United States v. Frederick, No. 17253.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: PER CURIAM
• Citation: 405 F.2d 129
• Parties: UNITED STATES of America v. Andrew G. W. FREDERICK a/k/a J. W. G. Ferland, Appellant.
• Docket Number: No. 17253.
• Decision Date: 30 December 1968

405 F.2d 129 (1968)

UNITED STATES of America
v.
Andrew G. W. FREDERICK a/k/a J. W. G. Ferland, Appellant.

No. 17253.

United States Court of Appeals Third Circuit.

Submitted on Briefs October 7, 1968.

Decided December 30, 1968.

William S. Schweers, Harrington, Feeney & Schweers, Pittsburgh, Pa., for appellant.

W. Wendell Stanton, Asst. U. S. Atty., Gustave Diamond, U. S. Atty., Pittsburgh, Pa., for appellee.

Before McLAUGHLIN, STALEY and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

On February 21, 1966, appellant was arrested in Pittsburgh, Pennsylvania by Pittsburgh police on a local matter. He was turned over to the custody of the United States Marshal in Pittsburgh on a Federal warrant based on a complaint and information filed in the United States District Court of the Eastern Division of the Northern District of Ohio, charging him with transportation in interstate commerce of a falsely made check in the amount of $200. Appellant while being held in the Allegheny County jail advised the District Attorney twice in writing that he wished to plead guilty under Rule 20 of the Federal Rules of Criminal Procedure; that he was seriously ill and was not receiving proper

405 F.2d 130

medication and wanted the matter disposed of as soon as possible. At the time appellant was taken into Federal custody he had about $800 in cash on his person. This was his money which he said he had borrowed for medical and doctors' bills. The district attorney notified appellant that he had a right to court appointed counsel but to so qualify would have to establish his indigence. On March 3, 1966, there was a hearing in the case before the district court. According to the appellant, he had been released from a prior Federal prison commitment on the previous December 23rd. Appellant told the court he wished to plead guilty. The court stated that it seemed doubtful that appellant was entitled to have counsel appointed for him as an indigent, that appellant, who admittedly had about $800 was possessed of sufficient funds to hire counsel. Appellant said "I would rather waive it your Honor, because there is nothing that can be said except the mitigating circumstances and leave it open." He said he would sign a waiver of counsel form. The district attorney agreed to have the necessary papers prepared. The court said to appellant "We want you to be sure that you know what you are charged with." Appellant answered "I do absolutely". The court twice more told appellant that he had the right to the advice of counsel

There was a further hearing on March 24, 1966. The court asked appellant "Do you still wish to complete this without any counsel representing you?" Appellant answered "Yes". He was requested to move closer to the judge who said to him "Do you still wish to proceed to sentence without the aid or assistance of counsel?" Appellant answered "Yes, Your Honor, if I am permitted." The court answered that he was so permitted; that "The Court is under the obligation to inquire if you realize the offense with which you are charged and the possible consequences, I believe you do." Appellant answered "Yes sir." The court continued "So you freely and voluntarily waive the right to be represented by counsel?" Appellant answered "Yes". The court said "Realizing if necessary you are unable to afford counsel that the Court will appoint counsel for you?" Appellant replied "Yes sir". The court read the charge against appellant in the Information and queried "You know what you are charged with?" Answer, "Yes, sir". The district attorney said to appellant "Now the maximum penalty for this offense can be a fine of $10,000 and imprisonment for ten years or both. That is the maximum. Do you know that?" The appellant answered "No, sir, I did not know that." The court, before any acceptance of the plea, said to appellant "You said that you did not know what the maximum penalty could be. Were you not — Did you not plead guilty, and were you not sentenced under an identical charge in 1963?" Appellant answered "Yes, sir". He said he did not recall whether he was informed then of what the penalty could be. He admitted he had been sentenced that time to three years imprisonment which he claimed was cut to two years. The court said "All right. So you are aware now of the penalty?" Appellant answered "Yes, sir". The court asked him "Under the Act you are still willing to enter a plea?" Appellant answered "Yes, sir." There was a further colloquy as follows:

"THE COURT: Do you enter this plea voluntarily and on your own account?

MR. FREDERICK: Yes, sir.

THE COURT: Have any threats or promises or inducements been made to induce you to enter this plea?

MR. FREDERICK: No, sir.

THE COURT: Did anybody tell you that you would possibly receive a lighter sentence?

MR. FREDERICK: No, sir.

THE COURT: We will accept the plea.

MR. STANTON: Mr. Pitcher, would you advise the Court of the results of your investigation?

405 F.2d 131

(D. Pitcher, an Agent of the Federal Bureau of Investigation was sworn.)

THE COURT: Before you proceed, the reporter has informed me that the defendant stated in a low voice which the Court did not hear when I asked if the plea was entered voluntarily, he said, `I have to now. I have no choice.\' What do you mean by that?

MR. FREDERICK: Well, I meant that I did plead guilty, Your Honor.

THE COURT: In other words, your plea of guilty is because you are actually guilty of the offense and it can be proven?

MR. FREDERICK: Yes, sir.

THE COURT: All right, we will proceed."

F.B.I. agent Pitcher presented to the court an amazing background of similar offenses by appellant, including four convictions. The court asked appellant if he wished to challenge or contradict anything that Mr. Pitcher had said...