Opposition — Tallant v. United States

| Supreme Court, U.S.

FILED

SEP 28 I9/@

No. 76-1768

ICHAEL RODAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

Frep C. TALLANT, SR., 4D WiLLiAM M. WomMaAcK, JR.,

PE. TIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Wape H. McCreg, Jr.,

Solicitor General,

BEN) AMIN R. CIVILETTI,

Assistant Attorney General,

SiDNEY M. GLAZER,

ELLIOTT SCHULDER,

Altorneys,

Depariment of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-1768

FreD C. TALLANT, SR., AND WILLIAM M. WoMACK, JR..

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-17a)

is reported at 547 F. 2d 1291. The opinions of the district

court are reported at 407 F. Supp. 878 and 407 F. Supp.

896.

JURISDICTION

The judgment of the court of appeals was entered on

March 7, 1977. The petition for a writ of certiorari was

filed on June 3, 1977, and therefore ', substantially out

of time under Rule 22(2) of the Rules of this Court. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

QUESTION PRESENTED

Whether, on appeal from a conviction following a

voluntary, intelligent and unconditional plea of nolo con-

tendere, the court of appeals properly refused to consider

alleged errors in the procedures employed in returning the

indictment.

STATEMENT

1. An indictment filed on April 17, 1974, in the United

States District Court for the Northern District of Georgia

charged petitioners, officers and directors of the Preferred

Land Corporation, with making fraudulent representa-

tions in connection with the intrastate offering and sale of

the corporation’s securities, in violation of 15 U.S.C. 77q(a)

(counts 1-5), mail fraud, in violation of 18 U.S.C. 1341

{counts 6-10), and conspiracy to commit those offenses,

in vioiation of 18 U.S.C. 371 (count 11). In addition, peti-

tioner Womack was charged with falsifying business rec-

ords submitted to the Securities and Exchange Commis-

sion, in violation of 18 U.S.C. 1505 (count 12) (Pet. App.

2a).

Following the district court’s denial of their motion to

dismiss the indictment (407 F. Supp. 878),' petitioners

agreed to plead nolo contendere on condition that they be

allowed to withdraw their pleas if they were dissatisfied

with the sentence imposed. The court refused to accept

these conditional pleas (407 F. Supp. 896, 898).2 The next

day, immediately before trial was scheduled to begin, peti-

toners tendered unconditional pleas of nolo contendere to

‘As noted by the court of appeals, petitioners also made a number

of unsuccessful collateral attacks upon the validity of their pros-

ecution (Pet. App. 2a-3a. n. 2).

“The background of petitioners’ nolo contendere pleas is set forth in

the district court's opinion deny ing their motion for bail pending appeal

(407 F.Supp. 896).

3

all counts of the indictment.’ After considerable and de-

tailed discussions with counsel for petitioners and the gov-

ernment, the court accepted the pleas (/hid.).

At the sentencing proceeding, petitioners expressed

their full awareness of the effects of a plea of nolo con-

tendere (Tr. 32, 54). Petitioner Tallant was sentenced to

three years’ imprisonment, all but three months of

which was suspended in favor of five years’ probation,

and was fined a total of $40,000. Petitioner Womack was

sentenced to three years’ imprisonment, all but two

months of which was suspended in favor or five years”

probation, and was fined a total of $15,000 (Pet. 3).

2. On appeal from their convictions, petitioners con-

ceded that their nolo contendere pleas were knowledgeable

and intelligent (Br. 21), but they nonetheless asserted as

error the claims previously denied by the district court in

their motion to dismiss the indictment. The court of ap-

peals affirmed (Pet. App. la-17a). It found that the bulk

of petitioners’ contentions involved “nonjurisdictional” de-

fects that could not be raised on appeal from a conviction

based upon a plea of nolo contendere (id. at 3a-Sa) and

that the remainder of petitioners’ claims were insubstantial

(id. at 6a-17a).4

‘Petitioner Tallant’s plea covered counts | through I1. while

petitioner Womack’s plea covered counts | through 12 (Pet. App.

3a, n. 3).

‘The court refused to consider the following questions (Pet. App.

3a-Sa and n. 4):

|. Whether the grand jury returning the indictment was

randomly selected trom a fair cross section of the community.

2. Whether the indictment should have been dismissed

because one of the grand jurors was disqualified as a convicted

felon.

3. Whether the trial court properly refused to permit

appellants to inspect the grand jury minutes to determine

4

ARGUMENT

Petitioners’ sole contention is that the court of appeals

erred in refusing to pass upon the merits of each of their

whether that body was prejudiced by pre-indictment publicity

causing a denial of due process. aaa

4. Whether the District Court properly refused to grant

appellants permission to inspect grand jury minutes to

determine whether the Uniied States Attorney substituted his

judgment for that of the grand jury causing a denial of due

process.

5. Whether the District Court should have dismissed the

indictment on grounds of prejudicial pre-indictment publicity.

6. Whether the indictment was invalid because inherently

prejudicial by reason of misjoinder of parties and offenses.

7. Whether the United States Attorney abused his discretion

by procuring the indictment on the basis of the grand jury's

misunderstanding of the law.

8. Whether the indictment was unauthorized by the United

States Attorney General and obtained in violation of Section

20 of the Securities Act of 1933.

However, the court did consider petitioners’ other claims of error,

which the court held had survived their pleas of nolo contendere. These

issues included:

1. Whether the indictment charged offenses within the

criminal jurisdiction of the federal courts.

2. Whether Section 17 of the Securities Act of 1933(15 U.S.C.

77(q)a)) is constitutional.

3. Whether the prosecution was untimely under the statute of

limitations.

The court of appeals determined that each of these allegations was

without merit (id. at 4a, n. 4, 6a-17a), a conclusion petitioners have not

contested in this Court. In addition, although the court below concluded

that petitioners’ contention that the district court incorrectly imposed

fines or penalties was not reviewable (id. at 4a. n. 4), the court did

consider. and properly rejected. this claim (id. at Sa. n. 6).

oo —_

5

arguments. The court correctly concluded, however, that

several of petitioners’ points on appeal had been waived by

their voluntary and intelligent pleas of nolo contendere,

which “remove[d] the issue of factual guilt from the case”

(Menna vy. New York, 423 U.S. 61, 62, n. 2) and precluded

appellate consideration oj claimed violations of rights that

preceded the plea and involved neither the jurisdiction of the

district court nor the power of the government to prosecute.

See United States v. Michigan Carton Co., 552 F. 2d 198,

201 (C.A. 7). The claims that the court of appeals refused to

consider challenged only the procedures employed in

returning the indictment and did not call into question the

validity of the charges, the power of the government to

institute them, or the authority of the district court to render

judgment and impose punishment. Compare Menna v. New

York, supra, 423 U.S. at 62-63 and n. 2. Accordingly, as a

result of the entry of valid nolo contendere pleas, petitioners

would not have been entitled to a reversal of their

convictions even if their numerous allegations of legal error

in the obtaining of the indictment were correct.

Once petitioners chose to bypass the orderly procedure

for litigating their claims in order to obtain the benefits of an

unconditional plea of nolo contendere, the government

acquired a legitimate expectation of finality in the resulting

convictions. See Lefkowitz v. Newsome, 420 U.S. 283, 289.

Petitioners’ nolo contendere pleas, just like pleas of guilty,

therefore represented “a break in the chain of events which

* * * preceded [them] in the criminal process.” Tollett v.

Henderson, 411 U.S. 258, 267. Moreover, like pleas of

guilty, the pleas of nolo contendere were a complete

admission of guilt. As this Court stated in Lot v. United

States, 367 U.S. 421. 426:

‘In considering the timeliness. under the Federal Rules of Criminal

Procedure. of the defendants’ motions in arrest of judgment and, hence.

the timeliness of their appeals, the Court concluded in Lom that “it was

6

Although it is said that a plea of nolo contendere

means literally “I do not contest it,” * * * and “is a

mere statement of unwillingness to contest and no

more,” * * * it does admit “every essential element

of the offense [that is] well pleaded in the charge.”

* ** Hence, it is tantamount to “an admission of

guilt for the purposes of the case,” * * * and “noth-

ing is left but to render judgment, for the obvious

reason that in the face of the plea no issue of fact

exists, and none can be made while the plea remains

of record,” * * *.

Hence, “{{Jor purposes of the criminal case in which the

plea is entered, a conviction on a nolo plea is equiva-

lent to a conviction on a plea of guilty.” 8 Moore’s Fed-

eral Practice, para. 11.07, p. 11-112 (2d ed. 1976). See

United States v. Kondos, 509 F. 2d 1147, 1148 (C.A. 7);

McGrath v. United States, 402 F. 2d 466, 467 (C.A. 7).

See generally United States v. Mizell, 488 F. 2d 97,

99-100 (C.A. 5). In sum, the court of appeals properly

determined that petitioners’ challenge to the proce-

dures underlying their indictment did not survive their

pleas of nolo contendere.

While the circuits are in general agreement concerning

the extremely narrow scope of review on appeal after pleas

the judgment of conviction and sentence, not the tender and acceptance

of the pleas of nu/o contendere, that constituted the ‘determination of

guilt’ within the meaning of Rule 34 [Fed. R. Crim. P.].” 367 U.S. at

426. Petitioners have misread Lott in asserting that the court of ap-

peals “proceeded upon a wrong view of the law in treating the appeal

as [one] ‘from a conviction founded on a nolo contenaere plea™ (Pet.

4-5). Here, as in Lott, petitioners were “convicted,” and their guilt

conclusively determined, when the district court entered judgment

and imposed sentence following their pleas of nolo contendere. “Con-

viction” of course occurs when judgment is entered, not when ihe

plea—whether guilty or nolo contendere—is accepted. See. Fed. R.

Crim. P. 32(b)(1).

;

of guilty or nolo contendere, certain courts of appeals

have chosen in’ some cases to review particular legal

questions despite the entry of such pleas. See Pet. 6-7:

United States v. Mizell, supra. Since each of these cases

was decided prior to this Court’s decisions in Tollett

and Menna, which clarif‘ed the relatively narrow scope

of review after a plea of guilty or nolo contendere, it is

unlikely that any conflict among the circuits continues

to exist. However, to the extent that this variation in

past practice suggests a continuing conflict, this case is

an inappropriate vehicle in which to resolve it.

None of the issues that the court of appeals refused to

consider in this case—which esentially related to the pro-

cedures by which the indictment was obtained—would

have been held reviewable in the other circuits. Thus,

petitioners did not contend that their pleas were involun-

tary (Doran v. Wilson, 369 F. 2d 505 (C.A. 9); Briley v.

Wilson, 376 F. 2d 802 (C.A. 9)) or that the government

was foreclosed from bringing charges against them

(Menna v. New York, supra). Nor does this case present

an “exceptional situation” as was present in Brotherhood

of Carpenters v. United States, 330 U.S. 395, 412, where,

subsequent to the defendants’ pleas of nolo contendere,

the Court resolved a statutory uncertainty that was central

to the issue of criminal liability. Finally, as noted earlier

(see note 4, supra), the court of appeals specifically con-

sidered petitioners’ claim that the prosecution was barred

by the statute of limitations, and thus the decision below

is entirely consistent with Jaben v. United States, 333

F. 2d 535 (C.A. 8), affirmed, 381 U.S. 214.°

*The remaining cases cited by petitioners are equally unavailing.

In view of the district court's rejection of petitioners’ conditional

pleas of nolo contendere and their subsequent tender of uncon-

ditional nolo pleas, it is clear that no agreement was made to

‘

8

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapeE H. McCree, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

SIDNEY M. GLAZER,

ELLIOTT SCHULDER,

Attorneys.

SEPTEMBER 1977.

preserve certain issues for appeal. Compare United States v. Cook,

463 F. 2d 123, 125 (€.A. 5); United States v. Rosenberg, 458 F. 2d

1183, 1184 (C.A. 5), certiorari denied, 409 U.S. 868; United States

v. Mann, 451 F. 2d 346, 347 (C.A. 2); United States v. Grassia, 354

F. 2d 27. 29 (C.A. 2). vacated and remanded on other grounds, 390

U.S. 202; United States v. Doyle, 348 F. 2d 715 (C.A. 2), certiorari

denied, 382 U.S. 843. Moreover, there is not applicable here any

statute expressly authorizing review of certain issues on appeal

following convictions based on pleas of guilty or nolo contendere.

See Lefkowitz v. Newsome, supra; United States ex rel. Rogers v.

Warden of Attica State Prison, 381 F. 2d 209(C.A. 2). Nor is this a case

in which the defendant was adjudged guilty on stipulated facts: this

Court has indicated that in such circumstances (which do not include a

formal admission of guilt) the defendant may present on appeal any

issue that he would have been entitled to raise alter trial. Lefkowitz v.

Newsome, supra, 420 U.S. at 290-291. n. 7. See also United States v.

Wysocki, 457 F. 2d 1155, 1158 (C.A. 5). certiorari denied, 409 U.S. 859.

Finally, unlike United States v. De Costa, 435 F. 2d 630. 632(C.A. 1). in

which the court of appeals pretermitted decision of the appealability

issue by finding that the defendant's claims were insubstantial.

petitioners have not claimed that their prosecution was barred by the

Speedy Trial Clause of the Sixth Amendment.

DOJ-1977-09