U.S. v. Robertson

• Decision Date: 07 February 1983
• Docket Number: No. 81-2117,81-2117
• Citation: 698 F.2d 703
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julius Carroll ROBERTSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 703

698 F.2d 703

UNITED STATES of America, Plaintiff-Appellee, v. Julius Carroll ROBERTSON, Defendant-Appellant.

No. 81-2117.

United States Court of Appeals Fifth Circuit.

Feb. 7, 1983.

Henry Hoppe, III, Slidell, La., for defendant-appellant.

Dane Smith, Asst. U.S. Atty., Tyler, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before WISDOM, RANDALL and TATE, Circuit Judges.

WISDOM, Circuit Judge:

The questions this appeal raises are whether a stipulation admitting the essential facts of a criminal offense should be treated as equivalent to a guilty plea and whether the stipulation coupled with a reservation of nonjurisdictional defenses in a motion to dismiss should be treated as equivalent to a conditional plea of guilty, not tolerated in this circuit. ¹ We hold that in the absence of prosecutorial coercion or cajolery the stipulation was equivalent to in-court testimony in a trial, that the defendant, represented by counsel, never intended the stipulation to have the consequences of a guilty plea, and that in the circumstances of this case the defendant was not entitled to the protections of Fed.R.Crim.P. 11.

I.

Julius C. Robertson, the defendant, was indicted for escape from custody in violation of 18 U.S.C. Sec. 751(a). On February 17, 1981, accompanied by his court-appointed attorney, Robertson entered a plea of guilty. After informing the defendant of his rights, the court accepted the plea, and set sentencing for March 2. On that date Robertson appeared in court, and asked for leave to withdraw his plea. The district court allowed him to do so and to enter a plea of not guilty. The court set the case for trial before a jury on March 9 and at the request of the defendant appointed new counsel to represent the defendant in the trial of his case. On March 6, counsel for Robertson filed a motion to dismiss the indictment asserting the nonjurisdictional defenses that (1) he was deprived of a speedy trial, (2) the indictment was defective for failure of the grand jury foreman to sign it, and (3) he was not taken before a magistrate until 71 days after his arrest.

March 9, the date of trial, in open court Robertson and his counsel stated that they wished to waive a jury and try this case on stipulated facts. The trial judge asked: "Is that correct? In other words, you don't want to put on any evidence other than what you give me in the way of stipulated facts?" Then he added: "I don't see why you couldn't do that because this is going down to a law question." Notwithstanding the stipulation, defendant's counsel called a witness to the stand and examined him.

The trial court ordered the waiver of a jury and stipulation filed, and denied the motion to dismiss. The stipulation, in full, reads as follows:

1) That the said JULIUS CARROLL ROBERTSON, named in the indictment herein is one and the same person as the JULIUS CARROLL ROBERTSON stipulating the facts contained herein.

2) That on or about the 13th day of November, 1980, JULIUS CARROLL ROBERTSON, having been lawfully committed to the custody of the Attorney General of the United States by virtue of a United States District Court was lawfully incarcerated at the Federal Correctional Institution, Texarkana, Texas.

3) That on or about the said date, the 13th day of November, 1980, JULIUS CARROLL ROBERTSON unlawfully and willfully escaped from such custody at the Federal Correctional Institution, in Texarkana, Bowie County, Texas.

March 23, 1981, the defendant appeared with his attorney and reiterated his plea of not guilty. The trial court entered a memorandum order finding Robertson guilty and imposed a sentence of six months to run consecutively with the sentence he was serving.

There was no doubt in the defendant's mind as to the nature of his plea or as to whether he had a trial. When the district court asked if he had anything to say before the court imposed sentence, he answered: "Yes, sir, I do. I hope the Court isn't angry because I didn't plead guilty."

Robertson changed attorneys and appealed. On appeal, his new court-appointed attorney did not brief or argue the issues which were the bases for the decision to change the plea of guilty and go to trial on a not guilty plea. Of course, had his counsel argued these issues, it would have been apparent that the stipulation could not be treated as the equivalent of a guilty plea. A guilty plea is "itself a conviction; nothing remains but to give judgment to determine punishment". Boykin v. Alabama, 1969, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-1712, 23 L.Ed.2d 274.

In oral argument before this Court counsel for Robertson said that he abandoned the defenses asserted in the motion for summary judgment because they were meritless. The United States Attorney said that he was surprised and "shocked" by the defendant/appellant's brief. There is no doubt that the trial judge, the trial attorneys, and the defendant (for what his view is worth) all considered that the proceedings on March 9 were a trial on a plea of not guilty. The stipulation, as is evident from its brevity and the nature of the offense, was no great concession by the defendant. When a man is in prison and then unaccountably out of prison, no exceptional legal talent is required to prove an escape. And in this case there is no evidence to suggest that the defendant was taken advantage of by prosecutorial coercion and cajolery. This case does not bear the slightest resemblance to Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 or to any progeny of Johnson v. Zerbst.

When the facts are as simple as they are here, and there is no reason to think that the prosecution has reached beyond the bounds of propriety in obtaining a stipulation, a stipulation should be encouraged in the interest of the parties and judicial economy. The stipulation here simply took the place of in-court testimony. In United States v. Escandar, 5 Cir.1972, 465 F.2d 438 this Court, in rejecting an argument that the testimony at trial was tantamount to a guilty plea, stated:

When a defendant affectively represented by competent counsel, takes the stand to testify, he does so invariably as his own proffer of evidence. The act is voluntary, it is not solicited by the other side. And that fact distinguishes in-court testimony from custodial investigations and guilty pleas. (Emphasis ours).

Although Escandar specifically dealt with in-court testimony, the same reasoning applies to a trial based on untainted stipulated facts.

II.

This Circuit's policy regarding conditional guilty pleas is stated in United States v. Sepe, 5 Cir., 474 F.2d 784, 789, aff'd on rehearing, 1973, 486 F.2d 1045. In Sepe, we reasoned:

The defendants at bar had every right to and did in fact plead not guilty. After their motion to suppress was overruled they were confronted by one of the hard choices of which our criminal process is replete..... They could go to trial on charges of armed robbery and put the government to its burden of proving their guilt, ... or they were free to bargain with the prosecutor and offer to plead guilty to a reduced charge or be promised leniency.... Even with the consent of the prosecution, pleas of guilty cannot be accepted while the defendant reserves the right to appeal on nonjurisdictional grounds.

Id. at 789; see United States v. Swann, 5 Cir.1978, 574 F.2d 1316, 1317-18.

We must say that the rule announced in Sepe is not universally accepted. See Advisory Committee Note to Rule 11(a), Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure for the United States District Courts, 1979, 85 F.R.D. 385, 388-89. Two other circuits have agreed that a conditional guilty plea is illogical and, therefore, improper. See United States v. Brown, 7 Cir., 499 F.2d 829, 832, cert. denied sub nom. Prader v. United States, 1974, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640; United States v. Cox, 6 Cir.1972, 464 F.2d 937, 945. Three circuits have refused to allow conditional guilty pleas because the federal rules do not expressly authorize them. United States v. Benson, 9 Cir.1978, 579 F.2d 508, 509-11; United States v. Nooner, 10 Cir.1977, 565 F.2d 633, 634; United States v. Matthews, 4 Cir.1973, 472 F.2d 1173, 1174. On the other hand, two circuits have expressly approved the entry of conditional guilty pleas. United States v. Moskow, 3 Cir.1978, 588 F.2d 882, 888-90; United States v. Burke, 2 Cir.1975, 517 F.2d 377, 379. Two other circuits have recognized the potential advantages of allowing conditional guilty pleas but have failed to allow their use. United States v. Clark, 8 Cir., 459 F.2d 977, 978-79, cert. denied, 1972, 409 U.S. 880, 93 S.Ct. 209, 34 L.Ed.2d 135; United States v. Dorsey, D.C.Cir.1971, 449 F.2d 1104, 1108 n. 18. The First Circuit has reserved judgment on the issue. United States v. Warwar, 1 Cir.1973, 478 F.2d 1183, 1185 n. 1.

There is a great deal to be said in favor of conditional guilty pleas as a way of preserving nonjurisdictional objections without unnecessary, time-consuming trials, and influential commentators have voiced approval of such pleas. 1 C. Wright, Federal Practice and Procedure: Criminal Sec. 175 (1982); ABA Standards Relating to the Administration of Criminal Justice 21-1.3 (2d ed. 1978); Comment, Conditioned Guilty Pleas: Post-Guilty Plea Appeal of Nonjurisdictional Issues, 1978, 26 U.C.L.A. L.Rev. 360; cf. Saltzburg, Pleas of Guilty and the Loss of Constitutional Rights: The Current Price of Pleading Guilty, 1978, 76 Mich.L.Rev. 1265. Indeed, an amendment to Rule 11 is currently pending in the Supreme Court. The amendment would expressly allow conditional guilty pleas. ²

We do not, however, write upon a clean slate. Sepe firmly establishes the policy of the Fifth Circuit disallowing conditional guilty pleas. Extension of the Fifth Circuit rule into the not guilty plea/stipulated facts situation, however, would...