Petition — O'Donnell v. United States

IN THE

Supreme Court of the United States’® 7 %”

MICHAEL RODAK, JR. CLERE

October Te es

No. ma - 2 3 4

BoypbD JAMES O'DONNELL,

Petitioner,

VS.

UNITED STATES OF AMERICA.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

THOMAS R. SHERIDAN,

DOUGLAS G. SIMON,

RANDALL E. GREER,

SIMON & SHERIDAN,

2404 Wilshire Boulevard, Suite 400,

Los Angeles, Calif. 90057,

Attorneys for Petitioner

Boyd James O’ Donnell.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

I a ceatieishiibieniie l

EE Se ae ee Se ene Lan 2

TE CS sh ROTOR MT Oe 2

Constitutional Provisions and Statutes Involved ...... 2

Constitution of the United States -.......0...0.0000.... 2

EE EE OL IEE ET 2

Sixth Amendment ............... PSST RES sc ore RED 3

Federal Rules of Criminal Procedure .......... eae 3

ER REIS DRE ESC eee ee PO nO IEE. 3

I a 3

Reasons for Granting the Writ ......................---.....---- 6

I

A Plea of Guilty Does Not Waive Fifth Amend-

ment Due Process and Sixth Amendment

Speedy Trial Violations .....................cccc<ss.-e-ees

II

The District Court Failed to Comply With Rule

11, Federal Rules of Criminal Procedure, When

It Accepted Petitioner’s Guilty Plea _.................

ERIE RR naeeE ree ee aR NUE ee ne RT

Appendix A. Opinion of the Court of Appeals for

the Ninth Circuit Dated July 20, 1976 ....App. p.

12

1

TABLE OF AUTHORITIES CITED

Cases Page

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182,

ee ey te eee 7

McCarthy v. United States, 394 U.S. 459, 89 S.Ct.

1166, 22 L.Ed.2d 418 (1969) ...00000 0... 9, 10, 12

Menna v. New York, 423 U.S. 61, 96 S.Ct. 241

fs SS... | RR Rneteener 6,7,8, 9

Santobello v. New York, 404 U.S. 257, 92 S.Ct.

— we JR £ f . ff; .) eee 10

United States v. Crook, 526 F.2d 708 (Sth Cir.

STEN. siamese adeclamisausncnamacneammuaiidiansiaduiiiemmncliaianan: 11

United States v. Marion, 404 U.S. 307, 92 S.Ct.

@ RB & F Ze. ) RCE 7

United States v. Yazbeck, 524 F.2d 641 (lst Cir.

SRS cere eo ke ae ee 12

Rules

Federal Rules of Criminal Procedure, Rule 11....

i a ae a eee 2, 3, 9, 10, 11, 12

United States Code, Title 18, Sec. 152 ............ 4, 10

Supreme Court of the United States

October Term, 1976

ee

BoyD JAMES O’DONNELL, _

Petitioner,

vs.

UNITED STATES OF AMERICA.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Boyd James O’Donnell, your petitioner, respectfully

prays that a Writ of Certiorari be issued to review

the judgment of the United States Court of Appeals

for the Ninth Circuit entered in the above-entitled

cause on July 20, 1976.

Opinions Below.

In accordance with a plea bargain, petitioner pleaded

guilty to one count of a 31 count indictment in the

United States District Court for the District of Arizona.

Petitioner appealed to the United States Court of Ap

peals for the Ninth Circuit, and on July 20, !976,

a panel of that court affirmed petitioner’s conviction.

The opinion has not yet been officially reported. It

is reproduced as Appendix A hereto.

—_—

Jurisdiction.

The opinion of the United States Court of Appeals

for the Ninth Circuit was filed on July 20, 1976.

(See Appendix A. )

The jurisdiction of this Court is invoked under 28.

U.S.C. §1254(1).

Questions Presented.

I

Does a plea of guilty waive Fifth Amendment due

process and Sixth Amendment speedy trial violations?

II

Did the District Court comply with Rule 11, Federal

Rules of Criminal Procedure, in accepting petitioner’s

plea of guilty?

Constitutional Provisions and Statutes Involved.

Constitution of the United States.

Fifth Amendment.

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the militia, when

in actual service in time of War of public danger;

nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty or

property, without due process of law; nor shall private

property be taken for public use, without just compen-

sation.

—

Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed

of the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have compul-

sory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defense.

Federal Rules of Criminal Procedure.

Rule 11. Pleas.

A defendant may plead not guilty, guilty or, with

consent of the court, nolo contendere. The court may

refuse to accept a plea of guilty, and shall not accept

such a plea or a plea of nolo contendere, without

first addressing the defendant personally and determin-

ing that the plea is made voluntarily with understand-

ing of the nature of the charge and the consequences

of the plea. If a defendant refuses to plead or

if the court refuses to accept a plea of guilty or

if a defendant corporation fails to appear, the court

shall enter a plea of not guilty. The court shall not

enter a judgment upon a plea of guilty unless it is

satisfied that there is a factual basis for the plea.*

Statement of the Case.

Petitioner was initially charged in a two count indict-

ment returned on May 30, 1974. Shortly thereafter,

*This is the text of Rule 1] as enacted when petitioner

offered his guilty plea on November 18, 1975. However, Rule 11

has been substantially revised, and such revisions were effective

on December 1, 1975.

—

petitioner was properly arraigned and entered pleas

of not guilty to both counts. Trial was set to commence

on November 26, 1974, approximately six months later.

Prior to trial, on November 5, 1974, the government

filed a motion to vacate the trial date. Over the strenu-

ous objections of defense counsel, the district court

granted this motion but did not set a new trial date.

Thereafter, on January 8, 1975, a superseding indict-

ment was returned, charging the defendant with 31

counts of making a false oath in connection with a

bankruptcy proceeding, in violation of 18 U.S.C. §152.

The defendant was properly arraigned shortly there-

after, and entered a not guilty plea to all 31 counts.

Trial was set to commence on November 18, 1975,

almost one year from the date initially set for trial.

On October 30, 1975, petitioner filed a motion

to dismiss the superseding indictment upon two related

constitutional grounds. First, petitioner was denied a

speedy trial, as required by the Sixth Amendment,

based upon the government’s prejudicial post-indictment

delay. Second, due process of law was denied petitioner,

in violation of the Fifth Amendment, based upon the

government’s prejudicial pre-indictment delay. After a

hearing on November 7, 1975, the motion was denied

by the district court.

On November 18, 1975, in accordance with a plea

bargain, petitioner offered a plea of guilty to Count

XI of the superseding indictment. The district court

accepted the guilty plea. The government then dismissed

the remaining counts of the superseding indictment,

and all proceedings against petitioner’s former wife,

Joan O'Donnell.

onliiun

On December 8, 1975, almost 6 years from the

date of the alleged offense, the Honorable Walter E.

Craig, United States District Judge, sentenced the de-

fendant to 3 years in the custody of the Attorney

General. A stay of execution was granted until Decem-

ber 29, 1975.

On December 16, 1975, a timely notice of appeal

was filed with the Clerk of the United States District

Court, District of Arizona. Since the filing of the

initial indictment, petitioner has remained at liberty

on the bond.

On May 13, 1976, this matter was argued before

a panel of the Court of Appeals for the Ninth Circuit.

On July 20, 1976, an opinion of that panel was filed

affirming petitioner's conviction. (See Appendix A.)

This petition for a writ of certiorari seeks to review

the judgment of the Court of Appeals for the Ninth

Circuit affirming petitioner’s conviction.

—

REASONS FOR GRANTING THE WRIT.

I

A Plea of Guilty Does Not Waive Fifth Amendment

Due Process and Sixth Amendment Speedy Trial

Violations.

This Court has never spoken directly to the issue

of whether a defendant waives by his guilty plea a

violation of the Due Process Clause of the Fifth Amend-

ment based upon unreasonable pre-indictment delay.

Similarly, this Court has yet to decide whether a de-

fendant’s guilty plea waives his claim under the Sixth

Amendment based upon a denial of a speedy trial.

However, a recent opinion by this Court does provide

some guidance.

In Menna v New York, 423 U.S. 61, 96 S.Ct.

241 (November 17, 1975), this Court held that a

defendant’s rights under the Double Jeopardy Clause

of the Fifth Amendment are not waived by a guilty

plea.

“Where the State is precluded by the United States

Constitution from hauling a defendant into court

on a charge, federal law requires that a conviction

on that charge be set aside even if the conviction

was entered pursuant to a counseled plea of guilty.

Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct.

2098, 2103, 40 L.Ed.2d 628 (1974).” 423 USS.

at 62, 96 S.Ct. at 242 (footnote omitted).

The footnote which appeared following the above quote

is particularly relevant to the instant case. It reads,

in pertinent part, as follows:

“A guilty plea, therefore, simply renders irrelevant

those constitutional violations not logically incon-

sistent with the valid establishment of factual guilt

_

and which do not stand in the way of conviction

if factual guilt is validly established. Here, however,

the claim is that the State may not convict peti-

tioner no matter how validly his factual guilt

is established. The guilty plea, therefore, does

not bar the claim.

“We do not hold that a double jeopardy claim

may never be waived. We simply hold that a

plea of guilty to a charge does not waive a

claim that—judged on its face—the charge is

one which the State may not constitutionally prose-

cute.” 423 U.S. at 62, 96 S.Ct. at 242, n.2.

(Emphasis added. )

Thus, a constitutional violation which would prevent

the government from maintaining the prosecution is

not waived by a plea of guilty, even if the plea is

made voluntarily and knowingly. An application of

the above rationale involves the constitutional violation

considered in Menna, the Double Jeopardy Clause.

Once jeopardy has attached, the government, either

state or federal, may not prosecute an individual for

the same offense.

Similarly, once it is determined that the government

is guilty of pre-indictment delay or post-indictment

delay, the prosecution must be terminaied.

United States v. Marion, 404 U.S. 307, 324,

92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971);

Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct.

2182, 2188, 33 L.Ed.2d 101 (1972).

Thereafter, the government is forever barred from pro-

ceeding on that offense.

The situation presented by the instant case is analo-

gous to that presented in Menna. If prejudicial pre-

_—

indictment delay or post-indictment delay is found to

be present in the instant case, then the government

is constitutionally barred from maintaining this prosecu-

tion. Thus, under the rationale of Menna, petitioner,

by pleading guilty, did not waive his right to assert

these constitutional violations.

In its opinion the Ninth Circuit held that a guilty

plea does waive Fifth Amendment due process and

Sixth Amendment speedy trial violations because:

“The Constitution protects the accused from a

conviction by trial but not a conviction by way

of a plea of guilty.” (See Appendix A, p. 8.)

(Emphasis added. )

The Court of Appeals reasoned that the purpose of

these constitutional provisions is “to insure that factual

guilt is validly established,” and that “/t]he existence

of such violations is consistent with guilt as a matter

of fact.” (ibid. )

To allow such an interpretation of these vital consti-

tutional provisions will have serious ramifications, both

for future defendants and for the federal courts. The

Ninth Circuit’s opinion failed to consider that dilatory

tactics by the government may have influenced a defend-

ant to plead guilty, as when key defense witnesses have

died or otherwise become unavailable. Further, if the

government is guilty of pre-indictment or post-indictment

delay, it may cure these constitutional violations by sim-

ply offering the defendant a plea bargain which he can-

not refuse. At that point, the government has placed a

price on the defendant’s exercise of his constitutional

rights. If the defendant accepts the plea bargain, then

he waives his right to assert on appeal these constitu-

tional violations which should have terminated the prose-

_

cution in the first instance. If he refuses the plea

bargain then he may raise these issues on appeal,

but must first go through a trial where his defense

has been prejudiced by the government’s dilatory tactics

and, consequently, there exists a greater likelihood of

conviction. Under such circumstances, cases which could

have been disposed by plea will go to trial solely

to preserve these constitutional issues on appeal. Such

a rule does not promote judicial economy.

In light of this Court’s clear holding in Menna

that it is the government's ability or inability to maintain

a prosecution which is the key in determining whether

a plea of guilty waives a particular constitutional viola-

tion, this erroneous and restrictive holding by the Court

of Appeals should be reviewed by this Court. To

do otherwise will result in serious constitutional preju-

dice to future defendants to which the federal courts

should not be party.

For the reasons expressed above, petitioner requests

that certiorari be granted to decide this constitutional

Question.

Il

The District Court Failed to Comply With Rule 11,

Federal Rules of Criminal Procedure, When It

Accepted Petitioner’s Guilty Plea.

In McCarthy v. United States, 394 U.S. 459, 89

S.Ct. 1166, 22 L.Ed.2d 418 (1969), this Court held

that a district court must strictly adhere to the provisions

of Rule 11, F.R.Cr.P., in accepting a guilty plea.

In the absence of such strict adherence, the

guilty plea must be vacated. Among the requirements

of Rule 11 are that a defendant enter the plea volun-

tarily and that he understand the nature of the charge

=

and the consequences of his plea. Also, there must

be a factual basis for the guilty plea. The explanations

and findings which are required by Rule 11 must

be made on the record.

McCarthy v. United States, 394 U.S. at 470,

89 S.Ct. at 1173;

Santobello v. New York, 404 U.S. 257, 261,

92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).

At the time that the district court accepted petitioner’s

guilty plea it failed to comply with Rule 11 in that:

(1) no determination was made that petitioner acted

with the requisite intent to defraud; (2) no determina-

tion was made that the false oath went to material

facts; (3) petitioner was not placed under oath when

examined by the district court when it attempted to

establish a factual basis for the plea and (4) petitioner

was not informed of the elements of 18 U.S.C. §152,

the offense to which he pleaded guilty.

Instead, the district court merely read the substance

of Count XI, the count to which petitioner pleaded

guilty, and then asked: “Generally, are those facts

true?” Petitioner replied: “Yes.” Clearly, this cursory

and shallow inquiry does not satisfy the requirements

of Rule 11.

In its opinion affirming petitioner’s conviction, the

Ninth Circuit overlooked many of the district court’s

errors in accepting the guilty plea. For example, the

Court of Appeals makes reference to the fact that

petitioner was informed of the maximum possible sen-

tence he (petitioner) could receive, but fails to note

that it was the Assistant United States Attorney who

informed petitioner of that fact, and not the district

court as required by Rule 11. At least one other

oantiiien

Court of Appeals had held that such a departure

from the requirements of Rule 11 mandates that the

guilty plea be set aside.

In United States v. Crook, 526 F.2d 708 (Sth

Cir. 1976), the Court of Appeals for the Fifth Circuit

vacated a defendant’s guilty plea based upon the district

court’s failure to personally address the defendant as

to: the range of possible penalties; whether the defendant

understood the nature and consequences of this plea;

and whether the defendant made his plea freely and

voluntarily. Rather than the court, the prosecutor made

those inquiries of the defendant. The district court

in Crook directly questioned the defendant only to

establish a factual basis for the plea. At the time

that the defendant in Crook entered his guilty plea

the 1975 Amendments to Rule 11 were not in effect.

All other requirements of Rule 11 were apparently

met when the guilty plea was accepted. Thus, the

Fifth Circuit has held that a guilty plea must be

set aside if a district court does not personally address

the defendant. This is in direct conflict with the Ninth

Circuit’s opinion affirming petitioner’s conviction.

At the time of accepting petitioner’s guilty plea,

the district court failed to make any inquiry into peti-

tioner’s conduct which supposedly constituted the offense

charged. Nor did the district court inquire of the

government as what its proof would have been had

the matter proceeded to trial. Instead, the district court

was Satisfied with petitioner’s response that the facts

as contained in the count to which he (petitioner)

was pleading guilty were “generally” true.

Rule 11 is designed to insure that when a defendant

enters a guilty plea it is done voluntarily and with

a full understanding of the consequences. In order

—

to insure that these requirements are met, Rule 11

mandates that a district court establish, on the record,

that a defendant is entering his plea voluntarily, with

a full understanding of the consequences, and that

there is a basis in fact for the plea. This type of

inquiry necessarily requires a district court to conduct

a thorough probe of the facts surrounding each plea.

In the instant action, the district court failed to

fulfill its obligation under Rule 11.

Finally, a recent decision of the Court of Appeals

for the First Circuit indicates that there, too, the district

court must strictly adhere to the requirements of Rule

11 in accepting guilty pleas. In United States v. Yaz-

beck, 524 F.2d 641 (1st Cir. 1975), the First Circuit

vacated a guilty plea based upon the district court’s

failure to advise the defendant of the existence of

a special parole provision. The special parole provision

was found to be included within the requirement of

Rule 11 that the defendant understand the consequences

of his plea.

Based upon this Court’s holding in McCarthy that

the requirements of Rule 11 be strictly followed and

the conflicting decisions among the various Courts of

Appeals, petitioner respectfully urges that certiorari be

granted as to this Question.

Conclusion.

For these reasons, it is respectfully submitted that

this Petition for a Writ of Certiorari should be granted.

THOMAS R. SHERIDAN,

DouG.Las G. SIMON,

RANDALL E. GREER,

SIMON & SHERIDAN,

Attorneys for Petitioner

Boyd James O’ Donnell.

APPENDIX

APPENDIX A.

Opinion of the Court of Appeals for the Ninth Circuit.

United States Court of Appeals, for the Ninth Circuit.

United States of America, Appellee, vs. Boyd James

O’Donnell, Appellant. No. 76-1003.

OPINION

[July 20, 1976]

Appeal from the United States District Court for

the District of Arizona.

Before: WALLACE and SNEED, Circuit Judges, and

FERGUSON, * District Judge.

SNEED, Circuit Judge:

Appellant O’Donnell appeals the district court’s judg-

ment which convicted him upon his plea of guilty

of violating Title 18, U.S.C. § 152' (knowingly and

fraudulently making a false oath in relation to material

matters in a bankruptcy proceeding) as charged in

Count XI of the indictment. Our jurisdiction rests

on 28 U.S.C. § 1291.

In this appeal O’Donnell contends: (1) his plea

of guilty did not conform with Rule 11 of the Federal

Rules of Criminal Procedure; (2) he was denied his

constitutional rights to due process of law and to

a speedy trial; (3) these constitutional rights are not

*Honorable Warren J. Ferguson, United States District Judge

for the Central District of California, sittirg by designation.

118 U.S.C. § 152 provides in pertinent part:

Whoever knowingly and fraudulently makes a false oath

or account in or in relation te any bankruptcy proceeding;

or

Shall be fined not more than $5,000 or imprisoned not

more than five years, or both.

endiien

waived by a plea of guilty; (4) Count XI failed

to state an offense.

Appellant therefore urges that we should set aside

the guilty plea, vacate the judgment, and remand the

case to the district court with directions that appellant

be permitted to plead anew. We reject appellant’s con-

tentions, and affirm the judgment of the district court.

1.

Facts.

On May 30, 1974, Boyd James O’Donnell was

charged in a two-count indictment for his acts of March

13, 1970, which allegedly violated 18 U.S.C. § 152

and for his acts of April 7, 1970, which allegedly

violated 18 U.S.C. § 1621 (perjury). Trial was set

for November 26, 1974, but the date was vacated

on November 5, 1974.

On January 9, 1975, the grand jury filed a thirty-

one count superseding indictment, charging the appel-

lant with thirty-one violations of 18 U.S.C. § 152

arising from acts occurring on either March 13, 1970,

or April 7, 1970. Count XI of this indictment charged

the appellant with knowingly and fraudulently making

a false oath as to material matters relating to his

bankruptcy consisting of his knowing and fraudulent

statement in his petition for bankruptcy that he was

employed by United International Corporation of Phoe-

nix, Arizona, whereas in truth and in fact, appellant

then knew he was not employed by United. Trial

was set for November 18, 1975.

On October 30, 1975, appellant filed a motion to

dismiss the indictment on the grounds that the pre-

indictment and post-indictment delays had deprived the

_-- ———— OO

—

appellant of his rights to due process of law and

to a speedy trial, as guaranteed by the Fifth and

Sixth Amendments. The motion was denied on No-

vember 7, 1975.

Appellant on November 18, 1975, entered a plea

of guilty to Count XI of the indictment. All other

counts of the indictment were dismissed on December

8, 1975.

Il.

Compliance With Rule 11.

At the time that O’Donnell entered his guilty plea

in the instant case, Rule 11 of the Fedcral Rules

of Criminal Procedure provided that before a district

court could accept a plea of guilty, it must determine

that the plea is made voluntarily, with an understanding

of the nature of the charge and the consequences

of the plea. The court must also be satisfied that

there is a factual basis for the plea. Rule 11(f).

While Rule 11 does not require that the district

court observe any particular ritual, it does require

that the judge employ procedures sufficient to determine

that the defendant understands the charges against him

and the consequences of his plea, and that the defend-

ant’s plea is truly voluntary. Guthrie v. United States,

517 F.2d 416, 418 (9th Cir. 1975); United States

v. Youpee, 419 F.2d 1340, 1344 (9th Cir. 1969);

Munich v. United States, 337 F.2d 356, 359 (9th

Cir. 1964).

Rule 11 is also designed to produce a compiete

record when the plea is entered of the factors relevant

to determining whether the Rule has been complied

with in order to suppress frivolous attacks on the

constitutional validity of the plea. Santobello v. New

York, 404 U.S. 257, 261 (1971); McCarthy v. United

States, 394 U.S. 459, 465 (1969); Guthrie v. United

States, supra at 418 (9th Cir. 1975). If the district

court fails to comply with Rule 11, the plea entered

thereunder must be set aside and the case must be

remanded in order to permit the defendant to plead

anew. McCarthy v. United States, supra at 463-64

(1969).

After carefully examining the record, we are satisfied

that the requirements of Rule 11 have been met. The

record established that appellant was 58 years old,

was not under the influence of any drug, medication

or alcohol that might impair his reasoning, had a

college education, and had been involved in court pro-

ceedings prior to the charges involved in the present

case. O’Donnell was apprised of the fact that by plead-

ing guilty he waived his constitutional right to a jury

trial and the penumbral rights thereof, and he was

informed that the maximum possible sentence for Count

XI was five years imprisonment and a $5,000 fine.

The court read the substance of Count XI to O’Donnell

and then asked: “Generally, are those facts true?”

O’Donnell answered, “Yes, they are.” He also informed

the court that before deciding to plead guilty, he had

discussed the charges and facts set forth in Count

XI with his attorney. O'Donnell also stated that he

was pleading guilty to Count XI because he was guilty

of the charges and for no other reason.

From tne record it appears that O'Donnell understood

the nature of the offense charged in the indictment

and that his plea clearly was voluntary. The record

also establishes a factual basis for accepting the guilty

plea. We therefore reject appellant’s contention with

respect to Rule 11. See Guthrie v. United States, supra

at 418-19; United States v. Youpee, supra at 1343-

44. Our decision in Salas v. United States, 529 F.2d

1276 (9th Cir. 1975), is not to the contrary.

Il.

Waiver of Pre-Trial Constitutional

Violations by Guilty Plea.

The Sixth Amendment’s guarantee of the right to

a speedy trial is activated only when the putative

defendant in some manner becomes an “accused.”

United States v. Marion, 404 U.S. 307, 313 (1971).

Dismissal of the conviction and indictment, moreover,

is the only proper remedy for deprivation of one’s

right to a speedy trial. Strunk v. United States, 412

U.S. 434, 440 (1973). The Fifth Amendment, on

the other hand, requires only that an indictment be

dismissed if it is shown that the preaccusation delay

substantially prejudiced the defendant’s right to receive

a fair trial. 404 U.S. at 326. Appellant became an

accused when he was indicted by the grand jury.

The Supreme Court of the United States has never

explicitly considered whether a guilty plea waives

these specific rights, but recent court opinions do pro-

vide guidelines. The guilty plea trilogy of Brady v.

United States, 397 U.S. 742 (1970); McMann v. Rich-

ardson, 397 U.S. 759 (1970); and Parker v. North

Carolina, 397 U.S. 790 (1970), stand for the general

rule that a guilty plea that is intelligently and volun-

tarily made, prectudes later constitutional challenges

to the pretrial proceedings. Lefkowitz v. Newsome,

95 S.Ct. 886, 889 (1975).

The principle of the Brady trilogy was reaffirmed

in Tollett v. Henderson, 411 U.S. 258 (1973). Speak-

ing for the Court, Mr. Justice Rehnquist stated:

—

We thus reaffirm the principle recognized in

the Brady trilogy: a guilty plea represents a break

in the chain of events which has preceded it

in the criminal process. When a criminal defend-

ant has solemnly admitted in open court that

he is in fact guiiiy of the offense with which

he is charged, he may not thereafter raise inde-

pendent claims relating to the deprivation of con-

stitutional rights that occurred prior to the entry

of the guilty plea. He may only attack the volun-

tary and intelligent character of the guilty plea

by showing that the advice he received from coun-

sel was not within the standards set forth in Mc-

Mann. Id. at 267.

Menna v. New York, 96 S.Ct. 241 (1975) is the

latest decision of the Court in this area. Menna held

that a defendant’s rights under the Double Jeopardy

Clause of the Fifth Amendment are not waived by

a plea of guilty to a charge with respect to which

the Constitution precludes the State from prosecuting.

Id. at 242, n.2. The court explained that neither Tollett

nor the Brady trilogy hold that counseled pleas of

guilty inevitably waive all antecedent constitutional vio-

lations. Instead, these cases stand for the proposition

that pleas of guilty, when made voluntarily and intelli-

gently, are admissions of factual guilt which are so

reliable, that the issue of factual guilt is removed

from the case. “A guilty plea, therefore, simply renders

irrelevant those constitutional violations not logically

inconsistent with the valid establishment of factual

guilt and which do not stand in the way of conviction

if factual guilt is validly established.” /d.

The appellant in the instant case argues that the

rights guaranteed by the Due Process Clause of the

ne AF ONE oe

ani

Fifth Amendment and by the right to a speedy trial

of the Sixth Amendment are analogous to the rights

protected by the Double Jeopardy Clause of the Fifth

Amendment. He therefore contends that his guilty plea

did not waive these violations. We disagree.

In North Carolina v. Pearce, 395 U.S. 711 (1969),

the court observed that the Double Jeopardy Clause

provides three related protections:

It protects against a second prosecution for the

same offense after acquittal. It protects against

a second prosecution for the same offense after

conviction. And it protects against multiple pun-

ishments for the same offense. /d. at 717.

The underlying premise of these protections is that

“l'w]hen a defendant has been once convicted and

punished for a particular crime, principles of fairness

and finality require that he not be subjected to the

possibility of further punishment by being again tried

or sentenced for the same offense.” United States v.

Wilson, 95 S.Ct. 1013, 1021-22 (1975). [Citations

omitted]. Thus the very initiation of the proceedings

in Menna operated to deny the defendant his right

against double jeopardy. The Constitution protects him

from a second conviction whether its origin is a trial

or a plea of guilty.

The protections afforded by the Fifth and Sixth

Amendments are different. Their purpose is to insure

that factual guilt is validly established. That is, their

purpose is to guarantee that the accused’s right to

a fair trial is not substantially prejudiced by either

pro- or post-accusation delays. The existence of such

violations is consistent with guilt as a matter of fact.

—

If guilt can be validly established such violations are

not logically inconsistent therewith. While such viola-

tions preclude the establishment of guilt by trial, that

is the extent of their reach. The establishment of guilt

by a proper plea is not condemned by these protections.

The Constitution protects the accused from conviction

by trial but not a conviction by way of a plea of

guilty. Tollett and the Brady trilogy control here. Menna

is inapplicable.* For this reason it is not necessary

for us to consider the merits of O’Donnell’s constitution-

al claims.

IV.

Failure to State an Offense.

We have construed 18 U.S.C. § 152 to require

that false oath be given in relation to some material

matter. Metheany v. United States, 365 F.2d 90 (9th

Cir. 1966), appeal after remand, 390 F.2d 559, cert.

denied, 393 U.S. 824 (1968).

Count XI of the indictment charged that O’Donnell

knowingly and fraudulently made a false oath as to

material matters relating to his bankruptcy petition

in that he knowingly and fraudulently stated that he

was employed by United International Corporation of

Phoenix, while in truth and fact he was not employed

by United.

O’Donnell’s principal argument is that the false state-

ments alleged in Count XI were immaterial, since they

overstated his current earning capacity. Appellant there-

fore contends that to constitute material false statements,

Moreover, even if a plea of guilty did not in and of

itself waive a speedy trial defense, the defendant here specifically

was asked to and did waive “any defenses” that he might

have to the charge in question. No such specific waiver was

present in Menna.

— Se ee ee ee

cin

the statements would have to minimize his earning

capacity. We disagree.

Materiality does not require a showing that creditors

are harmed by the false statements. See In Re Robin-

son, 506 F.2d 1184, 1188-89 (2d Cir. 1974). Matters

are material if pertinent to the extent and nature of

bankrupt’s assets, including the history of a bank-

rupt’s financial transactions. See Metheany, supra. Ma-

teriality is also established when it is shown that the

inquiry bears a relationship to the bankrupt’s business

transactions or his estate, Willoughby v. Jamison, 103

F.2d 821, 824 (8th Cir.), cert. denied, 308 USS.

588 (1939), or concerns the “discovery of assets,

including the bankrupt’s financial transactions.” Jn Re

Mascolo, 505 F.2d 274, 277 (1st Cir. 1974). State-

ments designed to secure adjudication by a particular

bankruptcy court are also material. Under these stand-

ards O’Donnell’s false statements cannot be considered

immaterial. They concerned his ability to acquire

assets and may have tended to assure the bankruptcy

forum he desired. They were material to his creditors,

to him, and to the bankruptcy court. This surely is

enough.

The judgment of the district court is

AFFIRMED.