U.S. v. Bettelyoun, 74-1295

• Decision Date: 15 October 1974
• Docket Number: No. 74-1295,74-1295
• Citation: 503 F.2d 1333
• Parties: UNITED STATES of America, Appellee, v. George BETTELYOUN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1333

503 F.2d 1333

UNITED STATES of America, Appellee, v. George BETTELYOUN, Appellant.

No. 74-1295.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 10, 1974.

Decided Oct. 15, 1974.

Terry L. Pechota, Rosebud, S.D., for appellant.

Larry Von Wald, Asst. U.S. Atty., Sioux Falls, S.D., for appellee.

Before LAY, ROSS and WEBSTER, Circuit Judges.

LAY, Circuit Judge.

George Bettelyoun, a 19-year-old Indian, was tried before a jury and found guilty of assaulting with a deadly weapon another Indian, in violation of 18 U.S.C. 1153 and S.D.C.L. 22-18-11. The primary issue on appeal is whether the district court abused its discretion at the arraignment by refusing to accept the defendant's plea of guilty to a lesser crime of simple assault. ¹ We find no error and affirm the judgment of conviction.

The defendant was indicted for assault with a deadly weapon on November 16, 1973. He entered a plea of not guilty. Later, as part of a plea bargain he agreed to enter a plea of guilty to a misdemeanor charge of simple assault. An information was prepared charging him with assault in violation of S.D.C.L. 22-18-1.

At his arraignment on the reduced charge, the defendant pled guilty. The district court, in compliance with Rule 11, Fed.R.Crim.Proc., noted that a plea bargain had been entered into between the defendant and the government and then proceeded to inquire into the factual basis for the plea. The United States Attorney related the facts surrounding the charge. He told the court that the evidence would show there had been a disturbance at a home on the Pine Ridge Indian Reservation during the early morning hours of October 5, 1973 and that tribal police were called to quell it. One of the officers who responded, George Pumpkinseed, was confronted by the defendant and four other individuals, at which time the defendant, George Bettelyoun, allegedly struck him on the forehead with the butt and barrel of a rifle. Following this brief description of the facts, the court asked the defendant if what the United States Attorney had said was substantially correct. After conferring with his counsel the following colloquy occurred:

(Mr. Trimble conferring with the Defendant.)

THE DEFENDANT: Your Honor, the striking of the man, I never struck him.

THE COURT: You say you didn't strike him?

THE DEFENDANT: No, sir.

THE COURT: Let's see--

MR. TRIMBLE (defense counsel): He is not charged with having struck him, Your Honor, only with that of assault.

THE COURT: Assault--

MR. TRIMBLE: In other words--

THE COURT: Striking him or attempting to strike; an attempt to strike would be an assault. Striking would be, of course, a battery.

But, counsel, was there any one else involved in it, did you say? Did you say there were others that you claim were involved in it?

MR. VON WALD (government counsel): Yes, Your Honor.

MR. TRIMBLE, Your Honor, the question I posed to my client just concerns what he is charged with here.

THE COURT: He is only charged with the assault.

MR. TRIMBLE, With the assault. And the question I asked him concerning the assault was in the position he was in that night, could this individual concerning his actions have thought that he was going to strike him and commit a battery on him.

THE COURT: Right.

MR. TRIMBLE, I believe that would be the proper question.

THE COURT: But you were there at that time. And other than the actual striking, which you deny, then were the facts substantially as stated by Government counsel, as near as you can recall?

THE DEFENDANT: Yes, sir.

THE COURT: And you did have the weapon in your hands, or you had something in your hands, at least, a gun-- whether it was loaded or not doesn't make any difference in this instance, but you had the weapon in your hand, is that right?

MR. TRIMBLE: Your Honor, there was some controversy on that point whether or not it was a weapon. There was a preliminary hearing on this. The Defendant identified this individual with having struck him, but he would not identify it as a rifle, as I recall. That's my recollection.

THE COURT: Well, I can't--

MR. VON WALD: Your Honor, I had no idea that this was going to occur. We have been through a preliminary hearing on this.

THE COURT: At this point I am going to deny your-- I'm going to refuse to accept your plea of guilty. And this matter and any other matters will be set for trial at the earliest possible moment.

We think the question is a close one. It appears that the defendant acknowledged facts constituting simple assault. It is possible to infer from the record that the court refused to accept his plea because he would not admit to actions constituting the greater crime of assault with a deadly weapon. If this was the basis for the court's decision, a serious question concerning abuse of discretion would be present. Cf. United States v. Martinez, 486 F.2d 15 (5th Cir. 1973); Griffin v. United States, 132 U.S.App.D.C. 108, 405 F.2d 1378 (1968). The government has informed us, however, both in its brief and at oral argument, that during the arraignment, defendant and his court-appointed counsel conferred at length and some disagreement or misunderstanding arose between the defendant and his attorney. ² The defendant does not dispute this fact. Under these circumstances it may be that the trial court doubted the voluntary nature of the plea or that the defendant fully realized its possible consequences. However, the record does not make this clear. ³

We find it unnecessary to attempt to discern the trial court's motive in rejecting the defendant's plea. Upon the rejection of the guilty plea neither the defendant nor his counsel objected to the court's refusal to enter the plea. We think this is a sine qua non to later assertion of error. Here neither the defendant nor his counsel made any attempt to urge the court to accept his plea after it was once refused. Cf. United States v. Gaskins, 158 U.S.App.D.C. 267, 485 F.2d 1046 (1973).

A district court necessarily possesses broad discretion in deciding to accept or reject a guilty plea. That discretion must be exercised within the explicit and exacting procedural requirements of Rule 11. Cf. United States v. Cody, 438 F.2d 287 (8th Cir. 1971). The district court must be assured that the defendant's plea is a knowing and understanding act. When it lacks that assurance, the court's discretion to reject that plea and go on with the trial of the case must be recognized. If a defendant feels the court has been overly cautious and that a refusal to accept a plea is misguided or unwarranted, he must make...