Whaley v. United States

• Decision Date: 13 May 1968
• Docket Number: No. 9784.,9784.
• Parties: Samuel Curtis L. WHALEY, a/k/a Curtis L. Whaley, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

394 F.2d 399 (1968)

Samuel Curtis L. WHALEY, a/k/a Curtis L. Whaley, Appellant, v. UNITED STATES of America, Appellee.

No. 9784.

United States Court of Appeals Tenth Circuit.

May 13, 1968.

Paul H. Humann, Wichita, Kan., for appellant.

Guy L. Goodwin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee.

Before MARVIN JONES^*, SETH and HICKEY, Circuit Judges.

SETH, Circuit Judge.

The appellant was charged with possession of a shotgun with an overall length of less than twenty-six inches which had been transferred in violation of 26 U.S. C. § 5851. On April 12, 1965, the appellant entered a plea of guilty to the charge in open court and in the presence of his counsel. Thereafter judgment was entered on the plea, appellant was released on bond, and the court ordered that a presentence investigation be made. Shortly following his release, the case was set down for further proceedings but notices sent to the appellant by mail were returned, and he could not be located at the house where he had formerly resided. When he could not be found his bond was forfeited, and in June 1965 a fugitive warrant was issued.

The records show that the appellant was considered to be a fugitive until September 1967 when under the name of Samuel B. Whaley he filed a motion attacking the information to which he had entered his plea and revealing that he was a prisoner in the Kansas State Penitentiary. The United States District Court thereupon issued a writ of habeas corpus ad prosequendum ordering his appearance. Appellant appeared on September 29, 1967, pursuant to the writ and was thereupon sentenced. The appellant now appeals asserting two principal grounds. The first is that his sentencing was unreasonably delayed, and second that his constitutional right against self-incrimination had been violated.

The record shows that the trial court upon appellant's arraignment in April 1965 fully examined him as to the voluntary nature of his plea, his understanding of the crime, his right to a jury trial, and other related matters. The appellant at this initial plea admitted his guilt of the crime charged and his plea was accepted. Upon appellant's second apearance which was in 1967 in response to the writ of habeas corpus and prior to his sentencing, the court again reviewed with the appellant the previous examination relative to the entry of his plea of guilty. There was no doubt that the plea was voluntarily made after the appellant was fully advised as to his rights.

On this appeal the appellant contends that his constitutional privilege against self-incrimination is now a complete defense to the charges. In asserting this point, the appellant relies on Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, which concerned an offense under the same statute and wherein the Supreme Court held that upon a proper claim of the constitutional privilege against self-incrimination a complete defense could arise to prosecution either for failure to register a firearm under 26 U.S.C. § 5841 or for possession of an unregistered firearm under 26 U.S.C. § 5851.

Appellant in his argument acknowledges that generally a failure to object during the course of the trial will preclude raising the question on appeal; however, he contends that the matter should be treated as plain error under Rule 52 of the Federal Rules of Criminal Procedure. The appellant further urges, in view of the apparent voluntary nature of his plea, that it did not extend as a waiver to the issue here concerned for the reason that it was not then known that it could have been a defense to the charge, and nothing else he did constituted a waiver.

Thus the issue before us is whether or not the appellant, who made no claim to protection against self-incrimination and who entered a voluntary plea of guilty in open court, may on appeal assert effectively the claim of privilege against self-incrimination.

In comparing this case to Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, it must be noticed that in Haynes the claim of privilege against self-incrimination was raised by motion, was denied, and the plea of guilty then entered. In the case at bar no constitutional or other privileges or defenses were raised prior to the plea of guilty or at any time in the trial court.

We notice that the Court in Haynes refers to the "proper claim" of privilege as a "defense" to the charge. The use of the term "proper claim" occurs in several places in the opinion. This must mean that in the circumstances present in Haynes, something affirmative was required to constitute a "proper claim of privilege." Thus we understand the Court to hold in Haynes that if there is a plea of guilty there must be a showing that a "proper claim of privilege" was made in order to constitute a defense to the charge. The Court there found that such a claim had been made, and there really was no issue raised as to the quality or clarity of the claim. The Court also there stated that "* * there can be no suggestion here that petitioner has waived his privilege. * *" The Court uses the term "proper assertion" in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19...