United States v. Howard D. Brown

ROBB, Circuit Judge

(dissenting).

Counsel for the appellant argued in this court that the district judge committed error by accepting the stipulation of the appellant’s counsel at trial, that the appellant had committed the acts charged in the indictment, without first addressing the appellant personally. Over my dissent this court remanded the case to the district court to determine whether the “appellant himself, as distinguished from his counsel, waived his right to a trial on all issues” except the issue of insanity. In response to that remand District Judge Gesell has filed a memorandum in which he states in part:

“Defendant was indicted for forgery and uttering and found guilty by a jury. At the trial, defendant’s counsel relied solely on the defense of insanity. The facts on the merits were stipulated after defense counsel had advised the jury on opening that the defendant admitted the facts. It has apparently escaped the attention of the Court of Appeals that when a written stipulation covering the facts was offered the following appears in the transcript :

“ ‘THE COURT. The stipulation is satisfactory to the defendant, is it not?

“‘TRIAL COUNSEL. Yes, Your Honor, we have agreed to it.’

“Counsel for defendant, having. thus twice stated in open court in the presence of the defendant that the defendant conceded the facts, there was not. then and there cannot now be any question in this Court’s mind but that the statements of counsel were honestly made and correct. Daily a United States Distict Court proceeds on the assumption, proven reliable by long experience, that representations made in open court by trial counsel as officers of the Court are candid, truthful and may be accepted at face value. Were it otherwise, trials would bog down and the simplest issue of agreed fact could become the subject of repeated colloquy out of the jury’s presence. It would make some trials a complete farce.

“There was no need for the Court, given the assurances that this Court received, to interrogate the defendant to find out whether or not his counsel was making a truthful statement to the Court. As the Court was then aware, the stipulation was carefully prepared in written form; it was entered into after trial counsel had fully reviewed the underlying FBI report and had conferred frequently with the defendant. In accordance with the common practice in this jurisdiction, trial counsel kept in his personal files written authority from the defendant to enter into the stipulation. Trial counsel’s file contains the following, written in the handwriting of the defendant on the stipulation:

“ ‘Mr. O’Donnell, I authorize you to stipulate as much of the facts contained in this document as find necessary in order to avoid bringing in witnesses. Howard Davis Brown, Jr.’

“When this trial was over, the defendant, in writing, expressed appreciation for the humane consideration of the Court and stated he was deeply gratified to his attorney ‘who must be praised for handling my case.’ The Court, defense counsel, probation authorities, prison authorities and the U.S. Attorney spent substantial time out of court attempting to deal with this defendant’s rehabilitation problems. From the outset of the case defendant acknowledged his *1105 guilt and earnestly sought medical assistance which his unfortunate life history so clearly indicates he needs. The only tactic available to defense counsel was the one he adopted. Defendant, facing his seventh forgery conviction, was entirely consistent in permitting his counsel to stipulate the facts. Any chance he had on the insanity issue before the jury would have been greatly minimized if all of the sorry details of his course of conduct during the forgeries were brought forth through the mouths of the unfortunate victims.”

For the reasons stated in the memorandum of the district judge I would affirm the appellant’s conviction. To me it is incredible that the appellant did not fully approve the stipulation offered by his counsel in his presence; and his approval was wise. Reversal of the conviction on a contrary theory is in my judgment an excursion into fantasy. It is a ruling that does justice neither to the appellant nor to the public.

I cannot agree that “but for the reservation of the mental issue this was a plea of guilty.” There was no plea of guilty; there was a plea of not guilty supported by a defense of insanity. Yet the majority opinion, while disclaiming any intention to do so, invokes the provisions of Rule 11, Fed.R.Crim.P., pertaining to pleas of guilty. Holding in one sentence that “Rule 11 is inapplicable in this case since a plea of guilty is not involved” the opinion in the next sentence applies to the “limited circumstances of this ease” “the requirement of Rule 11 that the trial judge address the defendant personally”. It is said that “no reason appears why the Rule 11 procedure of addressing the defendant personally should not be required”. One reason immediately apparent to me is that those who drafted and later amended Rule 11 did not require such procedure in the case of stipulations; they required it only when the court accepted a guilty plea or a plea of nolo contendere. In my judgment the procedures of Rule 11 do not apply, are not intended to apply, and cannot reasonably be extended to apply, to a stipulation made in open court and in the presence of the defendant during the course of a trial. If it is held that they do apply to such a stipulation, even in what the majority refers to as “the limited circumstances of this case”, then a needless technical complication will be added to the already intricate rituals of criminal procedure, and as the district judge well says, trials will bog down and in some cases will become farcical.

The majority says its ruling will apply only in the circumstances of this case. Yet if the ruling has any validity at all there is no logical reason why it should be limited to those circumstances. Logically, it should apply to any stipulation as to a vital element of the prosecution’s case, that would otherwise be put in issue. I predict moreover that it will not be long before attempts are made to extend the holding to all such vital or important stipulations. Doctrines such as this have a way of extending their coverage, like oil on the water. The result will be further complications and confusions in the trial of criminal cases.

I dissent.