Petition — LUSTIG v. UNITED STATES (Nos. 77-417, 77-405)

Supreme Court brief1977

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IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1977

GEORGE H. LUSTIG,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILLIP P, WEIDNER

DRATHMAN, WEIDNER & BRYSON

333 W. Fourth Avenue

Suite 35

Anchorage, Alaska 99501

(907) 276-7000

Attorney for Petitioner

September | 2, 1977

ee, ST TE TT TED,

Ken Wray's Print Shop, Ino., 323 Rast Fireweed, Anchorage, Alaska 09603, 007-276-4636

TABLE OF CONTENTS

TABLE OF CASES AND AUTHORITIES .. 10... ., » |

I, OPINION BELOW cscs te ererereeens

Il, es ogy re ae ee

Il, QUESTIONS PRESENTED FOR REVIEW... . .

IV, CONSTITUTIONAL AND STATUTORY PROVISIONS

ae 5 |) Ree ee p

Vv, STATEMENT OF THECASE .....6.5.5., . 2

Vi. REASONS FOR GRANTING THE WRIT OF

CERIGORMARE cece eesreeereseveer 4

A. THE IMPORTANT FEDERAL QUESTION OF

WHETHER INCREASING THE SEVERITY OF

A SENTENCE AT A PROBATION

REVOCATION VIOLATED DOUBLI

JEOPARDY HAS BEEN DECIDED IN

CONFLICT WITH APPLICABLE DECISIONS

OF THE OTHER CIRCUITS AND THIS

| aaa a a re ee ee ee 4

(1) THE IMPOSITION OF CONSECUTIVE TIMI

INCREASES THE SEVERITY OF THI

ORIGINAL SENTENCE |W... i 4

) THE RESULT CONFLICTS WITH THI

PRINCIPLES OF THIS COURT'S DECISIONS

AND DECISIONS OF THE OTHER CIRCUITS

WITH RESPECT TO THE PERMISSIBLE

MECHANISM, UNDER THE DOUBLE

JEOPARDY CLAUSE, OF IMPOSING

CONSECUTIVE TIME FOR A

ye oe a re a 2 7

B. «THE DECISION DECIDES THE IMPORTANT

FEDERAL QUESTIONS OF THE PROPER

(

INTERPRETATION OF 18 US.C, 3653, 18

U.S.C, 3651, 18 U.S.C, 3568, AND FEDERAL

RULE OF CRIMINAL PROCEDURE 32, ON

MATTERS THAT HAVE NOT BEEN, BUT

SHOULD BE, SETTLED BY THISCOURT . . 11

C, THE OPINION DECIDES IMPORTANT

FEDERAL QUESTIONS AS TO THE

STANDARD OF PROOF AND ADMISSIBLE

EVIDENCE FOR PROBATION REVOCATION

UNDER 18 U.S.C, 3653, WHICH HAVE NOT

BELEN, BUT SHOULD BE, SETTLED BY THIS

COURT scr cer cerernneeveseenn 14

D. THE IMPORTANT FEDERAL QUESTION OF

WHETHER PLAIN ERROR UNDER

CRIMINAL RULE §, 7 11, BOYKIN V.

ALABAMA, 395 U.S, 238 (1969), and

WCARTHY Vo UNITED STATES, 394 US.

459 (1969), WITH REGARD TO THE

VALIDITY OF AN INITIAL PLEA OF

GUILTY, MAY JUSTIFY REVERSAL ON

APPEAL FROM A PROBATION

REVOCATION, HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THISCOURT . . 16

Vil, SUMMARY ANDCONCLUSIONS ........5. 17

Vill. APPENDIX . owe cer rere rere reeves 21

iii

TABLE OF CASES

AND AUTHORITIES

Baber v, United States, 368 F.2d

463 (Cir, 1966) .....44.

Bernal-Zazueta v, United States,

225 F.2d 68 (9th Cir, 1955). .

Blackledge v. Allison, 97 §.Ct.

OSE CIDTT) seer ren seee

Borum v, United States, 409 & 2d

433 (9th Cir, 1967) 2. a

Boykin v, Alabama, 395 U.S, 238

(IPG) cece vneveeeece

Brown v, Ohio, 97 §.Ct, 2221 (1977)

Burgess v. Hudspeth, 120 F.2d 550

i... s 3 |)

Crowe v, United States, 220 F.2d $26

(GERCH. IPOS) ccc re enves

Dominiques v. Hunter, 170 F.2d 546

(10th Cir. 1948) 2... cere

Frad v. Kelly, 302 U.S, 312, 314

58 S.Ct, 188, 82 L.Ed, 282... .,

Gagnon v, Scarpelli, 441 U.S, 778

CUPPED ceceeesecesees

Gillespie v. Hunter, 159 F.2d 410

(10th Cir. 1947) 2... eee

Green v. United States, 355 U.S,

184, 187-188 (1957) .....4,

In Re Bradley, 318 U.S, 50, 63

§. Ct. 4, 70 L.Ed, 500(1943).. ,

Jeffers V. United States, 97 §.Ct.

SOOT CIDTTD cece seveees

peeeens 13

Jenkins v. Madigan, 211 F.2d

ote, bk | ee ee 10

Letellier v, Taylor, 348 F.2d

Ope (iG Cis, 1FEG) acc cere veeveves 10

Mankowski v, United States,

148 F.2d 143, 144 (S5thCin) Ww 8

McCarthy v, United States, 394,

Wee GOP CEPORD sec cceoeeereereeer 2,3, 16

MeGinnis v, Stevens, $43 P.2d 1221,

be Ti oS |) ) Pr ee a i 14

Moody v, Daggett, 97 S.Ct, 2741976) 2 oo, 13

Morrissey v, Brewer, 408 U.S, 471,

GEUGUPTED cece eerresienerevees 14

North Carolina v, Pearce, 395 U.S,

TUUMEEEED DEORE OR CO beeen ewes 10

Roberts v, United States, 320

PEUUED cece ecesevineese 6,11

Rodgers v, United States, 413 F.2d

Sot CIGD Cl, 1969) www cern rvs vser 17

Tatum v, United States, 114 U.S,

App. D.C, 49, 310 F.2d 854 (D.C, Cir, 1962) 66

Taylor v, United States Marshal for

the Lastern District of Oklahoma,

352 F.2d 232 (10th Cir, 1965) 2. oe ee 10

United States v Bartholdi, 543 F.2d

- |. 6 ere eee eee 10, 18

United States v, Benz, 282 U.S, 304,51

S.Ct, 113, 7S L.Ed. 20 38401931) 2... 10

United States v, Bowens, §14 F.2d

oo eee ae 6

United States v, Carrion, 457 F.2d

MT Le A) | ee 15, 16

United States v. Francischine, 512 F.2d

ed) Le ee a

United States v. Garza, 484 F.2d 88, 89

le So) a a a eee ae

United States v. Kenyon, 519 F.2d

DME od seeeeseee ees

United States v. Lancer, 508 F.2d 719

CE <e-. 65 toe 66 666 0 0 8:8

United States v. Liddy, 510 F.2d

RE ea a a a a

United States v. Lustig, Slip Op.

No. 1260, No. 76-2661, (9th Cir. 6/15/77) . . .

United States v. Miller, 514 F.2d 41

8 a ea

United States v. Moore, 101 F.2d 56

ee a a a ae ee ee

United States v. Nagelberg, 413 F.2d

CO ee ee ae ee

United States v. Sherwood, 435 F.2d

a ee eee

United States v. Tacoma, 199 F.2d

CE ee ae

United States v. You, 159 F.2d

I ee

Welsh v. United States, 348 F.2d

I i. 5 455 = 6 0.0 6 eo 6 ee «

Williams v. United States, 310 F.2d

Cn? ‘¢ 6 ss 6s 6 bee eee 8

Wolff v. McDonnell, 418 U.S. 539

IR ES Ee ee a

Zerbst v. Kidwell, 304 U.S. 359

PTE i 6 Eke SS 6 2 eee ee 0 6s

7,9, 11, 18

RULES

Cran 4 « 5:6 6 See we ae 2, 3, 16, 17

Ca Fs a ea es O88 bree Oe 2, 3, 16

Ce + 24 s. 646 4 Oeele ee eee

Cea: is os i eee ee ee 2,11

UNITED STATES CODE

|} Serererrrrrr? ee! 1, 2, 12, 13, 18

See ¢ 0 4.60.0 4%'8 da 6's See 1, 2,6, 12, 13, 18

DRE 46 0 6 6 é ss & & oe ee 1, 2, 6, 8, 11, 12, 13,

14,18

| Peewee ae 2, 13

er er er rr ee eee fer 3

DG <6 « o'k0 + 6 4 8 + eee ee 3

eos é eee eb denn deere eee 3

i, ree ee

Be Gees 0 08 66 eee ee ese l

U. S. CONSTITUTIONAL PROVISIONS

Fifth Amendment to the U.S. Constitution ... .5,6

MISC

Wright on Criminal Procedure, 530&432..... 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No.

GEORGE H. LUSTIG,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TO: THE HONORABLE CHIEF JUSTICE WARREN E.

BURGER, AND ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES:

The Petitioner, George H. Lustig, respectfully prays that a

Writ of Ceriorari issue to review the judgment and opinion of

the United States Court of Appeals for the Ninth Circuit,

*entered in this proceeding on June 15, 1977, Petition for

Rehearing En Banc denied August 12, 1977.

I. OPINION BELOW.

The opinion of the Ninth Circuit, in United States v. Lustig,

Slip Op. 1277, No. 70-3146, F.2d (June 15, 1977),

Rehearing En Banc denied August 12, 1977, is not yet reported:

a copy is attached as Appendix A. No written opinion by the

District Court was reported; any written memorandum

decisions are reproduced as Appendix B.

Il. JURISDICTION.

The opinion in the Court of Appeals was entered June 15,

1977. A timely Petition for Rehearing and Suggestion of the

Appropriateness of Rehearing En Banc, filed June 30, 1977,

was denied August 12, 1977. Jurisdiction is invoked under 28

U.S.C. 1254(1). The instant Petition is timely under Supreme

Court Rule 22(2), since filed within thirty days after entry of

final judgment.

Ill. QUESTIONS PRESENTED FOR REVIEW.

A. WHETHER THE RESENTENCING OF A

PROBATIONER TO A CONSECUTIVE SENTENCE

AT A PROBATION REVOCATION VIOLATES

DOUBLF JEOPARDY WHERE THE SENTENCING

JUDGE ON AN INTERVENING CONVICTION

REFUSES TO SPECIFY A CONSECUTIVE

SENTENCE AND THE PETITION TO REVOKE

PROBATION WAS SERVED ON THE

PROBATIONER TO INSURE DETENTION

DURING THE INTERVENING TRIAL?

B. WHETHER THE SPECIFICATION AT A

PROBATION REVOCATION THAT THE

SENTENCE IMPOSED IS TO BE CONSECUTIVE

TO AN INTERVENING SENTENCE, VIOLATES 18

U.S.C. 3653, 18 U.S.C. 3651, AND 18 U.S.C. 3568,

WHERE THE PETITION TO REVOKE PROBATION

HAD BEEN SERVED ON THE DEFENDANT TO

INSURE DETENTION DURING THE TRIAL ON

THE INTERVENING CONVICTION?

C. WHETHER A PROBATION REVOCATION CAN BE

BASED SOLELY ON AN INTERVENING INVALID

CONVICTION AND A REFERENCE TO

STATEMENTS MADE BY A PROBATIONER

ABSENT AN ADEQUATE OPPORTUNITY TO

ENPLAIN SAID STATEMENTS?

D. WHETHER THE COURT OF APPEALS CAN

REVERSE A PROBATION REVOCATION WHERE

PLAIN ERROR IN THE RECORD

DEMONSTRATES THAT THE ORIGINAL PLEA

WAS INVOLUNTARY, AND DID NOT CONFORM

TO THE DICTATES OF BOYKIN VV. ALABAMA,

395 US. 238 (1969), McCARTHY V. UNITED

STATES, 394 U.S. 459 (1969). CRIMINAL RULE

1}. CRIMINAL RULE 7. OR CRIMINAL RULE 5.

IV. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.

This case involves the double jeopardy and due process

clauses of the Fifth Amendment to the United States

Constitution. In addition, the case presents questions dealing

with the proper interpretation of 18 U.S.C. 3653, 18 U.S.C.

3651, 18 U.S.C. 3568, and the scope of plain error under Rule

32,11, 7. and 3. of the Federal Rules of Criminal Procedure.

The pertinent text of each is set out in Appendix C, infra.

Vv. STATEMENT OF THE CASE.

On September 15, 1976, the Petitioner's probation was

revoked. The Court specified that the sentence was to run

consecutively and not concurrently with an_ intervening

sentence. The Petitioner Lustig was originally convicted

pursuant to a purported plea of guilty to an Information

charging the illegal importing of marijuana in violation of 18

U.S.C. 545. (Hereinafter, the “marijuana” conviction).!/ The

probation revocation was based on an intervening conviction for

violating United States statutes relating to the controlled

substance cocaine. (21 U.S.C. 841, 844, 846). (hereinafter the

“cocaine” conviction). /

1/The purported plea of guilty to the Information was coerced with a

total lack of compliance with the Court's rulings in Bovkin vy. Alabama,

395 U.S. 238 (1969), McCarthy v. United States, 394 U.S. 459 (1969),

Criminal Rujé 11, Criminal Rule 7 and Criminal Rule 5. Mr. Lustig was

initially coerced to plead guilty in A77-69Cr, (U.S. Dist. Ct. Aka) on May

4, 1972, to a violation of 21 U.S.C. 176(a), in the midst of a jury trial, by

the incarceration by the government of a friend of Mr. Lustig for refusing

to testify against him, after two previous mistrials had been declared, one

due to a hung jury and one due to government misconduct. On June 21,

1973, Mr. Lustig was coerced to plead guilty to an Information charging a

violation of 18 U.S.C. 545 by the threat of a mandatory five years

incarceration under 2] U.S.C. 1976(a) in violation of the previous plea

agreement. (Tr. 11). During portions of the questioning mandated by

McCarthy v. United States, supra, Boykin v. Alabama, supra, and Rule 11,

it developed that the plea was involuntary and the Judge refused to accept

the plea and dismissed the Information. After nine months, new counsel

entered the case due to a conflict and the plea was purportedly reinstated

by “written stipulation,” with no new effort to conform to Rule 11,

obtain a new grand jury waiver under Ruly 7, rearraign the Defendant

under Rule 5, or determine whether “the stipulation” was voluntary.

2/The intervening conviction was in US. v. Lustig, et. al, No. A76-51

Cr., U.S, D. Crt. Aka. A direct appeal was denied by the Ninth Circuit on

June 15, 1977, in No. 76-2661, Slip Op. 1260, F268 annus, (Pune 85S,

1977, Petiticn for Rehearing En Banc denied August 12, 1977. A Petition

for a Writ of Certiorari to the United States Court of Appeals for the

Ninth Circuit with regard to said opinion, has been filed by the Petitioner

Lustig on today’s date. In addition, the co-defendant below, Gregory D.

Pederson, has filed a Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit, with regard to the companion

appeal, No. 76-2752, Slip Op. 1260, F.2d (9th Cir., June 15,

1977) in U.S. Supreme Court No, 77-5118. The Court is requested to take

judicial notice of the record in those proceedings.

. le ee ee

| be

AL the sentencing on the cocaine conviction, the government

urgued for a sentence consecutive to the probation revocation,

which was impliedly refused by the sentencing Judge,

Subsequentl, the Petitioner's probation was revoked, based

solely on a certified copy of the intervening convietion and

references to testimony by the defendant in the cocaine trial

that he possessed cocaine tor his personal use,

Despite the fuct that the warrant for the Petition toRevoke

Probation hud been served on Mr, Lustig. and used to hold him

without bail during his trial on the cocaine charges, and the

sentencing Judge on the cocaine charges had retused to impose

consecutive time, a different Judge at the probation revocation

specified that the five years which was to be reiimposed was to

be consecutive to the intervening sentence,

VI, REASONS FOR GRANTING THE WRIT OF

CERTIORARI,

A. THE IMPORTANT FEDERAL QUESTION OF

WHETHER INCREASING THE SEVERITY OF A

SENTENCE AT A PROBATION REVOCATION

VIOLATES DOUBLE JEOPARDY HAS BEEN DECIDED

IN CONFLICT WITH APPLICABLE DECISIONS OF THE

OTHER CIRCUITS AND THIS COURT,

An arrest’ warrant was served on Mr, Lustig pursuant to a

Petition to Revoke Probation, under 18 U.S.C, 3653 to deny

him pre-trial release and release pending appeal on the cocaine

charges.

Judge Von Der Heydt, the sentencing Judge on the cocaine

charges, by implication refused to impose consecutive time for

the intervening offenses,

1, THE IMPOSITION OF CONSECUTIVE TIME

INCREASES THE SEVERITY OF THE ORIGINAL

SENTENCE,

The double jeopardy clause of the Fifth Amendment to the

United States Constitution, provides in pertinent part:

. nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb, . .”

Mr. Lustig was originally sentenced on May 3, 1974, in a

judgment which read:

IT IS ADJUDGED, that the Defendant is hereby

committed to the custody of the Attorney General or his

wuthorized representative for imprisonment for a period of

five (5) years and fined the sum of $10,000.00, The

execution of the sentence as to imprisonment only is

suspended and the Defendant placed on probation for a

period of five (5) years under the following terms and

conditions, (Record 11) CB.AD)

On September 15, 1976, after his probation was revoked, a

new order was issued which read in pertinent part:

. IT IS ADJUDGED, that the Defendant is hereby

committed to the custody of the Attorney General or his

wuthorized representative for imprisonment for a period of

five (5) years. . . /7 7S FURTHER ORDERED, that said

sentence is to run consecutively and not concurrently with

the sentence imposed in Case No, A76-51 Cr, United

States of America v, George Lustig entered on July 9,

1976... (Record 97-98) (E.A,)

Since the Defendant was not originally placed on a

suspended imposition of sentence, but was placed on a

suspended execution of sentence, he had been sentenced for

if)

purposes of the double jeopardy clause, See Roberts v, United

States, 320 US, 264 11943),

lt is well established that “resentencing” a Defendant to

consecutive time, inereases the severity of a sentence, Boru v.

United States, 409 F.2d 433 (9th Cir, 1967), In United States ¥.

Bowens, S14 F.2d 440 (9th Cir, 1975), the Court held:

“Appellee correctly concedes that the resentencing of the

defendant, under See, 3651, constituted an increased

punishment from the valid portion of that imposed in the

first sentence, and that said increase of punishment, for

the same offense, violates the double jeopardy clause of

the Fitth Amendment. In’ Re Bradley, 318 U.S. 50, 63

S.Ct, 470, 87 L.Ed, 500 (1943); Tatum v. United States,

114 US. App. D.C. 49, 310 F.2d 854 (1962), United

States). Kenvon, 819 F.2d 1229 (9th Cir, 1975) CB. AD

See United States v. Lancer, 508 F.2d 719 (3rd Cir, 1975), tor

the distinction between a suspended execution of sentence and

suspended imposition of sentence.3/ By specifying that the five

years was to be consecutive, the Judge at the probation

revocation in effect extended his jurisdiction over the

Defendant to fourteen years in violation of 18 USC 545

(maximum five years), and 18 U.S.C, 3651, See United States y.

Moore, 101 F.2d 56 (2d Cir, 1939), cert, denied 306 U.S, 664,

3/See also, US, », Nagelberg, 413 F.2d 708, (2d Cir, 1969) cert den'd,

396 U.S, 1010, Baber v, ULS,, 368 F.2d 463 Cir, 1966), Dominiques »,

Hunter, 170 F 2d $46 (10th Cir, 1948), U.S, » You, 159 F.2d 688 (Qnd Cir,

1947), Gillespie v, Hunter, 189 F.2d 410 (LOth Cir, 1947), See also,

Williams v, US. 310 F.2d 696 (ard Cir, 1962), and U.S, v, Lancer, 508

F.2d 719 (3rd Cir, 1975) for the proposition that a judge cannot increase a

sentence ata probation revocation,

2 THE RESULT CONFLICTS WITH THE

PRINCIPLES OF THIS COURT'S DECISIONS AND

DECISIONS OF THe OTHER CIRCUITS WITH

RESPECT TO TH PERMISSIBLE MECHANISM,

UNDER THE DOUBLE JEOPARDY CLAUSE, OI

IMPOSING CONSECUTIVE TIME FOR A

REVOCATION,

The cases by the Court, or in the other circuits, that have

treated similar issues, have held that double jeopardy was not

violated, because a warrant was not served, and the sentence

need not begin until service of the warrant.4/

The leading case with regard to the imposition of

“consecutive time” at a revocation deals with parole as opposed

to probation, The precise holding, in Zerbst v. Kidwell, 304 US

359 (1938), was:

“The Parole Board and its members have been granted sole

uuthority to issue a warrant for the arrest and return to

custody of a prisoner who violates his parole. A member of

the Board ordered that respondent be taken into custody

after completion of the second sentence,

Until completion of the second sentence — and before the

warrant was served — respondent was imprisoned only by

virtue of the second sentence. There is, therefore, no

question as to concurrent service of sentences, unless — as

respondent contends — Par, 723(c) required that the

4/It appears that due to the timing of the intervening sentencing, and

the probation revocation, the opportunity for imposing consecutive time

had passed, in that Judge Von Der Heydt, the only Judge having

jurisdiction to impose consecutive time, chose not to do so. If the

government wished to have Mr, Lustig revoked prior to the sentencing on

the cocaine charges, they had 46 days to proceed, after the cocaine trial,

and prior to the sentencing with regard to the cocaine charges, This is not

4 Situation in which the government did not have an opportunity to ask

for any possible range of sentences from Judge Von Der Heydt, but made

a choice as to this sequence, Cf, Jeffers v, United States, 97 §.Ct, 2207

(1977) (Double jeopardy aspects dependent on procedural choice as to

sequence),

unespired part of respondent’s first sentences begin when

he was imprisoned under the second sentence, That section

provides

The Board of Parole... orany member theres, shall

have the exchisive authority. to issue warrants for the

rotuking of any United States prisoner who has violated his

parole The unexpired term of imprisonment of any such

prisoner shall begin to run from the date he is returned to

the institution, and the time the prisoner was on parole

shall not diminish the time he was originally sentenced to

serve! Lemphasis added]

In interpreting a similar question, in United States v, Tacoma,

JOU FP 2d 482 02d Cin 1982), the court held:

“We think the contention is utterly lacking in merit, The

statute, TS US.C.A, 3653, provides that ‘At any time

within the probution period’ the probationer may be taken

betore the court, and “Thereupon the court may revoke

the probation... and, if imposition of sentence was

suspended, may impose any sentence which might

orginally have been imposed,’ It has been authoritatively

decided that when a defendant pleads guilty to three

indictments and the court imposes 4 prison sentence under

one of the three, it may suspend imposition of sentence on

the other two and place the defendant on probation to

begin after service of the sentence on the third indictment,

brad y. Kelly, 302 U.S. 312, 314, 58 S.Ct. 188, 82 L.Ed,

e842.

We see no reason to douot that the court's discretion to

determine the sequence’ of sentences is equally broad when

the probationer is contemporaneously sentenced for

violation of probation and the commission of separate

crimes. See Mankowski v. United States, § Cir, 148 F.2d

143, 144, The order in which the prison terms are to be

served seems to be a mere matter of form affecting no

conceivable interest of the convict, Moreover, acceptance

of the appellant's contention would mean that where a

probationer is already in custody under a state sentence us

was the appellant, probation may never be revoked

without resulting in making the sentence on the revocation

run concurrently with the existing state sentence — a most

undesirable result, We find nothing in Zerbst v. Kidwell,

304 U.S, 359, 58S, Ct, 872, 82 L.Ed, 1399, upon which

the appellant particularly relies, to support his contention,

The order on appeal is affirmed.” [emphasis added]

United States v. Tacoma, supra, was cited as controlling in

the opinion below, without recognizing that Tacoma, supra,

merely held that since the sentencing Judge had the power to

specily consecutive time for the new offense, the postponing of

the execution of a suspended sentence did not violate double

jeopardy, since the issue was one of form rather than

substance, 5

In the instant proceeding. Judge Von Der Heydt was the only

Judge that had the power to specify consecutive time,®/ as to the

5/A similar result was reached in U.S, v, Liddy, $10 F.2d 669 (D.C. Cir,

1974), where the court held that a Judge who had the power to reach a

particular aggregate term could do so by interuption of the execution of a

sentence, by amending the sentence during the term of the court, See also

Crowe v, U.S,, 200 F.2d 526 (6th Cir, 1962), holding that postponement of

the expiration date of a sentence is tantamount to increasing it, if said

postponement occurs at a probation revocation, See also the dissent by

Circuit Judge MeKennon in Liddy, supra, which states that, interrupting a

sentence violates double jeopardy.

6/It is significant that Judge Von Der Heydt, the Judge at the

intervening sentencing, was specifically aware of the pending probation

revocation (See Tr. in A76-51 Cr., sentencing remarks and questioning of

defense counsel), and further that the government specifically referred to

the pending probation revocation and asked for “separate time,

irrespective, in addition to whatever might be given him by Judge Plummer

in that case.” (Tr, of July 9, 1976, sentencing remarks of U.S, Attorney in

A76-51 Cr., pe. 17)

new otfense., and thus Judge Plummer, unlike the Judge in

Tacoma, supra, did not have the power.

In Brown v. Ohio, 97 S.Ct. 2221, 2225 (1977), the Court

held

“The Double Jeopardy Clause — ‘protects against a second

prosecution for the same offense after conviction, And -

multiple punishment for the same offenses, — and from

attempts to secure additional punishment after a prior

conviction and sentence, — (citations omitted) (E.A.)

See also. Green vo United States, 355 U.S, 184, 187-188

(1987) cattempts at additional punishment): Cf, North Carolina

» Pearce, 998 US, 711 (1969) (No increased punishment after

successful appeal and retrial; credit for time served).

In United States vy. Benz, 282 US, 304, $1 $.Ct.113, 75

L.Ed. 2d 38461931), the Court held “. .. the court during the

sume term may amend... the punishment, but not so as to

increase it.” (Benz, at 282 U.S, 307). The instant order by

Judge Plummer was years after the initial term had expired.

United States v, Bartholdi, §43 F.2d 1224 (9th Cir, 1972), is

also erroneously cited since the case merely indicates that the

government can postpone the execution of a warrant, or

hearing. while a defendant is incarcerated or in State

custody,” /

7 18 U.S.C. 3653 specifically provides that after service of a warrant,

the revocation and sentencing shall be “thereupon” conducted, For other

cases relying on the significance of the service of the warrant and the

precise wording of the parole statute, see Taylor v, United States Marshal

jor the bastern District of Oklahoma, 352 F.2d 232 (10th Cir, 1965);

Letellur . Taylor, 348 F.2d 893 (10th Cir, 1956) cert, den'd, 351 U.S.

072, Jenkins v, Madigan, 211 F.2d 904 (7th Cir, 1954), Zerbst v, Kidwell,

supra,

The instant opinion holds that:

° Consecutive sentences are an appropriate mechanism for

imposing a distinct punishment for each of two criminal

acts. U.S. v. Lustig, supra, Slip Op. No. 1277 at 1279.

While, Zerbst v. Kidwell, supra, likewise recognized the

necessity of this option, Judge Von Der Heydt was the vehicle

for said separate punishment, not Judge Plummer.8/

“It the United States wanted consecutive time the vehicle

was through Judge Von Der Heydt. Mr. Edwards indicates

that he specifically asked Judge Von Der Heydt not to

consider the time. He didn’t specifically ask him not to

impose consecutive sentences. . . and he made almost the

identical argument that he has made to Your Honor today,

that there should be separate sentences, the implication

being that Judge Von Der Hevdt should have given him

whatever time he wanted and ran it consecutively if he

decided to. (Tr. 9/15/76)

B. THE DECISION DECIDES THE IMPORTANT

FEDERAL QUESTIONS OF THE PROPER

INTERPRETATION OF 18 U.S.C. 3653, 18 U.S.C.

3651, 18 U.S.C. 3568, AND FEDERAL RULE OF

CRIMINAL PROCEDURE 32, ON MATTERS THAT

‘ HAVE NOT BEEN, BUT SHOULD BE, SETTLED

BY THIS COURT.

8/For other authority with regard to the inability of a Judge to increase

the severity of a sentence on a revocation, see Roberts v. United States,

320 US 264 (1943), Wright on Criminal Procedure, 530 and 532,

Annotation “Propriety in Imposing Sentence for Original Offense After

Revocation of Probation of Considering Acts Because of Which Probation

Was Revoked,” 65 A.L.R. 3rd 1100, and Annotation, “Sentence for New

Offense Committed While On Parole or Conditional Release as Concurrent

or Consecutive,” 166 L.Ed. 811.

| ,

Ihe execution of a Petition to Revoke Probation on Mr.

Lustig. Was not a mere formality.9’ 18 U.S.C. 3653 provides in

pertinent part

Sec. 3653. Report of probation officer and arrest of

probationer.

1s specdili as possible after arrest the probationer shall be

tuken betore the court for the district having jurisdiction

over him. Thereupon the court may revoke the probation

und require him to serve the sentence imposed, or anv

lesser sentence, and, if imposition of sentence was

suspended. may impose any sentence which might

originally have been imposed. (E.A.)

18 U.S.C 36051 provides in pertinent part:

Sec. 3651. Suspension of sentence and probation.

The period of probation, together with any extension

thereot. shull not exceed five vears. (F.A.)

18 U.S.C. 3568 provides in pertinent part:

Sec. 3568. Effective date of sentence: credit for time in

custody prior to the imposition of sentence.

The Attorney General shall give any such person credit

toward service of his sentence for any days spent in

%/ The government in essence, wants to “have its cake and eat it” in

that it filed a Petition To Revoke Probation, has used said petition, and

probation revocation, to insure defendant's incarceration during the trial,

sentencing, and appeal, in the companion cocaine case, but now wants to

maintain that the service of said Petition to Revoke was a mere formality,

such as to defeat the clear language of 18 USC 3653, to the effect that

revocation and sentencing shall be conducted “thereupon” after service.

Further. the record reflects that Mr. Lustig was denied several times his

request to postpone the probation revocation hearing and the probation

revocation sentencing until after his appeal in the cocaine case. (See Tr. of

8 31/76, and 9/15/76 in A115-73 Cr. below)

custody in connection with the offense or acts for which

sentence was imposed.

Vo sentence shall prescribe any other method of

computing the term. Ck.A,)

The use of the warrant to the benefit of the government. and

the denial of a continuance of the hearing or sentencing.

violates the clear mandate of 18 U.S.C. 3653 that sentence was

to be “thereupon imposed.” Said sentence was imposed to

begin running at a period past the jursidictional limit of Title 18

U.S.C. $45 and 18 U.S.C. 3651. (five years)! 9’

18 U.S.C. 3568 was violated by the sentence in that Mr.

Lustig is being denied credit for all time served in custody in

connection with the probation revocation (he is incarcerated

now as a result of the no bail status).

The Court should grant certiorari to rule that the clear

mandate of 18 U.S.C. 3653, 18 U.S.C. 3651 and 18 U.S.C.

3568 cannot be ignored. Probation should not be extended

indefinitely or a probation revocation warrant used as a means

of incarcerating a probationer, without an immediate hearing,

and the right to begin serving the sentence immediately, with

credit for all time served in connection with the offense.!!/

10/For authority that a revoking Judge may not exceed his jurisdiction

by attempting to impose a sentence previously suspended at a time to start

after the statutory jurisdictional period for the original offense, see US. v.

Sherwood, 435 F.2d 867 (10th Cir., 1970), cert. den’d, 402 U.S. 909, and

Welsh v. U.S., 348 F.2d 885 (6th Cir., 1965). C.F. Burgess v. Hudspeth,

120 F. 2d 550 (10th Cir., 1941).

11/For a similar issue, dealing with the problem of delay in parole

revocation hearings and the use of a “detainer”’ prior to the “execution”

of a warrant that has been issued, see Moody v. Daggett, 97 S.Ct. 274

(1970). The Court based its result in Moody on the fact that,

[2] Petitioner’s present confinement and consequent liberty loss

( [Ht OPINION DECIDES IMPORTANT FEDERAL

QUESTIONS AS TO THE STANDARD OF PROOF

AND ADMISSIBLE EVIDENCE FOR PROBATION

RLVOCATION UNDER 18 U.S.C. 3653. WHICH

HAVE NOT BEEN, BUT SHOULD BE. SETTLED

BY THIS COURT.

While the standard of proof for a probation revocation under

18 U.S.C. 3683 is less than proot beyond a reasonable doubt, it

is well established that due process applies to such

proceedings. ! :

A probation revocation based solely on an invalid intervening

conviction. and references to statements made by the

probationer outside the probation revocation hearing. absent an

adequate opportunity to explain the statements. violates due

process. ! +

i'l cont.

derives not in any sense from the outstanding parole violator

Warrant

[In! Morrisser, supra, at 488, 92 S.Ct. at 2608, we established

execution of the warrant and custody under that warrant as the

operative crent triggermg any loss of liberty attendant upon parole

revocation, This is a functional designation, for the loss of liberty as

uv parol violator does not occur until the parolee ts taken into

custods under the warrant. Cf. 18 U.S.C. Sec. 4206 (1970 ed.). 18

U.S.C. Sec. 421 34d). (citations omitted, E.A.)

12'See eg. Wolff v. McDonnell, 418 U.S. 539 (1974), Gagnon y.

Scarpelli, 411 U.S. 778 (1973) Morrissey v. Brewer, 468 U.S. 471, 480

(1972) and VeGinnis v. Stevens, 543 P 2d 1221, 1226 (AKA, 1975)

13 The revocation was based on a certified copy of the Petitioner's

conviction in United States v. Lustig, et.al, U.S.D.Ct. AKA No. A76-51

Cr.. Ninth Circuit No. 76-2661. That conviction is the subject of a pending

Petition for a Writ of Certiorari to the Ninth Circuit Court of Appeais.

tiled herewith. In addition, the government introduced evidence that Mr.

Lustig had testified in his defense at the cocaine case, that he possessed

cocaine for personal use. A stay of the probation revocation proceedings

was requested in order to allow the defendant to challenge the intervening

comviction on appeal, and to take the stand at the probation revocation to

explain the statements in A76-71 Cr., without waiving his Fifth

Amendment privileges. A stay was denied.

The cases cited by the Ninth Circuit in upholding the bases of

the revocation are clearly distinguishable. Bernal-Zazueta vy.

United States, 225 F.2d 64, 68 (9th Cir. 1955), did not deal

with a situation in which the defendant was alleged to have

made statements, with no adequate opportunity to explain said

statements before the revoking Judge.

The distinction is a critical one. since the necessity for an

opportunity to explain statements is the basis for the “corpus

delicti’’ rule. '4/) The Court in Bernal-Zazueta, supra,

specifically relied at 225 F2d 68 on the fact that “this

Detendant said in open court that he made such admissions.” In

United States vy. Miller, 514 F.2d 41 (9th Cir. 1975), there was

no allegation that the conviction relied upon was invalid. The

only issue was whether a probation officer could establish,

through hearsay, that he had ascertained that a state conviction

had been obtained.

“. . .[A] ppellant did not challenge the accuracy of the

information revealed by the testimony in the records.

Miller, supra 2t 514 F.2d 42.

There is no indication in Miller, supra, whether the

conviction was challenged on appeal.

In United States v. Carrion, 457 F2d 808, 809 (9th Cir.

1972), the federal conviction on appeal was a partial basis for

revocation; the state conviction which was an alternate basis for

revocation was final; and the Judge specifically noted that the

violation of State law was sufficient for violation of probation..

In United States v. Garza, 484 F2d 88, 89 (Sth Cir. 1973),

while the federal conviction serving as the basis for the

revocation was still on appeal, the Fifth Circuit relied on United

14/See Tr. of 8/31/76 in A-115-73 Cr. at 45-57 for desire to explain

Statements to Judge after appeal in the cocaine case.

States v. Carrion, supra, without indicating that the state

conviction in Carrion had become final.

Thus. it is imperative that this Court grant certiorari to rule

clearly that under 18 U.S.C. 3653, in the absence of clear and

independent proof other than mere alleged oral statements. or

invalid convictions. probation may not be revoked. Any other

result means quite simply that probationers may be subjected to

invalid trials, and needless incarceration, as in the instant

proceeding: obtaining their freedom only after waiting for reliet

from an appellate court.

D. THE IMPORTANT FEDERAL QUESTION OF

WHETHER PLAIN ERROR UNDER CRIMINAL

RULE §, 7.11, BOYKIN V. ALABAMA, 395 US 238

(1969). AND McCARTHY V. UNITED STATES,

394 US 459 (1969), WITH REGARD TO THE

VALIDITY OF AN INITIAL PLEA OF GUILTY,

MAY JUSTIFY REVERSAL ON APPEAL FROM A

PROBATION REVOCATION, HAS NOT BEEN,

BUT SHOULD BE. SETTLED BY THIS COURT.

The record demonstrates, (1) a total lack of conformance

with Criminal Rule 5, 7, and 11; (2) a lack of conformance with

Boykin, supra, and McCarthy, supra, and (3) a coerced plea to

avoid an invalid sentence and incarceration of a witness. (See

Appellant’s opening Brief at 41-65, Appellant’s Reply Brief, at

11-16 15/

The opinion holds that Mr. Lustig may not “collaterally

attack” his original conviction. United States v. Lustig, No.

76-3146. Slip Op. 1277, at 1278.

1$ See, e.g. Blackledge v, Allison, 97 S.Ct. 1621 (1977) (Procedural

Aspects of Habeaus Corpus for unkept plea agreement, record may

foreclose necessity for evidentiary hearing, availability of summary

judgment).

This ignores the fact Motions to Withdraw Plea of Guilty

and to Set Aside Judgment were filed on September 17,

1976, two days after the Order of Revocation was issued on

September 15, 1976. (Record 97-100). Further. the revoking

Judge was specifically put on notice prior to the sentencing for

the probation revocation, or the revocation itself, that the

defendant wished to indicate to the Court the circumstances in

which he had been coerced to enter the original plea. (Tr.

8/31/76, 9/15/76 in Al15-73 Cr. at 40, 41: Appellant’s Reply

Brief in No. 76-3146 at pg. 68).

The revoking Judge was also specifically put on notice that

Mr. Lustig wished a continuance, or an opportunity to explain

the effects of the failure to conform to Criminal Rule 11.

(Appellant’s Reply Brief in No. 76-3146 at pg. 9-11).

pg. 9-11).

The cases cited, being Bernal-Zazueta v. United States, supra;

United States v. Francischine, 512 F.2d 827 (Sth Cir. 1975):

and Rodgers v. United States, 413 F.2d 251 (10th Cir. 1969),

do not deal with situations in which the revoking Judge was put

On notice as to the desire to withdraw the plea, or where the

record demonstrated plain error in the nature of the plea

proceedings.

Accordingly, the Court should grant certiorari, to hold that

as with other major violations of substantive rights, an

appellant court can reverse a probation revocation where there

is plain error appearing in the record as to the validity of the

initial plea that served as a basis for the initial conviction.

VII. SUMMARY AND CONCLUSIONS.

The Court should grant certiorari to hold that a probation

revocation based on out of court statements and an invalid

conviction violates due process, and that a court of appeals may

reverse a probation revocation based on plain error appearing in

the reeord with regard to the validity of the initial plea,

The imposition of a consecutive sentence in the probation

revocation hearing, with the facts and circumstances presented

by the instant proceeding, violated double jeopardy in that: (1)

the government insisted upon instituting a Petition for

Revocution and a hearing denying defendant's request for

continuance, and as a result, the defendant suffered direct

incarceration us a result, (2), the court ignored the mandate of

18 U.S.C, 3681, 3653 and 3568 that a sentence shall be

required to be served “thereupon” with credit for time served,

(3), specifying execution of said sentence to run consecutive to

No, A765] Cr, violated double jeopardy, since the Judge

revoking probation, Judge Plummer, did not have the power to

enforce consecutive time in cause No, A76-51 Cr., after Judge

Von Der Heydt refused to do so, such that the Petitioner had

stood in jeopardy for the intervening offense, (4), the situation

in the cases of Zerbst, supra, Bartholdi, supra, Tacoma, supra,

Liddy, supra, in which the Defendant should not be allowed to

“escape punishment for a portion of his original offense” are

not applicable in the instant case due to the opportunity of the

government to revoke probation prior to sentencing with regard

to the new offense, and due to the actual service of the Petition

to Revoke with the corresponding harm of incarceration,

Accordingly, the government has reached through the

revocation, a sentence refused by the Judge on the intervening

offense, and Mr, Lustig’s rights to due process and protection

against double jeopardy have been violated, Thus, this Court

should grant Certiorari in order to rule clearly that such a

circumvention of the statutory and constitutional protections

aguinst double jeopardy, and needless incarceration without due

process, Shall not stand,

RESPECTFULLY SUBMITTED this 42° day of September,

1977, at Anchorage, Alaska,

LIDNER, Attorney

PHILLIP P,

for Petitioner, George H, Lustig

DRATHMAN, WEIDNER & BRYSON

333 W. Fourth Avenue

Suite 35

Anchorage, Alaska 9950]

-V

CERTIFICATE OF SERVICE BY MAIL

| hereby certify, that pursuant to Rule 2101), Rule 3301),

Rule 3302) (a), and Rule 3303) (b), of the Supreme Court Rules

of Appellate Procedure, that Lam a member of the Bar of the

U.S, Supreme Court in good standing, and that three copies of

the foregoing Petition for a Writ of Certiorari to the U.S, Court

ot Appeals for the Ninth Circuit were served upon counsel for

the Respondent, by depositing the same in the United States

mail at Anchorage, Aluska, postage pre-paid, addressed to:

Vir, G. Kent Edwards

L,S, Attorney

OOS West Fourth Avenue

Anchorage, Alaska 99501

und further, that three copies of the foregoing Petition for a

Writ of Certiorari to the U.S, Court of Appeals for the Ninth

Circuit were served upon the Solicitor General of the United

States by depositing the same in the United States mail, at

Anchorage, Alaska, airmail, postage pre-paid, addressed to:

Solicitor General

Department of Justice

Washington, D.C, 20530 L

DATED at Anchorage, Alaska thif4_day of September,

a AMM

PHILLIP P, WEIDNER, Attorney

for Petitioner, George H.

Lustig

APPENDIX A — OPINION OF THE NINTH CIRCUIT COURT

OF APPEALS IN US. V. LUSTIG, NO.

76-3146, AND ORDER DENYING

REHEARING EN BANC,

UNITED STATES of America,

Plaintiff - Appellee,

George H, LUSTIG,

Defendant - Appellant

No. 76-3146.

United States Court of Appeals,

Ninth Circuit,

June 15, 1977,

Following cocaine conviction the United States District

Court for the District of Alaska, Raymond E. Plummer, J.,

revoked defendant's probation and reimposed five-year sentence

assessed against defendant on prior marijuana conviction, and

defendant appealed. The Court of Appeals held that: (1) since

certified copy of cocaine conviction was unchallenged such

certificate itself constituted sufficient proof that defendant had

committed a crime in violation of terms of probation; (2)

neither original marijuana conviction nor subsequent cocaine

conviction could be collaterally attacked and (3) imposition of

consecutive sentences was not improper.

Affirmed.

1. Criminal Law — 982.9(1)

Probation may be revoked where the judge is reasonably

satisfied that a state or federal law has been violated.

2. Criminal Law — 982,9(5)

Since certified copy of subsequent cocaine conviction was

unchallenged such certificate, in itself, constituted sufficient

proot that detendant, who suffered the cocaine conviction

while on probation following prior marijuana conviction, had

committed a crime in violation of terms of probation:

jurthermore, excerpts of defendant's testimony at the tral on

the cocaine charges, during which he admitted possessing

cocaine, further supported determination to revoke probation

and reimpose sentence, 18 U.S.C.A, 6 545,

3. Criminal Law ~ 982.9% 2)

Neither original marijuana conviction nor subsequent cocaine

conviction resulting in’ revocation of probation could be

collaterally attacked and, hence, validity of such convictions

could not be asserted as grounds for reversal of district court's

order revoking probation and reimposing sentence on the

marijuana conviction, 18 US.C.A, & 545,

4. Criminal Law — 982.98)

On revoking probation district court was not without power

to order that five-year sentence imposed on original marijuana

conviction run consecutively to intervening nine-year sentence

imposed on cocaine conviction, which conviction lead to

revocation proceedings. 18 U.S.C.A, § 545,

5. Criminal Law — 982.9(8)

In reinstating a sentence on revocation of probation, the

district court may, in its discretion, order that the sentence be

served consecutive to a federal sentence for an intervening crime

to insure that the defendant is punished both for the original

conviction and the subsequent offense.

6. Criminal Law — 991(1)

Consecutive sentences are an appropriate mechanism for

imposing a distinct punishment for each of two criminal acts.

Appeal trom the United States District Court for the District

ot Alaska,

Before CARTER, TRASK and KENNEDY, Circuit Judges.

PER CURIAM:

On May 3, 1974 Lustig pleaded guilty to a charge of

smuggling marijuana in violation of 18 U.S.C, 6 545

(hereinafter the marijuana conviction), He was fined $10,000

und sentenced to a five-year prison term, The prison term was

suspended and Lustig was placed on probation subject to

normal conditions, including the requirement that Lustig not

violate any law and that he not leave the state.

In 1976 Lustig was convicted on four separate counts of

conspiring to distribute a controlled substance, distribution of

cocaine, possession of with intent to distribute cocaine, and

simple possession of cocaine, He was sentenced to a total of

nine years’ imprisonment, Thereafter, the district court revoked

Lustig’s probation and reinstated the original five-year sentence

for the marijuana conviction. In its judgment pronouncing

sentence, the court expressly provided that the five-year

sentence was to be consecutive to the intervening nine-year

sentence on the cocaine conviction, Lustig appeals from the

district court’s orders revoking probation and reimposition of

sentence on the marijuana conviction, We affirm.

[1,2] Lustig first contends that the evidence was insufficient

to support revocation of his probation, The claim is without

merit. Probation may be revoked where the judge is reasonably

satisfied that a state or federal law has been violated, United

States v. Carrion, 457 F.2d 808, 809 (9th Cir. 1972). The

Government introduced a certified copy of Lustig’s cocaine

M4 '

conviction at the revoeation proceeding! This was unchallenged

und in itsell constituted sufficient ne that Lustig had

committed a erime in violation of Yhe terms of his probation.

Cnited States v. Miller, 814 F2d (Oth Cir, 1978): United States

1 Winsett, S18 F.2d SI, S$ 1, 6 (nth Cir, 1975) (dictum), The

Government also introduced exerpts of Lustig’s testimony at

the trial on the cocaine charges during which he admitted

possessing cocuine, That testimony further supports the district

court's determination, Bernal-Zazueta vo United States, 225

F.2d 64, 68 (9th Cir, 1955),

[3] Lustig next attucks the validity of both the original

murijuana conviction and the cocaine conviction and argues that

their invalidity requires reversal of the probation revocation

order, However, Lustig may not collaterally attack either the

original conviction, Bernal-Zazueta v. United States, 225 F.2d

at 68; United States v, Francischine, §12 F.2d 827 (Sth Cir.

1975); Rodgers v. United States, 413 F.2d 2S) (10th Cir.

1969), of the conviction on which the decision to revoke

probation was based, United States v. Garza, 484 F.2d 88, 89

(Sth Cir, 1973); see United States v. Carrion, 457 F.2d at 809.

The validity of the marijuana and cocaine convictions are issues

that are therefore not properly before us and may not here be

asserted as grounds for reversing the district court's order in

these proceedings.

[4-6] Finally, Lustig claims that the district court upon

revoking probation had no power to order that the five-year

sentence on the original conviction should run consecutively to

the intervening nine-year sentence. We disagree. In reinstating a

sentence upon revocation of probation, the district court may

in its discretion order that the sentence be served consecutive to

a federal sentence for an intervening crime to insure that the

defendant is punished both for the original conviction and the

subsequent offense. United States v. Tacoma, 199 F.2d 482 (2d

Cir. 1952): cf. United States v. Bartholdi, 453 F.2d 1225, 1226

(9th Cir. 1972). Consecutive sentences are an appropriate

mechanism for imposing a distinct punishment for each of two

criminal acts. The district court’s imposition of the consecutive

sentence in this case was not improper.

Lustig’s other contentions are without merit.

AFFIRMED.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

)

) No. 76-2661

v. )

GEORGE H. Lustig. et al., )

Defendants-A ppellants.

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )

\. No. 76-3146

GEORGE H. Lustig. )

Defendant-Appellants. )

) ORDER

Before: CARTER. TRASK and KENNEDY, Circuit Judges.

The panels in the above entitled cases have voted in each case

to deny the petition of defendant-appellant Lustig for

rehearing. Judges Trask and Kennedy in each case have voted to

reject the suggestion for rehearing en banc of

defendant-appellant Lustig, and Judge Carter so recommends.

The petitions for rehearing and suggestion for rehearing en

bane having been circulated to all active judges and no judge

having voted for a rehearing en banc,

IT IS ORDERED that the petition for rehearing in each case

is DENIED, and the suggestion for rehearing en banc in each

case is REJECTED.

(Filed 8/12/77)

APPENDIX B— INFORMATION, WRITTEN DECISIONS

AND ORDERS OF THE DISTRICT COURT,

AND DOCUMENTS RELATING TO PLEA

WITHDRAWAL

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,

)

Plaintiff.

v. ; CR. NO. A-115-73 Cr.

GEORGE LUSTIG, ) In Violation of Title 18,

Defendant. U.S.C. Section 545

SMUGGLING MERCHANDISE

INFORMATION

THE UNITED STATFS ATTORNEY CHARGES:

That on or about June 18, 1969, at Anchorage International

Airport, Anchorage, Alaska, in the District of Alaska, defendant

GEORGE LUSTIG did smuggle and cladestinely introduce into

the United States, knowingly and with intent to defraud the

United States, merchandise, to wit: approximately nine (9)

pounds of hashish, having failed to invoice said merchandise, all

in violation of Title 18, United States Code, Section 545.

DATED at Anchorage, Alaska this 21st day of June, 1973.

G. Kent Edwards

United States Attorney

By: /s/ Peter M. Page

Assistant U. S. Sttorney

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff,

Vs. )

GEORGE LUSTIG, )

Defendant.

No. A-115-73 Cr.

ORDER DISMISSING INFORMATION

WITHOUT PREJUDICE

After due consideration. it is ORDERED that the

information filed in the above entitled case on June 21, 1973, is

hereby dismissed without prejudice.

/s/ Raymond E. Plummer

Senior Judge

DATED JUN 25, 1973

Copies mailed to:

Peter Page, Esq., Assistant

U. S. Attorney

Michael Rubenstein, Esq.

(E. A.)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff.) No, A-115-73 CR.

, )

GEORGE LUSTIG, )

)

Defendant. \ sTIPULATION

IT IS HEREBY STIPULATED BETWEEN the Defendant

GEORGE LUSTIG: his counsel, Wendell P. Kay: and JOHN D.

ROBERTS, Assistant United States Attorney, as follows:

WHEREAS this above case has been set for sentencing on

March 29, 1974, before this Honorable Court, the parties hereto

desire to make the foregoing statement and stipulation:

Defendant GEORGE LUSTIG agrees that he will make no

effort to set aside or to modify in any way the Order of this

Court dated March 4, 1974, including the findings set forth

therein;

Defendant GEORGE LUSTIG has freely and voluntarily

entered his plea of guilty to the one count information filed

June 21, 1973, which charges a violation of Title 18, United

States Code, Section 545.

The UNITED STATES recommends that the following

sentence be imposed upon GEORGE LUSTIG in Case No.

A-1 15-73 CR.:

That defendant GEORGE LUSTIG be committed to the

custody of the Attorney General or his authorized

representative for imprisonment for a period of five (5) years

and pay a fine to the UNITED STATES in the amount of

$10,000.

A 60-day stay of execution is hereby granted, and upon the

condition that the defendant pays $7,500 of said fine within 60

duys trom the date of this Order, the defendant shall be placed

on probation under the standing conditions of this Court and

the balance of this sentence suspended.

DATED and entered into this 3 day of May. 1974, at

Anchorage, Alaska.

G. KENT EDWARDS

United States Attorney

By: /s/ John D. Roberts

Assistant U.S. Attorney

/s’ Wendell P. Kay,

Attorney for defendant

1, GEORGE LUSTIG, have read the foregoing Stipulation

and agree to the recommendations of counsel.

DATED this 3 day of March, 1974, at Anchorage, Alaska.

/s/ George Lustig,

Defendant

SUBSCRIBED AND SWORN TO before me this 3 day of

March, 1974, at Anchorage, Alaska.

/s/ Kim Denise Mizar

Notary Public in and for Alaska

My commission expires: 4/24/78

Approved May 3, 1974

's/ Raymond E, Plummer

Senior Judge

(E. A.)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff, ‘

vs. )

GEORGE LUSTIG, )

Defendant. ‘

No. A-115-73 Cr.

MEMORANDUM AND ORDER

The court has reviewed and considered (1) the reporter’s

transcript of plea for the proceedings held on May 4, 1972, in

Case No, A-79-69 Cr., entitled U.S. v. George Lustig; (2) the

reporter’s transcript of proceedings held on June 21, 1973, in

Case No, A-115-73 Cr., entitled U.S. v. Geroge Lustig: (3) the

proceeding held on January 26, 1973, in Case No. A-79-69 Cr.,;

(4) all evidence admitted during the trials in A-79-69 Cr.; and

(5) the opinion of the Supreme Court of the United States in

North Carolina v, Alford, 400 U.S. 25.

Having done so, and having heretofore addressed the

defendant personally, the court finds (1) the plea of guilty

entered by defendant on June 21, 1973, in Case No, A-115-73

Cr. was made intelligently, voluntarily, knowingly and with

complete understanding of the nature of the charge and the

consequences of the plea; (2) there is a factual basis for the plea

of guilty; and (3) an order should be entered reinstating the

information filed in Case No, A-115-73 Cr. on June 21, 1973,

and dismissed by the court without prejudice on June 25, 1973;

and (4) that the plea of guilty should now be accepted by the

court.

Accordingly, it is ORDERED as follows:

1. The information filed in Case No. A-115-73 Cr. on June

21, 1973, and dismissed by the court without prejudice on June

25, 1973. is hereby reinstated fully and for all purposes.

>. The time for imposition of sentence is hereby set at the

hour of 1:30 p.m. on Friday, March 29, 1974,

3. Unless subsequently convinced to the contrary, it is the

court’s intention in sentencing the defendant to carry into

effect the recommendation previously made to the court by

counsel for the parties.

‘'s/ Raymond E. Plummer

Senior Judge

DATED: March 4, 1974

Copies mailed to:

G. Kent Fdwards, Esq.. U. S. Attorney

Michael Rubinstein, Esq.

Edgar Paul Boyko, Esq.

George Lustiz

(E. A.)

MINUTES OF

THE UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

UNITED STATES OF AMERICA vs. GEORGE LUSTIG.

xx HON. RAYMOND E. PLUMMER No. A-115-73 Cr.

Deputy Clerk

Jim Mayers

xx Jeri Whitaker

HON. JAMES A. VON DER HEYDT

Reporter

xx Nancy Markle

Dolores Runner

APPEARANCES:

PLAINTIFF: John Roberts, Assistant U.S. Attorney

DEFENDANT: Michael Rubinstein, Retained

(Wendall P. Kay, Retained)

PROCEEDINGS: Imposition of sentence.

ce:

At 1:30 P.M., court convened.

Mr. Rubinstein re motion for order allowing substitution of

attorney.

Motion filed.

M/O It is hereby ordered that Michael Rubinstein be

discharged as attorney of record, and substituting in his place

Wendall Kay for the reason that defendant and his present

counsel are in irreconcilable conflict and defendant wishes

Mr. Kay to undertake his representation at this juncture.

Mr. Kay requests sentencing be set over while he reviews

filed.

Imposition of sentence set for 9:30 A.M., May 3, 1974.

At 1:45 court recessed. DATE: March 29, 1974

U. S. Attorney

Michael Rubinstein INITIALS /s/ J. W.

Wendall P. Kay Deputy Clerk

(E. A.)

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF ALASKA

UNITED STATES OF AMERICA )

)

» No. A-l 15-73 Criminal

GEROGE LUSTIG )

)

On this 3rd day of May, 1974 came the attorney for the

government and the defendant appeared in person and by

counsel, Wendell P. Kay.

IT 1S ADJUDGED that the defendant upon his plea of

guilty has been convicted of the offense of Smuggling

Merchandise in violation of Title 18, U.S.C. Section 545, as

charged in the information and the court having asked the

defendant whether he has anything to say why judgment should

not be pronounced, and no sufficient cause to the contrary

being shown or appearing to the Court,

IT IS ADJUDGED that the defendant is guilty as charged and

convicted.

IT IS ADJUDGED that the defendant is hereby committed

to the custody of the Attorney General or his authorized

representative for imprisonment for a period of five (5) years

and fined the sum of $10,000. The execution of the sentence as

to imprisonment only is suspended and the defendant placed on

probation for a period of five (5) years under the following

terms and conditions.

1. That he obey all local, state and federal laws.

>, That he comply with the rules and regulations of the

probation department.

3. That on the condition that the defendant pay $7,500 within

60 days of the date of this order, the $2,500 balance will

thereupon be deemed remitted or suspended.

IT IS ORDERED that the Clerk deliver a certified copy of

this judgment and commitment to the United States Marshal or

other qualified officer and that the copy serve as the

commitment of the defendant.

/s/ Raymond E. Plummer

United States District Judge

By: /s/ Jeri Whiteher

Deputy Clerk.

The Court recommends commitment to

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff, ‘

vs. )

GEORGE LUSTIG, )

Defendant.

A-115-73 Criminal

ORDER REVOKING SUSPENDED

SENTENCE AND PROBATION

and

JUDGMENT AND COMMITMENT

This cause coming on for hearing on August 31, 1976 upon

the application of Merlyn M. Runestad, United States Probation

Officer, for revocation of suspended sentence and probation,

such sentence having been entered in this cause on the 3rd day

of May, 1974 upon a plea of guilty by said defendant on a

charge of Smuggling Merchandise as charged in the Information

on file: Plaintiff represented by United States Attorney G. Kent

Edwards: Defendant in custody and represented by Philip

Weidner, retained counsel; and the defendant having been found

guilty of violating said probation, and the Court being fully

advised in the premises,

iT IS HEREBY ORDERED that the suspended execution of

sentence and probation for a period of five (5) years entered

against the defendant on the 3rd day of May, 1974, be and the

same is hereby revoked.

IT IS ADJUDGED that the defendant is hereby committed

to the custody of the Attorney General or his authorized

representative for imprisonment for a period of five (S) years

and fined the sum of Ten Thousand Dollars ($10,000).

IT IS FURTHER ORDERED that said sentence is to run

consecutively and not concurrently with the sentence imposed

in Case No. A76-51 Cr., United States of America vs. George

Lustig, entered on July 9, 1976.

IT IS ORDERED that the Clerk deliver a certified copy of

this sentence to the United States Marshal or other qualified

officer and that the copy serve as the commitment of the

defendant.

DATED at Anchorage, Alaska this 15th day of September,

1976.

/s/ Raymond E. Plummer

United States District Judge

cc: U.S. Marshal

U. S. Attorney

Probation Office

Phillip P. Weidner

900 West Fifth Avenue

. Anchorage, Alaska 99501

907-276-7000

Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff. ) MOTION TO WITHDRAW

vs. ) PLEA OF GUILTY OR IN

GEORGE LUSTIG, ) THE ALTERNATIVE,

Defendant. ) MOTION TO SET ASIDE

’ THE JUDGMENT FOR

MANIFEST INJUSTICE

COMES NOW the defendant, GEORGE LUSTIG, by and

through his attorney, PHILLIP P. WEIDNER, and hereby moves

this court to allow him to withdraw his plea of guilty previously

entered in this case on May 3, 1974. In the alternative, the

defendant respectfully requests this court to set aside the

judgment and conviction and permit the defendant to withdraw

his plea. This motion is made pursuant to Federal Rules of

Criminal Procedure 32(d).

This motion is made on the grounds that the original plea in

this case was not entered voluntarily, but further, was the

product of coercion and threats by the government against a

potential witness for the Government. Specifically, it is the

position of the defendant that he would not have entered the

original plea, but for the threats by the Government to have a

close friend and associate incarcerated for a period of 18

months for refusal to testify against the defendant.

Further, said facts were brought to the attention of the

sentencing judge prior to the imposition of sentence in the

instant case on September 15, 1976, by the defendant

exercising his right of elocution. Further, the judge imposing

sentence specifically acknowledged his awareness of said

remarks by the defendant.

Thus. it is the position of the defendant that the plea should

be set aside to correct manifest injustice. See McAinnon y.

State, 526 P.2d 18 (Alaska 1974).

Further. should the Government contest any of the

defendant's contentions with regard to the fact that his plea was

coerced and involuntary, the defendant respectfully requests an

evidentiary hearing.

Respectfully submitted this 17th day of September, 1976, at

Anchorage, Aiaska.

/s/ Phillip P. Weidner

Attorney for Defendant

APPENDIXC— CONTAINS CONSITUTIONAL

PROVISIONS STATUTES, RULES,

REGULATIONS, INVOLVED.

TEXT OF AMENDMENTS TO THE U.S. CONSTITUTION

AMENDMENT [V]

“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 or 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 compensation.”

U.S. STATUTES

18 U.S.C. 3568. Effective date of sentence: credit for time in

custody prior to the imposition of sentence.

The sentence of imprisonment of any person convicted of an

offense shall commence to run from the date on which such

person is received at the penitentiary, reformatory, or jail for

service of such sentence. The Attorney General shall give any

such person credit toward service of his sentence for any days

spent in custody in connection with the offense or acts for

which sentence was imposed. As used in this section, the term

“offense” means any military commission, provost court, or

other military tribunal, which is in violation of an Act of

Congress and is triable in any court established by the Act of

Congress.

If any such person shall be committed to a jail or other place

of detention to await transportation to the place at which his

sentence is to be served, his sentence shall commence to run

from the date on which he is received at such jail or other place

of detention.

No sentence shall prescribe any other method of computing

the term.

18 U.S.C. 3651. Suspension of sentence and probation.

Upon entering a judgment of conviction of any offense not

punishable by death or life imprisonment, any court having

jurisdiction to try offenses against the United States when

satisfied that the ends of justice and the best interest of the

public as well as the defendant will be served thereby, may

suspend the imposition or execution of sentence and place the

defendant on probation for such period and upon such terms

and conditions as the court deems best.

Upon entering a judgment of conviction of any offense not

punishable by death or life imprisonment, if the maximum

punishment provided for such offense is more than six months,

any court having jurisdiction to try offenses against the United

States, when satisfied that the ends of justice and the best

interest of the public as well as the defendant will be served

thereby, may impose a sentence in excess of six months and

provide that the defendant be confined in a jail-type institution

or a treatment institution for a period not exceeding six months

and that the execution of the remainder of the sentence be

suspended and the defendant placed on probation for such

period and upon such terms and conditions as the court deems

best.

Probation may be granted whether the offense is punishable

by fine or imprisonment or both. If an offense is punishable by

both fine and imprisonment, the court may impose a fine and

place the defendant on probation as to imprisonment.

Probation may be limited to one or more counts or indictments,

but, in the absence of express limitation, shall extend to the

entire sentence and judgment.

The court may revoke or modify any condition of probation,

or may change the period of probation.

The period of probation, together with any extension thereof,

shall not exceed five years.

While on probation and among the conditions thereof, the

defendant —

May be required to pay a fine in one or several sums: and

May be required to make restitution or reparation to

aggrieved parties for actual damages or loss caused by the

offense for which conviction was had; and

May be required to provide for the support of any persons,

for whose support he is legally responsible.

The defendant’s liability for any time or other punishment

imposed as to which probation is granted, shall be fully

discharged by the fulfillment of the terms and conditions of

probation.

18 U.S.C. 3653. Report of probation officer and arrest of

probationer.

When directed by the court, the probation officer shall report

to the court, with a statement of the conduct of the

probationer while on probation. The court may thereupon

discharge the probationer from further supervision and may

terminate the proceedings against him, or may extend the

probation, as shall seem advisable.

Whenever during the period of his probation, a probationer

heretofore or hereafter placed on probation, goes from the

district in which he is being supervised to another district,

jurisdiction over him may be transferred, in the discretion of

the court, from the court for the district from which he goes to

the court for the other district, with the concurrence of the

latter court. Thereupon the court for the district to which

jurisdiction is transferred shall have all power with respect to

the probationer that was previously possessed by the court for

the district from which the transfer is made, except that the

period of probation shall not be changed without the consent of

the sentencing court. This process under the same conditions

may be repeated whenever during the period of his probation

the probationer goes from the district in which he is being

supervised to another district.

At any time within the probation period, the probation

officer may for cause arrest the probationer wherever found,

without a warrant. At any time within the probation period, or

within the maximum probation period permitted by section

3651 of this title, the court for the district in which the

probationer ‘is being supervised or if he is no longer under

supervision, the court for the district in which he was last under

supervision, may issue a warrant for his arrest for violation of

probation occurring during the probation period. Such warrant

may be executed in any district by the probation officer or the

United States marshal of the district in which the warrant was

issued or of any district in which the probationer is found. If

the probationer shall be arrested in any district other than that

in which he was last supervised, he shall be returned to the

district in which the warrant was issued, unless jurisdiction over

him is transferred as above provided to the district in which he

is found, and in that case he shall be detained pending further

proceedings in such district.

As speedily as possible after arrest the probationer shall be

taken before the court for the district having jurisdiction over

him. Thereupon the court may revoke the probation and

require him to serve the sentence imposed, or any lesser

sentence, and, if imposition of sentence was suspended, may

impose any sentence which might originally have been imposed.

FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 5.

INITIAL APPEARANCE BEFORE THE MAGISTRATE

(a) In General. An officer making an arrest under a

warrant issued upon a complaint or any person making an arrest

without a warrant shall take the arrested person without

unnecessary delay before the nearest available federal magistrate

or, in the event that a federal magistrate is not reasonably

available, before a state of local judicial officer authorized by

18 U.S.C. 3041. If a person arrested without a warrant is

brought before a magistrate, a compiaint shall be filed forthwith

which shall comply with the requirements of Rule 4(a) with

respect to the showing of probable cause. When a person,

arrested with or without a warrant or given a summons, appears

initially before the magistrate, the magistrate shall proceed in

accordance with the applicable subdivisions of this rule.

(b) Minor Offenses. If the charge against the defendant is

a minor offense triable by a United Stated Magistrate under 18

U.S.C. 3401, the United States magistrate shall proceed in

accordance with the Rules of Procedure for the Trial of Minor

Offenses Before united States Magistrates.

If the charge against the defendant is not triable by the United

States magistrate, the defendant shall not be called upon to

plead. The magistrate shall inform the defendant of the

complaint against him and of any affidavit filed therewith, of

his right to retain counsel, of his right to request the assignment

of counsel if he is unable to obtain counsel, and of the general

circumstances under which he may secure pretrial release. He

shall inform the defendant that he is not required to make a

Statement and that any statement made by him may be used

against him. The magistrate shall also inform the defendant of

his right to a preliminary examination. He shall allow ilic

defendant reasonable time and opportunity to consult counsel

and shall admit the defendant to bail as provided by statute or

in these rules.

A detendant is entitled to a preliminary examination, unless

waived, when charged with any offense. other than a petty

offense, which is to be tried by a judge of the district court. If

the defendant waives preliminary examination, the magistrate

Shall forthwith hold him to answer in the district court. If the

defendant does not waive the preliminary examination, the

magistrate shall schedule a preliminary examination. Such

examination shall be held within a reasonable time but in any

event not later than 10 days following the initial appearance if the

defendant is in custody and no later than 20 days if he is not in

custody, provided, however, that the preliminary examination

shall not be held if the defendant is filed in the district court

before the date set for the preliminary examination. With the

consent of the defendant and upon a showing of good cause,

taking into account the public interest in the prompt disposition

of criminal cases, time limits specified in this subdivision may be

extended one or more times by a federal magistrate. In the

absence of such consent by the defendant, time limits may be

extended by a judge of the United States only upon a showing

that extraordinary circumstances exist and that delay is

indispensable to the interests of justice.

Rule 7.

THE INDICTMENT AND THE INFORMATION

(a) Use of Indictment or Information. An offense which

may be punished by death shall be prosecuted by indictment.

An offense which may be punished by imprisonment for a term

exceeding one year or at hard labor shall be prosecuted by

indictment or, if indictment is waived, it may be prosecuted by

information. Any other offense may be prosecuted by

indictment or by information. An information may be filed

without leave of court.

(b) Waiver of Indictment. An offense which may be

punished by imprisonment for a term exceeding one year or at

hard labor may be prosecuted by information if the defendant,

after he has been advised of the nature of the charge and of his

rights, waives in open court prosecution by indictment.

(1) In General. The indictment or the information

shall be a plain, concise and definite written statement of

the essential facts constituting the offense charged. It shall

be signed by the attorney for the government. It need not

contain a formal commencement, a formal conclusion or

any other matter not necessary to such statement.

Allegations made in one count may be incorporated by

reference in another count. It may be alleged in a single

count that the means by which the defendant committed

the offense are unknown or that he committed it by one

or more specified means. The indictment or information

shall state for each count the official or customary citation

of the statute, rule, regulation or other provision of law

swhich the defendant is alleged therein to have violated.

(2) Criminal Forefeiture. When an offense charged

may result in a criminal forfeiture, the indictment or the

information shall allege the extend of the interest or

property subject to forefeiture.

(3) Harmless Error. Error in the citation or its

omission shall not be ground for dismissal of the

indictment or information or for reversal of a conviction if

the error or omission did not mislead the defendant to his

prejudice.

(d) Surplusage. The court on motion of the defendant

may strike surplusage from the indictment or information.

(e) Amendment of Information. whe court may permit

an information to be amended at any time before verdict or

finding if no additional or different offense is charged and if

substantial rights of the defendant are not prejudiced.

(f) Bill of Particulars. The court may direct the filing of a

bill of particulars. A motion for a bill of particulars may be

made before arraignment or within ten days after arraignment

or at such later time as the court may permit. A bill of

particulars may be amended at any time subject to such

conditions as justice requires.

Rule 11.

PLEAS

(a) Alternatives. A defendant may plead not guilty,

guilty, or nolo contendere. If a defendant refuses to plead or if

a defendant corporation fails to appear, the court shall enter a

plea of not guilty.

(b) Nolo Contendere. A defendant may plead nolo

contendere only with the consent of the court. Such a plea shall

be accepted by the court only after due consideration of the

views of the parties and the interest of the public in the

effective adminstration of justice.

guilty or nolo contendere, the court must address the defendant

personally in open court and inform him or, and determine that

he understands, the following:

(1) the nature of the charge ot which the plea is

offered, the mandatory minimum penalty provided by law,

if any, and the maximum possible penalty provided by

law; and

(2) if the defendant is not represented by an attorney,

that he has the right to be represented by an attorney at

every stage of the proceeding against him and, if necessary,

one will be appointed to represent him: and

(3) that he had the right to plead not guilty or to persist

in that plea if it has already been made, and that he has the

right to be tried by a jury and at that trial has the right to

the assistance of counsel, the right to confront and

cross-examine witnesses against him, and the right not to

be compelled to incriminate himself; and

(4) that if he pleads guilty or nolo contendere there will

not be a further trial of any kind, so that by pleading

guilty or nolo contendere he waives the right to a trial; and

(S) that if he pleads guilty or nolo contendere, the court

may ask him questions about the offense to which he has

pleaded, and if he answers these questions under oath, on

the record, and in the presence of counsel, his answers may

later be used against him in a prosecution for perjury of

false statement.

(d) Insuring That the Plea is Voluntary. The court shall

not accept a plea of guilty or nolo contendere without first, by

addressing the defendant personally in open court, determining

that the plea is voluntary and not the result of force of threats

or of promises apart from a plea agreement. The court shall! also

inquire as to whether the defendant’s willingness to plead guilty

or nolo contendere results from prior discussions between the

attorney for the government and the defendant or his attorney.

(d) Plea Agreement Procedure.

(1) In General. The attorney for the government

and the attorney for the defendant when acting pro se may

engage in discussions with a view toward reaching an

ugreement that, upon the entering of a plea of guilty or

nolo contendere to a charged offense or to a lessor or

related offense, the attorney for the government will do

any of the following:

(A) move tor dismissal or other charges: or

(B) make a recommendation, or agree not to oppose

the detendant’s request, for a particular sentence,

with the understanding that such recommendation or

request shall not be binding upon the court: or

disposition of the case.

The court shall not participate in any such discussions.

(2) Notice of Such Agreement. If a plea agreement

has been reached by the parties, the court shall, on the

record, require the disclosure of the agreement in open

court or. on a showing of good cause, in camera, at the

time the plea is offered. Thereupon the court may accept

or reject the agreement, or may defer its decision as to the

acceptance or rejection until there has been an

opportunity to consider the presentence report.

(3) Acceptance of a Plea Agreement. If the court

accepts the plea agreement, the court shall inform the

defendant that it will embody in the judgment and

sentence the disposition provided for in the plea

agreement.

(4) Rejection of a Plea Agreement. If the court

rejects the plea agreement, the court shall, on the record,

inform the parties of the fact, advise the defendant

personally in open court or, on a showing of good cause, in

camera, that the court is not bound by the plea agreement,

afford the defendant the opportunity to then withdraw his

plea, and advise the defendant that if he persists in his

guilty plea or plea of nolo contendere the disposition of

the case may be less favorable to the defendant than that

contemplated by the plea agreement.

(S) Time of Plea Agreement Procedure. Except for

good cause shown, notification to the court of the

existence of a plea agreement shall be given at the

arraignment or at such other time, prior to trial, as may be

fixed by the court.

(6) Inadmissibility of Pleas, Offers of Pleas, and

Related Statements. Except as otherwise provided in this

paragraph, evidence of a plea of guilty, later withdrawn, or

a plea of nolo contendere, or of an offer to plead guilty or

nolo contendere to the crime charged or any other crime,

or of statements made in connection with, and relevant to,

any of the foregoing pleas or offers, is not admissible in

any civil or criminal proceeding against the person who

made the plea or offer. However, evidence of a statement

made in connection with, and relevant to, a plea of guilty,

later withdrawn, a plea of nolo contendere, or an offer to

plead guilty or nolo contendere to the crime charged or

any other crime, is admissible in a criminal proceeding for

perjury or false statement if the statement was made by

the defendant under oath, on the record, and in the

presence of counsel.

(f) Determining Accuracy of Piea. Notwithstanding the

acceptance of a plea of guilty, the court should not enter a

judgment upon such plea without making such inquiry as shall

satsify it that there is a factual basis for the plea.

(g) Record of Proceedings. A verbatim record of the

proceedings at which the defendant enters a plea shall be made

and, if there is a plea of guilty or nolo contendere, the record

shall include, without limitation, the court’s advice to the

defendant, the inquiry into the voluntariness of the plea

including any plea agreement, and the inquiry into the accuracy

of a guilty plea.

(a)

(b)

Rule 32

SENTENCE AND JUDGMENT

Sentence.

(1) Imposition of Sentence. Sentence shall be imposed

without unreasonable delay. Before imposing sentence the

court shall afford counsel an opportunity to speak on

behalf of the defendant and shall address the defendant

personally and ask him if he wishes to make a statement in

his own behalf and to present any information in

mitigation of punishment. The attorney for the

government shall have an equivalent opportunity to speak

to the court.

(2) Notification of Right to Appeal. After imposing

sentence in a case which has gone to trial on a plea of not

guilty, the court shall advise the defendant of his right to

appeal and of the right of a person who is unable to pay

the cost of an appeal to apply for leave to appeal in forma

pauperis. There shall be no duty on the court to advise the

defendant of any right of appeal after sentence is imposed

following a plea of guilty or nolo contendere. If the

defendant so requests, the clerk of the court shall prepare

and file forthwith a notice of appeal on behalf of the

defendant.

Judgment.

(1) In General. A judgment of conviction shall set forth

the plea, the verdict or findings, and the adjudication and

sentence. If the defendant is found not guilty or for any

(c)

other reason is entitled to be discharged, judgment shall be

entered accordingly. The judgment shal! be signed by the

judge and entered by the clerk.

(2) Criminal Forefeiture. When a verdict contains a

finding of property subject to a criminal forfeiture, the

judgment of criminal forefeiture shall authorize the

Attorney General to seize the interest or property subject

to forfeiture, fixing such terms and conditions as the court

shall deem proper.

Presentence Investigation.

(1) When Made. The probation service of the court shall

make a presentence investigation and report to the court

before the imposition of sentence or the granting of

probation unless, with the permission of the court, the

defendant waives a presentence investigation and report, or

the court finds that there is in the record information

sufficient to enable the meaningful exercise of sentencing

discretion, and the court explains this finding on the

record.

The report shall not be submitted to the court or its

contents disclosed to anyone unless the defendant has

pleaded guilty or nolo contendere or has been found

guilty, except that a judge may, with the written consent

of the defendant, inspect a presentence report at any time.

(2) Report. The report of the presentence investigation

shall contain any prior criminal record of the defendant

and such information about his characteristics, his

financial condition and the circumstances affecting his

behavior as may be helpful in imposing sentence or in

granting probation or in the correctiona! treatment of the

defendant, and such other information as may be required

by the court.

(3)

Disclosure.

(A) Betore imposing sentence the court shall upon

request permit the defendant, or his counsel if he is

so represented, to read the report of the presentence

investigation exclusive of any recommendation as to

sentence. but not to the extent that in the opinion of

the court the report contains diagnostic opinion

which migh seriously disrupt a program of

rehabilitation, sources of information obtained upon

a promise of confidentiality, or any other

information which, if disclosed, might result in harm,

physical or otherwise, to the defendant or other

persons: and the court shall afford the defendant or

his counsel an opportunity to comment thereon and,

at the discretion of the court to introduce testimony

or other information relating to any alleged factual

inaccuracy contained in the presentence report.

(B) If the court is of the view that there is

information in the presentence report which should

not be disclosed under subdivision (c) (3) (A) of this

rule. the court in lieu of making the report or part

thereof available shall state orally or in writing a

summary of the factual information contained

therein to be relied on in determining sentence, and

shall give the defendant or his counsel an opportunity

to comment thereon. The statement may be made to

the parties in camera.

counsel shall also be disclosed to the attorney for the

government.

(D) Any copies of the presentence investigation

report made available to the defendant or his counsel

and the attorney for the government shall be returned

to the probation officer immediately following the

§3

imposition of sentence or the granting of probation,

unless the court, in its discretion otherwise directs.

(E) The reports of studies and recommendations

contained therein made by the Director of the Bureau

of Prisons or the Youth Correction Division of the

Board of Parole pursuant to 18 U.S.C. Sec 4208(B),

4252, 5010(e), or 5034 shall be considered a

presentence investigation within the meaning of

subdivision (c) (3) of this rule.

(d) Withdrawal of Plea of Guilty. A motion to withdraw

a plea of guilty or nolo contendere may be made only before

sentence is imposed or imposition of sentence is suspended: but

to correct manifest injustice the court after sentence may set

aside the judgment of conviction and permit the defendant to

withdraw his plea.

(e) Probation. After conviction of an offense not

punishable by death or by life imprisonment, the defendant

may be placed on probation if permitted by law.

(f) Revocation of Probation. The court shall not revoke

probation except after a hearing at which the defendant shall be

present and apprised of the grounds on which such action is

proposed. The defendant may be admitted to bail pending such

hearing.

APPENDIX D—- DOCUMENTS FROM THE RECORD

RELATING TO THE SERVICE OF THE

PETITION TO REVOKE, THE EFFECTS

THEREOF, DENIAL OF ALL BAIL, AND

THE REQUEST FOR A STAY OF THE

PROCEEDINGS

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF ALASKA

UNITED STATES OF AMERICA )

v. ) No. A-115-73 Cr.

GEORGE LUSTIG

To U. S. Marshal or any other authorized officer

You are hereby commanded to arrest George Lustig and

bring him forthwith before the United States District Court for

the District of Alaska in the city of Anchorage to answer to

charges that he has violated the conditions of probation

imposed by the United States District Court for the District of

Alaska on May 3, 1974. Bail set $100,000.00 cash or corporate

surety.

J. M. KRONINGER Clerk

By /s/ Mary Keeney

Deputy Clerk

Date March 15, 1976

RETURN

District of Alaska Received the within warrant the 1 Sth day

of March 1976 and executed same, by the arrest of George

Harry LUSTIG.

ROBERT D. OLSON SR..,

US MARCHAL

By /s/ John A. McKay

Deputy US Marshal

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff, ) Crim. No. A-115-73

‘x MOTION TO HOLD

» DEFENDANT WITHOUT

) BAIL PENDING

) HEARING ON

REVOCATION OF

PROBATION

COMES NOW the United States of America, by G. Kent

Edwards, United States Attorney for the District of Alaska, and

moves this Honorable Court that the defendant GEORGE

LUSTIG be held without bail pending hearing on revocation of

probation. This motion is based on the reasons set forth in the

GEORGE LUSTIG,

Defendant.

attached memorandum.

DATED this 2nd day of April, 1976, at Anchorage, Alaska.

/s/ G. Kent Edwards

United States Attorney

ORDER

For the reasons set forth in the government’s memorandum

in support of motion to hold defendant without bail pending

hearing on revocation of probation, as well as those previously

noted by the Court in its bail review check list filed March 26,

1976,

IT IS HEREBY ORDERED that George Lustig be held

without bond pending hearing on the petition to revoke his

probation in Cause No. A-1 15-73 Criminal.

DATED this 2nd day of April, 1976, at Anchorage, Alaska.

/s/ Raymond E, Plummer

U.S. District Court Judge

ORDER

It is hereby ordered that the Order entered on March 16,

1976 setting bail in this case in the amount of $50,000.00 cash

or corporate surety, is hereby vacated and set aside and it is

now and hereby ordered that the defendant be held without

bail pending the final hearing on the government's petition for

revocation of probation.

Court adjourned at 4:40 p.m.

ce: U.S, Attorney

U. S. Marshal

U. S. Probation Officer

Kermit E. Barker

MINUTES OF

THE UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

UNITED STATES OF AMERICA, v. GEORGE LUSTIG

No. A-115-73 CR

THE HONORABLE RAYMOND E. PLUMMER, U.S.

DISTRICT JUDGE

Deputy Clerk Reporter

X Jim Meyers Dolores Runner

Jeri Whitaker X Mary Krogstad

Jan Nelson Sandra Shorey

APPEARANCES: Plaintiff: U. S. Attorney G. Kent Edwards.

Defendant: Present in custody represented by William H.

Fuld (Retn’d)

At 11:03 A.M. Court convened:

PROCEEDINGS: HEARING ON BAIL REVIEW AND TO

DETERMINE STATUS OF DEFENDANT’S LEGAL

REPRESENTATION

Counsel for the Government objected to further bail hearing

for this defendant. Argument of counsel heard.

The Court ruled a bail review hearing to be held at this time.

Statement of counsel for defendant Lustig heard.

Defendant George Harry Lustig called, sworn and testified on

own behalf.

Statement of counsel for the Government heard.

The court denied motion for reduction of bail.

Court’s exhibit | admitted.

Bail Review Check List completed by the Court and ordered

filed.

Counsel for the Government moved that Order Specifying

Methods and conditions of Release be amended.

Arguments of counsel heard.

M.O.

In addition to terms and conditions, heretofore imposed

by the Court in lieu of committing Mr. Lustig after

conviction without bail, it is ordered that Mr. Lustig is

restrained and enjoined from transferring, conveying, or

otherwise encumbering his personal or mixed property

without written permission of this Court until the pending

petition for revocation of Probation has been heard and

determined; provided however, with the written approval

of the Court the assets of the defendant above mentioned

may be pledged or otherwise encumbered to guarantee the

payment of attorney fees or costs or expenses that may be

encurred in preparation of defendant’s case in an amount

to be approved by the Court in writing.

Statement of counsel heard re hearing on petition for

revocation of probation.

Statement of Robert H. Wagstaff, an attorney who was in the

audience, re counsel for defendant. Mr. Wagstaff asked by the

Court to report no later than Monday morning, April 29, 1976

re progress being made in obtaining counsel for Mr. Lustig,

Hearing on petition for revocation of probation to be held

Friday, April 2. 1976 at 10:30 A.M. as previously set by the

Court’s written order of March 25, 1976.

At 12:57 P.M. court adjourned.

Initials

/s/ J. M.

Deputy Clerk

DATE: March 26, 1976

ce: U.S. Attorney G. Kent Edwards

William H. Fuld, Esq.

Mr. Phillip P: Weidner

900 West Fifth Avenue

Anchorage, Alaska 99501

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff, ) Cause No. A-115-73 Cr.

-_— AFFIDAVIT IN SUPPORT

GEORGE LUSTIG, et al., ) OF MOTION FOR

Defendants, ) MODIFICATION OR

) MOTION TO SET BAIL

STATE OF ALASKA ba

THIRD JUDICIAL DISTRICT )

COMES NOW the affiant, PHILLIP P. WEIDNER, and first

being duly sworn, deposes and says:

1. 1 am the attorney of record for Mr. George Lustig in the

tiral of this matter.

2. As reflected by the attached affidavit of motion for

continuance, Mr. Lustig has been experiencing considerable

difficulties in obtaining counsel of his choice, and further, |

have had only minimal opportunity to conduct pre-trial

investigations in these proceedings.

3. Due to the state of the correctional facilities at 6th

Avenue and C Street, Anchorage, Alaska, it is often difficult or

impossible to conduct private communications with clients

without substantial waiting periods (half an hour to an hour and

one-half).

4, Due to the current facilities it is often necessary to wait

substantial periods before even seeing clients.

5. There is currently filed in the state courts, a class action

Suit against those officials charged with maintaining the

facilities at 6th Avenue and C Street.

6. One of the causes of action in the said suit is the

allegation that the current facilities, and the current practices

with regard to phone calls and messages, violate pre-trial

detainees’ right to effective assistance of counsel of choice.

7. After speaking with Mr. Lustig it appears that it will be

necessary to his constitutional rights to call witnesses

constitutional rights to confrontation and cross-examination,

and constitutional rights to effective assistance of counsel, that

numerous witnesses be contacted and interviewed by the

defense.

8. A number of the aforementioned witnesses live in rural

portions of Alaska, such that their location will be difficult, if

not impossible, to determine on short notice, unless Mr. Lustig

was free to assist myself or my defense investigator in locating

said witnesses.

9. It appears necessary to effective assistance of counsel

for Mr. Lustig to accompany me to view the scene of some of

the alleged transactions in the instant proceedings, and for Mr.

Lustig to accompany me to view the scene of the arrest in the

instant proceeding.

10. Due to the nature of the charges, and the complexity in

the instant proceeding, it appears necessary for reasonable

effective assistance of counsel for me to conduct lengthy

personal discussions with the defendant during the course of

these proceedings.

11. The current facilities at 6th Avenue and C Street now

have a curfew of 10:00 p.m. with regard to attorney visits.

12. There are three co-defendants in the instant case, and to

my knowledge, at least one of the co-defendants, Gregory

Pederson, is lodged at the 6th Avenue and C Street facility, such

that both Mr. Pederson’s counsel and myself will be competing

for the only holding cell that has been nominated a conference

room in the correctional facilities at 6th Avenue and C Street.

13. Due to physical structure at the facilities at 6th Avenue

and C Street, there is a substantial likelihood that should I be

forced to conduct confidential communications with my client

during the course of these proceedings at the facility, that

passing guards, prisoners, co-defendants, co-defense counsel,

agents of the federal and state governments (Troopers, City

Policemen, federal marshals) may overhear portions of my

conversations in the hall at 6th Avenue and C Street.

FURTHER AFFIANT SAYETH NAUGHT.

DATED at Anchorage, Alaska, this 23rd day of April, 1976.

/s/ Phillip P. Weidner

SUBSCRIBED AND SWORN to before me this 23rd day of

April, 1976.

/s/ Faye P. Methew

Notary Public in and for Alaska

My commission expires 6/25/78

PHILLIP P. WEIDNER

Attorney at Law

900 West Fifth Avenue

Anchorage, Alaska 99501

(907) 276-7000

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff, )

, )

GEORGE LUSTIG, )

Defendant. '

No. A-115-73 Cr.

MOTION FOR STAY OF PROBATION

REVOCATION AND MOTION

FOR ADMISSION TO BAIL

COMES NOW the defendant, George Lustig, by and through

his attorney, Phillip P. Weidner, and hereby moves this Court

pursuant to Criminal Rule 32(f), to stay the instant petition to

revoke probation, and to continue the hearing on said petition

until after the disposition of the defendant’s motion for bail

pending appeal in cause No. A-76-51 Cr., and if said bail is

granted, until after said appeal.

Further, the cfendant respectifully requests this Court to set

bail in a reasonable amount pending said revocation, said

amount to be satisfied by a property bond to be posted by the

defendant.

This motion is made on the grounds that as reflected by the

attached exhibit, and by the evidence to be presented in open

court, it is imperative to the defendant that he be allowed to

consult with his attorney of record in cause No. 76-3408 Civil

6.”

in the Superior Court for the State of Alaska in which his

“putative” wife, Callie Newton is suing him for half of his real

property. Thus it is imperative that the defendant be admitted

to bail pending the disposition of his appeal before the Ninth

Circuit in cause No. A-76-51 Cr. Further, the instant petition to

revoke probation is bottomed on evidence and/or a conviction

which it is the position of the defendant Lustig was

unconstitutionally obtained.

Thus, should this Court deny defendant’s motion for a

continuance and bail, any time spent incarcerated between now

and the disposition of said appeal, would constitute irreparable

harm and injury to the defendant should he be successful in said

appeal.

Further, it is the position of the defendant Lustig that should

he be successful in said appeal, he has not made a final decision

as to whether to waive his Fifth Amendment rights and take the

stand in any retrial. Moreover, it is the position of the

defendant Lustig that the instant conviction (in cause No.

A-115-73) was the product of a purported plea of guilty

obtained through threats of the United States government to

punish for contempt the government witness purporting to be a

friend of defendant Lustig. Further, the defendant Lustig

wishes to present evidence as to the nature of said threats, and

the resulting invalidity of the plea of guilty so as to constitute a

manifest injustice pursuant to Criminal Rule 32(d). Thus, the

defendant respectfully requests this Court to continue the

instant probation revocation hearing until after his appeal, such

that he is not forced to waive his Fifth Amendment privileges in

a retrial in A-76-51 Cr. by taking the stand in the instant case.

Further, should this Court deny the defendant’s motion to

continue and in fact revoke probation, the effect of said

revocation would be to have the defendant transported out of

the state such as to make it impossible for him to consult with

his counsel in A-76-51 Cr. relative to perfecting the appeal in

said proceedings.

Thus, for the foregoing reasons the defendant respectfully

requests this Court to stay the instant probation revocation here

and permit him a reasonable property bond pending the

disposition of the appeal in A-76-51 Cr. such that he may enjoy

his right to due process and counsel both as to the current civil

suit in the Superior Court for the State of Alaska relative to his

assets, and his current appeal before the Ninth Circuit in

A-76-51 Cr. Further, the defendant respectfully requests the

Court to take such action in order that he may fully explain to

the Court the circumstances in which the original plea in the

instant proceeding was entered and fully explain to the Court

the circumstances surrounding the alleged activity leading to the

instant revocation, without waiving his Fifth Amendment

privileges in A-76-51 Cr. on any retrial.

Respectfully submitted at Anchorage, Alaska, this 30th day

of August, 1976.

/s/ Phillip P. Weidner

Attorney at Law

PHILLIP P. WEIDNER

Attorney at Law

900 West Fifth Avenue

Anchorage, Alaska 99501

(907) 276-7000

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff, )

, )

GEORGE LUSTIG, )

Defendant.

No. A-115-73 Cr. No. A-115-73 Cr.

NOTICE OF OBJECTION TO UNCONSTITUTIONAL

EVIDENCE AND UNCONSTITUTIONALLY

OBTAINED CONVICTION

COMES NOW the defendant, George H. Lustig, by and

through his attorney, Phillip P. Weidner, and hereby gives notice

that he objects to the use in any pending probation revocation

of any unconstitutionally obtained evidence, and any

unconstitutionally obtained convictions. Further, the defendant

respectfully directs this Court to his pre-trial motions and

written motions for mistrial and defendant’s motion for a new

trial, in cause No. A-76-51 Cr. in which he lists numerous

substantial points on appeal in said proceeding both as to the

illegality of the evidence, the illegality of the manner in which

the conviction was obtained, and the illegality of the present

classification of cocaine.

Respectfully submitted at Anchorage, Alaska, this 30th day

of August, 1976.

/s/ Phillip P. Weidner

Attorney for Defendant

APPENDIX E— RELEVANT PORTIONS OF TRANSCRIPT

AS TO DOUBLE JEOPARDY, INVALIDITY

OF INITIAL PLEA, AND MOTION FOR

STAY TO WITHDRAW PLEA AND

EXPLAIN STATEMENTS

CONCLUSION OF SENTENCING REMARKS OF USS.

ATTORNEY BEFORE JUDGE VON DER HEYDT IN CAUSE

NO. A76-51 Cr. (U.S. DISTRICT COURT, ALASKA) (C.A. 9th

NO. 76-2661) ON JULY 9, 1976

“We submit therefore, your Honor, he is deserving of the

severest sentence as contemplated by Congress. We anticipate

that the defendant will assert in regard to the sentencing

considerations, they will say, “Your Honor, after all, he will

probable get five years from Judge Plummer on his probation

violation, so subtract that from whatever you are thinking

about and keep that in mind.’

Well, in that regard, we would say, first of all, that no one

knows at this point in time what Judge Plummer will or will not

do. Secondly, we feel that this case does warrant its own

separate time, irrespective, in addition to whatever might be

given him by Judge Plummer in that case. And we believe

sincerely, your Honor, and strongly, that this case does warrant

the imposition of the maximum sentence on each count in view

of the disdain, the disregard and repetitive nature of this man’s

conduct, the [sic.] intellectual nartyr who urges others to

violate our drug laws. And, your Honor, because of his

following, because of his status among those who think that

they are above the law, we do recommend that in order to have

the maximum on each count, we recommend that the Court

make a portion, your Honor, a portion of one count

consecutive to the others so that we would have at least a

20-year sentence, because, your Honor, we feel that his conduct

is despicable and it is too persistent illegal conduct to condone

and rule otherwise.

Thank you. [Tr. of July 9, 1976, at 17, 19] {Case No.

A76-51 Cr., U.S. District Court, Alaska: C.A. 9th 76-2661 ]

PORTIONS OF SENTENCING REMARKS BY USS.

ATTORNEY AND DEFENSE COUNSEL BEFORE JUDGE

PLUMMER IN CAUSE NO. A-115-73 Cr. (U.S. DISTRICT

COURT, ALASKA) (C.A. 9th NO. 76-3146) ON SEPTEMBER

15. 1976

“MR. WEIDNER:

Just summing up on the consecutive sentence issue as to the

legality, again it would be our position that trying to impose a

consecutive sentence now increases the severity of the

punishment, that if the United States wanted consecutive time

the vehicle was through Judge von der Heydt. Mr. Edwards

indicates that he specifically asked Judge von der Heydt not to

consider the time. He didn’t specifically ask him not to impose

consecutive sentences. And there is a distinction. | do have a

recollection of Mr. Edwards arguing to Judge von der Heydt he

shouldn’t consider the time Your Honor is going to impose. |

took that to mean, and I think Judge von der Heydt took it to

mean if he ran it consecutively he shouldn’t consider the time,

and he made almost the identical argument that he has made to

Your Honor today, that there should be separate sentences, the

implication being that Judge von der Heydt should have given

him whatever time he wanted and ran it consecutively if he

decided to.

MR. EDWARDS: I object to that, Your Honor, it’s not true.

It’s not the record. It’s specifically clear in terms of my

assertions to the court that I did not want him in any way to

take away from this court the ability to decide what sentence

should be imposed, and nothing was said by Judge von der

Heydt and I urge the court if it has any questions on this to

confer with Judge von der Heydt. I think that defense counsel is

improperly representing the record.

MR. WEIDNER: There is a record and Your Honor can

certain review it. The point is that Judge von der Heydt did not

impose consecutive time and I submit he is the man who had

the jurisdiction to do so. If Mr. Edwards wants to indicate in

the record where he specifically asked him not to impose

consecutive time he can do so. But I submit it’s not there and I

think he was vague about any mention of what he meant by not

considering it. I certainly interpreted it during the sentencing to

mean that he should go ahead and give him separate time and

the option was open for consecutive time.

Incidentally, Your Honor, there is an Alaska Supreme Court

case adopting the general rule which is a good rule that you

can’t increase the severity of a sentence once it is imposed.”

{[Tr. of September 15, 1976, at Page 24, 25] [Case No.

A-115-73 Cr., U.S. District Court, Alaska; C.A. 9th 76-3146]

“Now directing my attention, first of all, to the question of

consecutive time, it would be our position that consecutive time

can’t be imposed under the double jeopardy clause of the

United States Constitution and of course the Alaska

Constitution as it applies to Mr. Lustig. 1 have done some

research in the area and I have not found cases directly in point.

I have found a case that indicates quite clearly that any

increasing of a sentence once imposed, particularly in a

probation situation, is double jeopardy, and it is a Ninth Circuit

case. | would like permission of the court to file it with Your

Honor at this time. I have served Mr. Edwards with a copy of it.

THE COURT: You may do that.

MR. WEIDNER: Also I have one of the latest cases on

probation, from the Third Circuit.

THE COURT: They may be handed to the court.

MR. WEIDNER: If I might just briefly address myself to our

position as to the legality of any contemplated consecutive

time. First of all. Your Honor’s finding for your jurisdiction

today is | think quite property that jurisdiction would lie under

IS United States Code 3653. That provision specifically

provides and if | might read directly from it — it’s dealing of

course with a revocation of probation and says at the bottom of

the section. ‘Thereupon the court may revoke the probation

and require him to serve the sentence imposed or any lesser

sentence and if imposition of sentence was suspended may

impose any sentence which might originally have been

imposed. ’

It would be our position that first of all the statute

specifically says “thereupon,” that there is no mechanism by

which a provision may be made that a sentence could be

imposed after a certain amount of time. It also clearly draws a

distinction between a suspended imposition of sentence and a

suspended execution of sentence. As Your Honor well knows,

since you were the sentencing judge and the judgment is quite

precise in its aspects, this was a suspended execution of

sentence.

| would submit that Your Honor cannot increase the severity

by providing that it would consecutively with the new

conviction.

Now with regard to authorities for the proposition providing

for sentences to run consecutively as opposed to concurrently is

an increase in severity, | would cite Borum v, United States, 409

F.2d 433. A Ninth Circuit case, a 1967 case. In that situation,

Your Honor, the sentencing judge was sentencing on two counts

of a contemporaneous conviction. There was no specificity as to

consecutive time. The man was resentenced and the court held

that increased the severity. So I think Your Honor actually does

not have jurisdiction to Impose consecutive time under the

double jeopardy provision.

I might point this out to the court. The question as to

whether to enter upon probation is of course discretionary with

the court, but it’s also discretionary, I believe, with a defendant.

That is, they can refuse probation and isist (sic.) they be given

time and start serving the sentence. Mr. Lustig has been on

probation for two years. | am quite aware of the case authority

that he doesn’t necessarily have a right to credit for time on

probation but I think that also means that when he made the

decision to accept that probation in 1974 he did not

contemplate that Your Honor would run any revocation

consecutive to any further trouble he might have been in. The

decision for any consecutive time lay with Judge von der Heydt.

Mr. Edwards indicates that Judge von der Heydt somehow

didn’t know or didn’t consider this. Jf Your Honor will examine

Judge von der Heydt’s not only his sentencing remarks but his

questioning of me in my argument, he specifically referred to

this conviction. He specifically indicated he felt there was

difference between Mr. Lustig and the Petersons (sic.) precisely

because of the instant conviction, that is, the one Your Honor is

now sentencing him on. /t was a fact in that sentencing he had

the authority to run the time consecutively and he chose not to

do so. So I think the man has been subject to double jeopardy

in the instant case when your Honor first entered judgment and

he has suffered jeopardy in A76-51 before Judge von der Heydt.

And for the U.S, Attorney to ask today for consecutive time is

simply urging Your Honor to do something that would’t be

valid under the Constitution. (Tr. 9/15/76 at 21-24 Case No. A

115-73 Cr.) (Emphasis added)

REMARKS RELATING TO DESIRE FOR STAY TO

EXPLAIN STATEMENTS AND TO WITHDRAW PLEA

HEARING ON PETITION TO REVOKE PROBATION

8/31/76

“MR. WEIDNER: Your Honor, there is one other portion of

my written motion for the stay that I didn’t address myself to

just briefly —

THE COURT: Very briefly, please.

MR. WEIDNER: Very well. Rule 32 provides that the court

can set aside a plea if there is manifest injustice. I suspect, well,

] know that Mr. Lustig may wish to take the stand to explain to

Your Honor all the circumstances surrounding his initial entry

of plea, This ties into the Fifth Amendment problem.

THE COURT: Mr. Weidner, which original entry of plea?

MR. WEIDNER: The guilty plea before Your Honor in

A-1 15-73.

THE COURT: We went into the full circumstances of that

and at one hearing Mr. Lustig wanted to equivocate and give

lectures and things like that, so I refused to accept the plea.

Later he changed attorneys and came in and wanted a further

hearing. We had at least two hearings. I know all the ins and

outs of that so we needn’t rehash that again.

MR. WEIDNER: Very well. That is a part of the reason that

we requested a stay. I wanted to let him have an opportunity,

should he feel there is any further explanation necessary to

explain why that plea was entered.

THE COURT: He had two opportunities to explain it. If he

wanted to give me some after the fact stuff as to why he did it

I, of course, would give greater credence to what he is telling me

now. We won't go into that. We will go into, I have already

ruled that I am going to stand on my previous rulings as to bail.

Specifically, the court’s orders of March 26 and April 2, 1976,

are again reaffirmed.” (Tr. of 8/31/76 at 40, 41).

SENTENCING ON PROBATION REVOCATION 9/15/76

“In regard to my prior convictions I think you are aware of

the situation I was in with regard to (Trod Runnion) where he

had been granted immunity. He had refused to testify on the

stand and he was facing 18 months, he had already been put in

jail and he was facing an 18 unless I would agree to plead guilty

and pay a $10,000 fine, and I was put in a position of either

this man goes to jail whether I was guilty or not was not the

issue, and if I plead guilty he would be released from jail, which

he was and there would be no charges against him and I would

be given probation, I was more or less put into an ethical bind

there, | mean I couldn’t very well let this man go to jail if I

could get off and pay a $10,000 fine. I think any man with

integrity is going to make a guilty plea in that kind of situation.

I think that whole thing is a matter of record.” (Tr. of 9/15/76

at 40, 41). [Emphasis added]

HEARING ON PETITION TO REVOKE PROBATION

8/31/76

“THE COURT: First of all are you going to offer -vidence in

the present matter?

MR. WEIDNER: / wanted to explain to Your Honor our

exact position with regard to evidence which is entwined with

the motion for the stay.

THE COURT: Weil, explain that to me first.

MR. WEIDNER: Certainly. The problem is, Your Honor, and

we don’t dispute that that transcript is correct. Mr. Lustig did

testify in A76-51, and I think those questions are accurate. |

haven’t reviewed the whole transcript so I don’t know if the

entire transcript is correct.

The problem is, Your Honor, Mr. Lustig does wish to explain

to Your Honor precisely what circumstances lead to his being

indicted and tried in A76-51, and what circumstances lead to

these officers making a search. Vow he can’t do that without

waiving any Fifth Amendment privileges he may have on a

retrial. We do have an appeal pending before the Ninth Circuit.

(Pp. 5)

I think we have an excellent chance of prevailing on appeal.

(Pp. 5)

So we are in a position that Mr. Lustig does wish to take the

stand and explain to Your Honor why he was charged in that

case and also why he is before the court on a petition to revoke

probation. He can’t do that without totally waiving his Fifth

Amendment rights on retrial. (Pp. 6)

We do wish to put on evidence but we are in a position that

we can’t put on evidence without gaining a final disposition on

the appeal. (Pp. 6)

1 would ask Your Honor to consider the motion for stay and

the motion for admission to bail prior to literally forcing us to

put on a case today. Jf we do, again, Mr. Lustig would have to

waive his Fifth Amendment privileges. I think that’s a very

important point. (Pp. 7)

Thank you.” (Tr. of 8/31/76; Pages 4-7) [Emphasis added]

“MR. WEIDNER: Your Honor, with regard to that —

THE COURT: Just answer my question now. Does he wish to

take the stand.

MR. WEIDNER: /t is my understanding that he does not

waive his Fifth Amendment rights.

THE COURT: I am only asking if he wants to take the stand

and testify in terms of finding whether there is a probation

violation or not.

MR. WEIDNER: J have consulted with my client and he

advises me he does not want to take the stand.

THE COURT: Weill, | want to know so that Mr. Lustig

doesn’t later say you did that over his objection and contrary to

some deep-seated conviction and he felt differently.

Do you concur in that statement by your attorney that you

do not wish to testify at this hearing?

MR. LUSTIG: / am acceding to his advice, sir.

THE COURT: That isn’t what I asked you. Do you waive

your right to testify?

MR. LUSTIG: / would like to make a statement.

THE COURT: You can testify. You can be called as a

witness, if that is what you wish to do.

MR. LUSTIG: / am not aware of the way it might affect my

appeal or the legal remifications.

THE COURT: In your ex parte showing you said you wanted

to testify, except that you didn’t want to testify last April

because then that would violate your Fifth Amendment rights,

but you have testified now in Judge von der Heydt’s court so

you don’t have that excuse now, or that ground, excuse me. So

I am asking you now if you want to comply with your affidavit

you made on April 2 of this year and testify at this hearing.

Either yes or no.

MR. WEIDNER: Your Honor —

THE COURT: I am addressing the defendant. | know what

you have stated. You are on the record.

MR. LUSTIG: / don’t feel I can give a yes or no answer

without qualification. It’s just not a question I feel I can answer

that way.

THE COURT: Do you wish to be sworn and testify?

MR, LUSTIG: My attorney advises me not to.

THE COURT: You retained your attorney, did you not?

MR. LUSTIG: Yes.

THE COURT: Very well.

MR. EDWARDS: May I ask, Your Honor, | gather he is

desirous of following the advice of his attorney at this time?

THE COURT: It’s evident that’s what he has done.

MR. EDWARDS: May that specific question be posed to him

so he can respond to that question.

THE COURT: Do you elect to follow the advice of your

counsel? Yes or no?

MR. LUSTIG: Yes. Now that i have answered yes or no

could I make one comment?

THE COURT: / don’t think it will be necessary. Decision will

be reserved. Court will stand in recess until the call of the

gavel.” (Tr. of 8/31/76 at 45-47) [Emphasis added]

PORTIONS OF TRANSCRIPT RELATING TO VALIDITY OF

INITIAL PLEA

INITIAL PLEA OF 5/4/72 to 21 U.S.C. 176(a)

“Q. Was the plea of guilty which you entered a moment ago

to Count II made voluntarily by you and of your own free will?

A. It was a moral conviction, Your Honor.

Q. Js it voluntary and of your own free will?

A. Jt is my moral conviction so I guess it is, sir.

Q. Well, I’m not concerned with moral or religious

convictions. The court has to be satisfied as | read to you from

the law that the plea is made voluntarily, with understanding of

the nature of the charge and the consequences of the plea. (Pp.

Q. Well, was your plea of guilty today influenced by threats

that were made to people other than yourself?

A. Not to me.

Q. Do you contend then that threats have been made to

other persons and that is influencing you in pleading guilty?

A. The way I see it is another man will go to jail unless I do.

THE COURT: Mr. Page, I don’t see how I can accept a plea

of guilty.

MR. PAGE: Neither do I, your Honor. (Pp. 5-6)

THE DEFENDANT: / am bound to answer truthfully and

that is what I am doing.

THE COURT: Weill, we will go through the rest of the

routine then, (Pp. 6)

Q. Is your plea of guilty today the result of any threats or

pressures by anyone, jailers, inmates, FBI, police, Customs

agents, members of your family, friends, or anyone else?

A. No. I personally have not been threatened.

Q. Has your plea of guilty today been induced or in any way

influenced by fear for yourself, family, lover, anyone; or to

protect family, lover, or anyone; or to aid others in connection

with crime?

A. Your Honor, I’m really having a hard time making a

distinction between formality and truth here. (Pp. 14)

Q. Now, I think my last question was: Was your plea of guilty

induced or influenced in any manner by fear or concern for

yourself, your family, relatives, anyone else, or to protect your

fumily, your wife, or anyone else, or to aid others in connection

with crime?

A. No one has overtly approached me from this standpoint

but | know in my mind there is a practical reality what is

involved here but no one has tried to coerce me overtly. (Pp.

16)

Q. In what manner, if any, has this influenced or induced you

to plead quilty?

A. | know that as a moral righteous person this is what I have

to do and no one has tried to influence me.

THE COURT: Mr. Page?

MR. PAGE: Your Honor, I suspect that Mr. Lustig’s

reservations which are not clearly stated on this record, are

based on the fact that Trod Runyon, the recalcitrant witness,

has been sent to jail for civil contempt for failing to answer

questions. And | suspect that Mr. Lustig is at this time referring

to the fact that Mr. Runyon is in jail and I would like to explore

or permit counsel to question him_as to whether he realizes how

little control and that the fact of this plea here won't have any

impact on Mr. Runyon’s future. Perhaps the court can ascertain

on the record whether this is the nature of his apparent

hesitance. (Pp. 16)

Q. Now, it is also true that you are personally acquainted

with Trod Runyon, who is now in jail for civil contempt?

A. True.

Q. Now, has anybody at any time ever represented to you as

a fact that your decision to plead guilty would have any effect

on Mr. Runyon’s fate?

A. No.

Q. Do you have any objective reason by way of anybody

else’s telling you so, anybody else with the authority to do so

having told you that your decision would somehow be

intermingled with Mr. Runyon’s fate in this matter?

A. I know that the reason Mr. Runyon is in there is because

of this situation, and I know that in order to resolve this

situation I know what I have to do. (Pp. 18)

Now, what has prompted you to change your mind to now

plead guilty after having three times made the other choice?

A. On the other occasions I believe that I was the only one

that had to stand the consequences. Now this situation is

different.

Q. In other words, I would interpret that that you are

pleading guilty today thinking that you will suffer the

consequences and that perhaps Mr. Runyon and Mr. Green will

be spared that; is that correct? (Pp. 22

MR. PAGE: Your Honor, I would like to ask him a couple of

questions concerning this thing of Mr. Runyon.

THE COURT: You may.

BY MR. PAGE:

Q. Mr. Lustig, you witnessed all of the transactions in which

Trod Runyon was involved in this court during the course of

this trial, didn’t you?

A. That’s correct.

Q. You heard all of the law read to him from the bench

concerning civil contempt, criminal contempt and all of that,

did you not?

A. That’s correct.

Q. Do you have any belief that you will have any legal

control over his destiny by virtue of whether or not you plead

guuty’

A. | have to say that I know as a personal reality that this is

the case. | know that Mr. Watson wrote a letter to his probation

officer saving to sock it to him because he didn't cooperate the

last time.” (Pp. 25) [Emphasis added] (Tr. of 5/4/72)

ATTEMPTED ENTRY OF PLEA TO 18 U.S.C. 545

INFORMATION (REJECTED)

MR. PAGE:

“41 the time the plea was negotiated the government agreed

tu make a recommendation of term of five years imprisonment

to be suspended on conditions of probation and a fine of

$10,000.00 on the understanding that Mr. Lustig could in fact

pay such a fine.

Since that agreement was made the United States Supreme

Court in the case of Bradley v. United States has ruled that any

sentence under Section 176(a) must be in accordance with the

legislation requiring a mandatory minimum of five years. /n

other words, the Bradley case will not permit this court to

follow the recommendation which the government agreed to

make. (Pp. 2)

If in fact Mr. Lustig sees fit to proceed as I have outlined, Mr.

Rubinstein will, after plea and sentence, move the court to

permit Mr, Lustig to withdraw his plea of guilty to the former

charge and the government will not oppose that and will move

to dismiss it. (Pp. 3)

MR. RUBINSTEIN:

And the reason for these proceedings essentially is so that Mr.

Lustig could get the benefit of the original promise which Mr.

Page made to him and which the court has indicated it would go

along with.” (Tr. of 6/21/73 at 2, 3, 8) (Pp. 18) [Emphasis

added] ;

“THE COURT: So if you want to sign it and proceed by

information, sign it voluntarily, you may do so and if not, why

then the only recourse or alternative — the court has no

alternative, we will go ahead and sentence you on your plea of

guilty to Count II of the indictment, I guess.

THE DEFENDANT: Of the other indictment;

THE COURT: Yes. This is an information, this isn’t an

indictment.

MR. RUBINSTEIN: The record may reflect that Mr. Lustig

has signed the waiver of indictmient. (Pp. 14)

Q. Unless your plea is knowingly, understandingly, freely,

voluntarily and intelligently made and unequivocal, | cannot

accept it and in that event | suppose we proceed to sentence

you on your previous plea, on the indictment where there is a

mandatory sentence required. In other words I just can’t accept

a plea that is equivocal or evasive or conditional.

A. Your Honor, when I answered the questions before |

wasn’t being equivocal or evasive. / made a distinction between

the actual truth of the situation and what is required by the

formality of the questions and answers and that doesn’t change

now. I'll give the right answers.

Q. No, this isn’t a game. | explained that to you the other

time when you were here back on May 4th, I believe it was,

1973. (Pp. 17)

Q. Were threats, promises of leniency or promises of any

nature made to you to induce or persuade you to plead guilty”

A. Well, I think that could be one of those sticky questions.

Q. One of those what?

A. Sticky questions that involves a distinction between

formality and the objective reality of what happened.

Q. Were any threats made to induce or persuade you to

plead guilty’

A. Well, none other than that Runyan was in jail and that he

had the chance of getting criminal contempt for a year and a

half. (Pp. 19)

A. I was faced with the choice of him getting a criminal

contempt charge or pleading guilty and paying the fine. (Pp. 19)

A. Well. no. This was the actual situation. He was in jail. |

was advised by two different lawyers that he was possibily liable

for criminal contempt which carries a sentence up to 18 months

and this was the whole implication of the thing. It was

something that was being held over me. | went aiong with it and

I'm still going along with it. I’m just answering your questions

truthful about the thing. (Pp. 20)

A. I want you to understand that I’m not trying to mess up

the proceedings or cloud the record.

Q. No. Pm not saying you are messing up the proceedings

and I don’t like you using those expressions, this is no

proceeding, this is determining whether your plea is made freely,

voluntarily and as required by law. /t is immaterial to me

whether I sentence you on this or sentence you on the other

one.

What is the reason or your motive for your plea of guilty

today?

A. Today? Because now the situation is changed from one of

which I was to plead guilty — I’m talking about a year ago —

plead guilty, pay $10,000 or it would be prosecution of

Runyon on a contempt charge. .. (Pp. 20)

A. Now the situation is changed to one of which I either go

to jail for five years under — [ mean, it is a different set of

circumstances now. It’s a different ball game. / go to jail for five

years or I plead guilty to this. And again | say I’m not saying

that | am not guilty of the charge that is on the paper. /f’s a

whole different situation. (Pp. 21)

THE COURT: The court is not going to accept the plea. 1am

not going to equivocate and argue with the defendant and

engage in a battle of semantics so the plea will not be accepted.

Are you prepared to proceed with the imposition of sentence

in the matter entitled United States of America versus Geurge

Lustig, No, A-79-69. criminal?

THE DEFENDANT: Your Honor, | want to give you the

right —

THE COURT: No, J don’t want to hear any more from you. I

gave you your opportunity and if you want to play games with

the court that is fine.

THE DEFENDANT: I’m not playing games, your Honor.

THE COURT: Mr, Page, do you have any recommendation to

make in connection with the plea of guilty as to Count II that

was entered on May 4, 1972? (pp. 26)

The factual situation is such as to relieve the government of

its original plea bargaining regardless of the Bradley case.

Nonetheless, the government is required to make a

recommendation consistent with the law and it is therefore the

recommendation of the government under Bradley that Mr.

Lustig be sentenced to a term of five years in jail in aceordance

with the requirements of Section 176(a) (Pp. 28)

THE COURT: Thank you.” (Tr. of 6/21/73 at 13, 14, 17.

19, 20, 21, 26, 28). [Emphasis added]

REENTRY OF PLEA TO 18 U.S.C. 545 INFORMATION BY

STIPULATION

“THE COURT: Mr. Roberts do you have any statements or

recommendation to make on behalf of the United States

Attorney’s office?

MR. ROBERTS: Yes, your Honor, the defendant’s counsel

and the United States Attorney have entered into a stipulation

which we tender to the court at this time. This stipulation does

have our recommendation in it.

THE COURT: Thank you. The court has read and considered

the stipulation and has approved the same and signed it and it

may now be filed.” (Tr. of 5/3/74 at 2)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.