United States v. Ulano

Decision Date07 May 1979
Docket NumberNo. CR. 76-1382.,CR. 76-1382.
PartiesUNITED STATES of America v. Bernard ULANO.
CourtU.S. District Court — Central District of California


Andrea Sheridan Ordin, U. S. Atty., Robert Ramsey, Jr., Asst. U. S. Atty., Los Angeles, Cal., for Government.

Richard G. Sherman, Los Angeles, Cal., for Ulano.


BREWSTER, District Judge, By Designation.

The one count indictment in this case charges that the defendants, Bernard Ulano, Harry Franklin Ridgeway and others not identified, illegally conspired to distribute cocaine, a schedule II narcotic drug controlled substance, in violation of 21 U.S.C. § 846.

Each defendant, represented by his own employed counsel, pleaded guilty to the charge against him and was sentenced to a term in prison, to be followed by a statutory special parole term. Ridgeway accepted his sentence; Ulano is contesting his. Prior to being sentenced, Ulano changed lawyers and filed a motion for leave to withdraw his plea of guilty on the ground that it was not knowingly and voluntarily entered. His motion was predicated on the following claims:

1. Within a few days after Ulano was indicted in November, 1976, one Ullo, a racketeer friend of his, told him that the trial judge was a cocaine user who could be "fixed" by a gift of a substantial quantity of high quality cocaine. Ulano entered into a conspiracy with Ullo to put over such a "fix" in this case. Ulano was to furnish the dope and Ullo was to arrange for the rest, claiming that he would use defense counsel, Edward I. Gritz, to make the direct contact with the trial judge,1 with the idea that "the whole thing would be taken care of". After the entry of the plea about five months later, and before the imposition of sentence, Ulano found out that "there was no juice in the federal courts" and that there was no basis whatever for Ullo's claim that the judge could be corrupted.2 Ulano did not want to go along with his guilty plea if there was no "fix".

2. He entered his plea around 10:30 A.M. on March 30, 1977. He claimed that he had received an injection of Demerol around 11:00 P.M. on the night before to relieve pain he was suffering from hemorrhoids, and that he was still under the influence of the drug and of pain to the extent that he was not fully cognizant of what he was doing when he entered his plea.

3. He did not receive effective representation from his employed counsel, Gritz, up to and including the time when his plea of guilty was entered.

Before the motion was acted upon, Ulano filed a motion to disqualify the trial judge upon the ground that the judge had become "personally involved in this matter". The asserted basis for that general allegation was the judge's expressions of resentment to then defense counsel, Sherman, about the statements in the first motion that he was a cocaine user and could be "fixed". The motion to disqualify set out some of those alleged statements. They were in terms that even a wayfaring man could understand.3

The trial judge refused to grant an evidentiary hearing on the motions, and overruled them.

The refusal to give him an evidentiary hearing was one of Ulano's primary complaints on appeal. After hearing oral arguments, the Court of Appeals entered the following order of remand:

"After considering the points raised on appeal, we remand the case to the district court directing that the sentence be vacated (relief which has been sought by the appellant) and the case be transferred to another judge to reconsider the motion to vacate the plea of guilty."

The undersigned, a Senior United States District Judge from the Fifth Circuit, was holding court under assignment in the Ninth Circuit at the time of the remand, and was designated to hear the motion.

After a full evidentiary hearing,4 this Court has concluded that Ulano's motion to vacate his plea of guilty should be denied.

The indictment was returned on November 10, 1976. Ulano chose and employed Gritz to represent him. At his arraignment five days later, with Gritz present, Ulano entered a plea of not guilty. Ridgeway, represented by another attorney, also pleaded not guilty. The case was set for jury trial on January 18, 1977. After two continuances, the trial was ultimately set for March 29, 1977.

Ulano did not appear for trial on the date set. He called his attorney, Gritz, at about six o'clock that morning, and asked that a postponement of the trial be obtained on the ground that he was in severe pain from an attack of hemorrhoids that began the night before. When that request was presented, the Court ordered that a bench warrant issue for Ulano and that he be taken to the medical ward of the county jail for examination by an M.D. Federal officers took him in custody at his apartment at about 11:30 A.M., and transported him directly to the jail ward of the County Hospital at the University of Southern California Medical Center,5 where he was registered in at 12:00 noon. The trial was rescheduled to begin the following morning, depending on the report of Ulano's attending doctor.

Ulano's hospital record showed that he claimed that his trouble started with rectal pain while he was working at a discotheque during the night before his case was to go to trial. The examining physician diagnosed his problem as "rectal prolapse — reducible", and had a consultation with other doctors on the staff to decide whether surgery was necessary. The determination was that surgery was not needed, and the rectal prolapse was reduced without it.6 The doctor gave Ulano an intramuscular injection of 75 millimeters of Demerol before the reduction to keep him from suffering pain during the procedure. That injection was given at about 2:00 P.M. on March 29th, and was the only narcotic or anesthetic Ulano had on March 29th and 30th. After the reduction, he was moved to a jail ward in the hospital where he stayed until he went to court on the following morning. He suffered no acute distress after the reduction, and slept and rested well. He did not need a rectal ice pack for relief from pain during the night.

With his doctor's approval, Ulano was taken to court to face trial on the morning of March 30th.

Ulano met with his attorney, Gritz, shortly after he reached court at about 9:00 A.M., and learned that co-defendant Ridgeway, had decided to plead guilty. After a conference with Gritz, Ulano decided to plead guilty, too. Gritz recommended it and joined in Ulano's decision to change his plea.

The proceeding in which Ulano and Ridgeway each changed his plea to guilty began at 10:15 A.M. When the Judge was informed of the desires of the defendants to make such change, he went into a complete explanation of the nature of the charge, the maximum possible punishment, the rights of the defendants under the circumstances, and the consequences of a plea of guilty. He then engaged in a thorough, searching interrogation of each defendant and his counsel to determine whether such defendant was mentally competent to enter such a plea and whether his plea was voluntarily and understandingly entered and was factually supported. Before beginning such interrogation, he told the defendants, ". . . If at any time during the course of any statement I make or any questions I put to you, the statement or the question is unclear or you don't understand, I want you to interrupt me and speak up, or have your counsel interrupt and speak up, so that the record is quite clear here." Each defendant said he understood that. The questions were fair, and were designed for the purpose of trying to get at the truth.

At the conclusion of the explanation and interrogations, the Court asked Ulano: "How, then, again, do you plead, for the record, to the indictment, guilty or not guilty?" Ulano's response was, "I plead guilty." The Court thereupon made its detailed findings that Ulano's mentation was not affected by drugs or medicines, and that his plea was voluntarily and understandingly entered with full knowledge of the nature of the charge against him and the consequences of his plea. Ridgeway also pleaded guilty during the same proceeding. The pleas were accepted and the sentence hearing was set for May 2, 1977. They remained on bond pending the sentence hearing.

Ulano was in full possession of his faculties during all the period covering the occurrences on the morning of March 30th above set forth. The influence of the Demerol injection he had received about nineteen hours before could last a maximum of only four hours, and he was not under such influence to the remotest extent during the rearraignment proceedings. The sharp pain he was suffering the day before ceased when the rectal prolapse was reduced. While he was experiencing some discomfort from a residual soreness on the morning of March 30th, it was not severe and did not affect his mentation. He was alert and he fully understood the nature of the charge against him, the maximum possible punishment therefor, his rights under the circumstances, and the consequences of his plea of guilty.

Ulano's answers under oath to the questions propounded to him by the Court during the course of the proceeding positively refute the claims he is making as a basis for attacking the validity of his plea.

Shortly after the assignment of his case to a particular judge following his indictment on November 10, 1976, Ulano called Ullo and told him the identity of the judge. Ullo told him that the assignment of the case to that judge had been engineered by Gritz because the judge was a cocaine user and could be "fixed" by giving him a quantity of high quality cocaine. Ullo said that if they handled it that way, "the whole thing would be taken care of". Ulano entered into a conspiracy with Ullo to put over the "fix". Ulano was to furnish the cocaine and Ullo was to arrange to have the rest done. He told Ulano that he would have Gritz handle the...

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    • U.S. District Court — District of Arizona
    • March 23, 2017
    ...that there is nothing wrong with defense counsel advising a client of the possible consequences of a case. See United States v. Ulano, 468 F. Supp. 1054, 1067 (C.D. Cal. 1979), aff'd, 614 F.2d 1257 (9th Cir. 1980). Moreover, in U.S. vs. Garcia, 909 F.2d 1346 (9th Cir. 1990) the Ninth Circui......
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    ...to the merits of the charge against the defendant, thus passing on the question of his guilt or innocence." United States v. Ulano, 468 F. Supp. 1054, 1062 (C.D. Cal. 1979) (citations omitted), aff'd, 614 F.2d 1257 (9th Cir. 1980), rev'd on other grounds in part, 625 F.2d 1383 (9th Cir. 198......
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