discussing, in extensive detail, the evolution of "infamous crimes" to mean crimes punishable by more than a year's confinement
How later courts described this case
- discussing, in extensive detail, the evolution of "infamous crimes" to mean crimes punishable by more than a year's confinement
Written by the judges who cited it.
The opinion
ON REHEARING
The Government’s petition for rehearing is granted.
The Government’s petition for rehearing discloses for the first time the fact that criminal proceedings against Ramirez were initially instituted by indictment, and not by information as represented by both parties in briefs and oral arguments anteceding our prior opinion. 1 After our opinion came down, the Government sought and was granted leave to augment the record to accompany its rehearing petition to show the procedural history of the case. The supplemental record reveals that Ramirez was first indicted on November 28,1973, for unlawful importation of marihuana, possession of marihuana with intent to distribute, and smuggling marihuana in violation of 21 U.S.C. §§ 841 (a)(1), 952, 960, and 963, and 18 U.S.C. § 545 — all felonies. On February 20, 1974, the Government filed a superseding criminal information charging Ramirez with unlawful knowing possession of 55 pounds of marihuana in violation of 21 U.S.C. § 844 , a misdemeanor. No objection of any kind was made to this procedure. Instead, Ramirez waived a jury, and the case was tried to the court on stipulated facts. 2 When Ramirez appeared for sentencing, the court deferred further proceedings pursuant to 21 U.S.C. § 844 (b)(1), and, with Ramirez’ express consent, placed him on probation; it then dismissed the underlying felony indictment. Again, Ramirez made no objection of any kind.
On November 1, 1974, Ramirez reappeared in response to an order to show cause why his probation should not be revoked. The court revoked his probation and, after a hearing, committed Ramirez for a study under 18 U.S.C. § 5010 (e) upon finding that he was suitable for Youth Corrections Act treatment. On February 7, 1975, the court committed Ramirez for treatment and supervision under 18 U.S.C. § 5010 (b), over his lawyer’s objection that a Youth Act sentence was not appropriate for an offense under 21 U.S.C. § 844 . Ramirez appealed from the order revoking his probation.
The premise of our opinion on the record then before us was that Ramirez’ prosecution had been initiated by information, not by indictment. The augmented record establishes that that premise was factually unfounded, and our prior opinion cannot stand. As the full history has unfolded, it is evident that the case does not present the constitutional issue that we earlier decided. Ramirez, through his lawyer, made no objection to the superseding information, and the underlying indictment was not dismissed until Ramirez was sentenced *926 upon the information. (United States v. Golden (9th Cir. 1976) 532 F.2d 1244 (constitutional claim regarding special parole term for drug offenders would not be heard for first time on appeal); United States v. Hord (9th Cir. 1972) 459 F.2d 1003 (constitutional objection to Narcotics Addict Rehabilitation Act could not be raised on appeal). See also United States v. Malcolm (9th Cir. 1973) 475 F.2d 420 ; Estrella v. United States (9th Cir. 1970) 429 F.2d 397 .)
Ramirez also contends, in response to the Government’s rehearing petition, that we should reexamine Eller v. United States (9th Cir. 1964) 327 F.2d 639 , upholding imposition of a Youth Corrections Act sentence for a misdemeanor, in the light of the realities of such commitments as described by Judge Weigel, dissenting in United States v. Leming (9th Cir. 1975) 532 F.2d 647 , at 652 et seq., and recognized by the Second Circuit in United States ex rel. Sero v. Preiser (2d Cir. 1974) 506 F.2d 1115 . (See also Harvin v. United States (1971 en banc) 144 U.S.App.D.C. 199 , 445 F.2d 675, 680-82, 689-90, 693-701 ; People v. Olivas (1976) 17 Cal.3d 236 , 131 Cal.Rptr. 55 , 551 P.2d 375 .) The facts may be that the correctional facility in which Ramirez may be confined is every bit as bad or worse than an adult prison, but those facts are not contained in this record and we cannot reach the issue.
The opinion is ordered withdrawn, and the order below is affirmed.
. The Government’s brief on appeal stated the question on appeal:
“Whether sentencing under the Federal Youth Corrections Act requires appellant to be proceeded against by indictment.” In stating the procedural history of the case, the Government’s brief referred only to the criminal information upon which the appellant was convicted. Appellant’s statements of the question on appeal and of the procedural history were almost identical to the Government’s.
. The case is not controlled by United States v. Leming (9th Cir. 1975) 532 F.2d 647 , because there was no formal guilty plea. However, we are aware that the proceedings were conducted in an atmosphere redolent of plea bargaining that culminated in a submission to the court on stipulated facts, accurately termed in lawyers’ cant “a slow plea of guilty.”