U.S. v. Bambulas, 77-1866

• Decision Date: 23 February 1978
• Docket Number: No. 77-1866,77-1866
• Citation: 571 F.2d 525
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Daniel BAMBULAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 525

571 F.2d 525

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Daniel BAMBULAS, Defendant-Appellant.

No. 77-1866.

United States Court of Appeals, Tenth Circuit.

Submitted Feb. 2, 1978.

Decided Feb. 23, 1978.

James P. Buchele, U. S. Atty., Mary K. Briscoe, Asst. U. S. Atty., Topeka, Kan., appeared on behalf of plaintiff-appellee.

Before SETH, PICKETT and McWILLIAMS, Circuit Judges.

PER CURIAM.

This is an appeal from an order of the United States District Court for the District of Kansas denying relief sought pursuant to 28 U.S.C. § 2255.

Appellant Bambulas, presently incarcerated in the federal penitentiary, Atlanta, Georgia, was convicted upon a plea of guilty to charges of conspiracy and introduction of contraband in the federal penitentiary at Leavenworth, Kansas, and conspiracy to use interstate commerce to promote unlawful activity in violation of the narcotics laws of Illinois, New York, and Kansas. The appeals of several of Bambulas' co-defendants who also plead guilty were disposed of in United States v. Levine, 457 F.2d 1186 (10th Cir. 1972).

Bambulas first challenges the appointments of the two special prosecutors in his case. However, this court has had occasion to uphold appointments pursuant to 28 U.S.C. § 515 in the face of attacks both on specificity and the delegation of the Attorney General's authority. United States v. Katz, 535 F.2d 593 (10th Cir. 1976), cert. denied; United States v. Redmond, 546 F.2d 1386 (10th Cir. 1977). In addition, as the district court noted, Bambulas waived this claim by failing to raise it prior to his plea of guilt. Cappola v. United States, 526 F.2d 764, 772-773 (10th Cir. 1975).

Bambulas next complains that his guilty plea was coerced by a prosecutorial offer to dismiss Counts II and III, if and only if all co-defendants, other than co-defendant Franks, agreed to plead guilty to Counts I and IV. Government affidavits filed in the district court below denied the presence of the alleged "all or nothing" ultimatum.

The transcript of the Rule 11 proceedings conducted on February 16, 1971, indicates that Bambulas denied the presence of any promises, threats, or coercion, and assured the court of the voluntariness of his plea. The truth and accuracy of Bambulas' statements are regarded as conclusive in the absence of a believable reason justifying departure from their apparent truth. Hedman v. United States, 527 F.2d 20, 22 (10th Cir. 1975). The recent Supreme Court decision in Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977), does not dictate the contrary conclusion where Bambulas offers no explanation for his statements at the Rule 11 proceeding.

In addition, the United States Supreme Court has recognized that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system, and that, properly administered, they can benefit all concerned. Blackledge v. Allison, supra ; Bordenkircher v. Hayes, --- U.S. ----, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). This court has also recognized that plea bargaining is permissible when conducted fairly and when the rights of the accused are fairly protected. United States v. Levine, supra.

Clearly a plea bargain consisting of the government's agreement to drop Counts II and III in exchange for a guilty plea to Counts I and IV would be permissible. Assuming that the government also required all co-defendants to enter guilty pleas, this aspect of the plea bargain in our view does not invalidate the guilty plea, where Bambulas has previously denied any coercive effect, where he has failed to explain his prior denial, and where the government fulfilled its part of the plea bargain by moving to dismiss the other counts which motion was granted by the court. Cf. Bordenkircher v. Hayes, supra.

Next, Bambulas argues that his guilty plea was coerced due to the denial of his right to speedy trial. We note that this claim was raised on direct appeal by Bambulas' co-defendants and was considered to have been waived by the failure to assert such claim prior to entry of voluntary pleas of guilt. In addition, reaching the merits of this claim does not entitle Bambulas to relief. Pre-indictment delay does not violate due process in the absence of a showing of actual prejudice and that the delay was purposeful in order to gain a tactical advantage. United States v. Allen, 554 F.2d 398 (10th Cir. 1977). Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975) does not alter this conclusion, where the placement of Bambulas in segregation upon discovery of his role in activities constituting the federal offense is not an arrest for purposes of initiating the time period for measuring pre-indictment delay. Rivera v. Toft, 477 F.2d 534, 535 (10th Cir. 1973)...