U.S. v. Terrack, 74-1283

• Citation: 515 F.2d 558
• Decision Date: 16 April 1975
• Docket Number: No. 74-1283,74-1283
• Parties: UNITED STATES of America, Appellee, v. John Craige TERRACK, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 558

515 F.2d 558

UNITED STATES of America, Appellee, v. John Craige TERRACK, Appellant.

No. 74-1283.

United States Court of Appeals Ninth Circuit.

April 16, 1975.

Bruce Margolin (argued), Hollywood, Cal., for appellant.

Kenneth P. Snoke, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appellee.

OPINION

Before ELY and WALLACE, Circuit Judges, and POWELL, ^* District Judge.

POWELL, District Judge.

A complaint was filed against the appellant Terrack on April 9, 1971, charging him with the smuggling of narcotics into the United States. On June 4, 1973 Terrack was arrested. An indictment was returned on August 13, 1973 charging Terrack with conspiring to import narcotics into the United States and with the importation of narcotics in violation of 21 U.S.C. § 174. Terrack was arraigned in the District Court on September 17, 1973. His attorney moved to dismiss the indictment on the ground that Terrack's right to a speedy trial had been violated. That motion, made on October 11, 1973 was denied by the District Court on October 29, 1973. A superseding information was filed against Terrack on November 13, 1973, charging him with the unlawful distribution of a narcotic not contained in its original stamped package, a violation of 26 U.S.C. § 4704(a). On that same day a stipulation of facts was filed by the prosecution and Terrack through Terrack's then defense attorney. Solely on the basis of this stipulation, Terrack was found guilty by the district judge.

The first issue raised in this appeal is whether Terrack was denied his right to a speedy trial as a result of government delays in issuing a complaint against him, arresting him, indicting him, or arraigning him. In Northern v. United States, 455 F.2d 427 (9th Cir. 1972), our court recognized that "the filing of a criminal complaint, or indictment where there is no complaint, marks the inception of the speedy trial guarantee of the Sixth Amendment." Id. at 429. And the Supreme Court has held, in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), that the right to speedy trial attaches once "the putative defendant in some way becomes an 'accused.' " Id. at 313, 92 S.Ct. at 459. Black's Law Dictionary defines a complaint as "A charge, preferred before a magistrate having jurisdiction, that a person named (or unknown person) has committed a specified offense . . . ." Similarly, Rule 3 of the Federal Rules of Criminal Procedure describes a complaint as "a written statement of the essential facts constituting the offense charged." Clearly, once a suspect is "charged" with an offense, he is an "accused" within the meaning of United States v. Marion,supra. But cf. Favors v. Eyman, 466 F.2d 1325 (9th Cir. 1972); United States v. Griffin, 464 F.2d 1352 (9th Cir. 1972). In the present case, however, all pre-indictment delays were primarily caused by Terrack's successful evasion of capture. Federal officers had obtained an arrest warrant, attempted to locate Terrack, notified local law enforcement agencies in areas where Terrack had previously resided, and eventually designated Terrack as a fugitive from justice. Terrack cannot claim a violation of his Sixth Amendment rights by reason of delays of his own making.

Furthermore, the delay between arrest and indictment was the result of an on-going negotiations between Terrack and the Government regarding Terrack's possible cooperation in the investigation of other narcotics violators. When those negotiations broke down, the Government swiftly indicted Terrack. Terrack was arraigned on the indictment approximately one month after the indictment was filed, and he has made no showing of prejudice as a result of that delay. Although over two years elapsed between the filing of the complaint and the arraignment, Terrack's right to a speedy trial has not been violated according to the standards set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The appellant here also contends that the stipulation signed by him and his trial counsel and filed with the court was a de facto guilty plea which required the trial judge to conduct an examination of the defendant pursuant to Rule 11, Federal Rules of Criminal Procedure. ¹ The stipulation admitted the facts alleged in the information, followed the statute on which the charge was based and recited facts peculiarly within appellant's knowledge. No exhibits were filed or testimony taken. A jury had been waived. The trial judge found the defendant guilty after personally questioning him as to his understanding of the consequences of filing the stipulation. ² We hold that a Rule 11 examination is inapplicable here and that the examination of the defendant was sufficient.

In United States v. Garcia, 450 F.2d 287 (9th Cir. 1971), this court passed on the question presented here. It held that on the filing of a stipulation amounting to a "defacto guilty plea," Rule 11 did not require extensive examination of the defendant.

"The second complaint urged is that the Stipulation of Facts constituted a de facto plea of guilty and that the court was required to question the appellant as to his knowledge of the consequences of the filing of the stipulation as though it were a guilty plea, pursuant to Rule 11 Fed.R.Crim.P. The record discloses, however, that the trial court did question appellant carefully as to appellant's knowledge of the document and consent to its filing before he accepted it in evidence. R.T. 6-7. That record does not support appellant's contentions." Id. at 288.

Other jurisdictions have held that the requirements of Rule 11 are applicable only to guilty pleas and not to stipulations. See, United States v. Dorsey, 146 U.S.App.D.C. 28, 449 F.2d 1104, 1107 (1971); United States v. Brown, 138 U.S.App.D.C. 398, 428 F.2d 1100, 1102 (1970). No authority has been cited which holds that Rule 11 is triggered by anything other than a plea of guilty or nolo contendere. Here appellant pleaded not guilty and signed and filed his stipulation.

In the Brown case, the trial judge did not personally address the defendant to determine the voluntariness of the waivers involved. United States v. Brown, supra at 1103-1104. Here, the appellant was addressed personally. He signed a simple, straightforward, four-paragraph stipulation. It was signed in nearly identical form on two separate occasions, once on November 13, 1973 (R.T. 18) and again on November 14, 1973 (R.T. 25).

Rule 11 requires the trial judge to personally address the defendant as to his knowledge of the charge and the consequences of his guilty plea before the court will accept the plea. These procedures are intended to establish on the record that the plea of guilty is voluntarily entered by the defendant. See, McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Halliday v. United States, 394 U.S. 831, 832, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). A guilty plea waives important constitutional rights including the right to confront one's accusers. McCarthy v. United States, supra, 394 U.S. at 466, 89 S.Ct. 1166. Rule 11 procedures are designed to show that the defendant's waivers are intentional relinquishment or abandonment of known rights. Groves v. Prickett, 420 F.2d 1119, 1125 (9th Cir. 1970); Kates v. Nelson, 435 F.2d 1085, 1088 (9th Cir. 1970). To extend Rule 11 to include stipulations would add formality where none is required. ³ See United States v. Escandar, 465 F.2d 438, 440 (5th Cir. 1972).

Affirmed.

ELY, Circuit Judge (dissenting):

I respectfully dissent.

The basic issue is whether Terrack's stipulation was, for all intents and purposes, a guilty plea, entitling Terrack to such due process rights as are accorded to all accuseds who plead guilty. Terrack stipulated to the existence of all elements of the offense charged, couching his stipulation in the language of the statute under which he had been indicted. Furthermore, he stipulated to all the facts charged by the Government, including facts uniquely within his own knowledge, i. e., that he "knowingly, intentionally, and unlawfully placed the above described books in the mail." No witnesses or evidence other than the stipulation was presented to the court prior to Terrack's conviction. The trial judge, apparently recognizing that Terrack was entering a de facto guilty plea by assenting to the stipulation, twice informed him that his entry of the stipulation constituted a guilty plea. The court stated:

"By signing this stipulation agreeing to it you are virtually stipulating to the facts which indicate your guilt."

" . . . And that for all intents and purposes this is a guilty plea except for the fact that you are doing it in this manner in order to preserve the rights on your position which you asserted on the motion for dismissal?" ¹

The prosecution argues, and the majority appears to agree, that the fact that the stipulation was not formally designated as a guilty plea is determinative even though its consequences were precisely the same as a guilty plea, assured conviction without any production of prosecutorial evidence. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) does not support that conclusion. In Boykin, the Supreme Court noted that a guilty plea has the following characteristics:

"A plea of guilty is more than a voluntary confession made in open court, it also serves as a stipulation that no proof by the prosecution need be advanced. . . . It supplies both evidence and verdict, ending controversy." (emphasis added) (citation omitted.) Id. at 243-44, 89 S.Ct. at 1712 n. 4.

Terrack's stipulation to the prosecution's entire case was, exactly like a guilty plea, a stipulation that no proof by the prosecution was necessary. Once the stipulation was made, the controversy was effectively terminated, and accordingly, the trial judge summarily made his judgment of conviction. Thus, Terrack's stipulation contained the basic characteristics...