Appendix — United States v. Timmreck

Supreme Court, U.S yf

t

i |

|

| FER 22 1979

APPENDIX ||

———

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-744

UNITED STATES OF AMERICA,

Petitioner

ame) ome ’

CHARLES TIMMRECK

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

| PETITION FOR CERTIORARI FILED NOVEMBER 3, 1978

CERTIORARI GRANTED JANUARY 8, 1979

._—

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-744

UNITED STATES OF AMERICA,

Petitioner

|

CHARLES TIMMRECK

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

INDEX

Page

I ee a es 1

Guilty Plea Proceeding, May 24, 1974 ...0............ccccccccececcccceseeeees 2

Respondent’s Amended Motion to Vacate Guilty Plea........... & 1]

Brief in Support of Respondent’s Motion to Vacate Guilty

EN ictibectéckeaaiioheal 14

Hearing on Motion to Vacate Guilty Plea, September 8, 1976.. 18

Order allowing Certiorari ..........................c.ceceec00e0e- saasektiaadeiaicads 27

1

RELEVANT DOCKET ENTRIES

1976

September 9 Motion to Vacate Sentence, filed.

September 7 Govt’s supplemental answer & brief in response

to motion to vacate

September 13 Pltf’s amended motion to vacate guilty plea

with affidavit.

September 13 Proof of service re pltf.’s supplemental memo-

randum of law in support of motion to vacate. BA

(out of order)

September 8 Motion to vacate sentence (piea) taken under

advisement. DD 9/15/76 Feikens, J.

Sept. 15 Government’s Second Supplemental Answer in Op-

position to Deft’s motion to vacate guilty plea with BA

& proof of service.

Dec.6 Memorandum opinion denying pltf.’s motion to vacate

sentence, filed and entered. (judge signed 12/3/76) DD

12/7/76 Feikens, J.

Dec. 6 Order denying pltf.’s motion to vacate sentence, filed

and entered (judge signed 12/3/76) DD 12/7/76 (cards

sent) Feikens, J.

Dec. 28 Notice of appeal by pltf. with proof of service. DD

1/5/77

1977

Jan. 4 Copy of letter to atty. for pltf. re appeal with attach-

ment. DD

Jan. 4 Proof of mailing re notice of appeal by pltf. DD

1/5/77

Feb. 22 Stip. for designation of record on appeal and for

joint appendix. DD 2/28/77

June 2 Order from C.C.A. extending time to docker record

on appeal until June 24/77. DD 6/3/77.

Sept. 7 Record on Appeal. DD 9/12/77

Sept. 21 True copy of motion from CCA granting extension

of time for transmission of record on appeal. DD 9/23/77.

2

GUILTY PLEA PROCEEDINGS

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

2

. Detroit, Michigan

Friday, May 24, 1974

About 9:30 a.m.

THE CLERK OF THE COURT: Criminal Action

No. 47253, The United States of America versus “Hy-

land” Charles Fye.

THE COURT: Mr. Mogill.

MR. MOGILL: If it please the Court, I have had

an opportunity to consult with my client and also I have

had an opportunity to discuss this matter with him,

and also discussed it with Mr. Kaufman.

At this time he will withdraw the previously entered

plea of not guilty and enter a plea of guilty to Count

I of the Indictment.

MR. KAUFMAN: Your Honor, may I say some-

thing?

THE COURT: Yes.

MR. KAUFMAN: This is a part of a plea bargain

arrangement which we have done with other defendants

in this case, your Honor, and I have agreed with Mr.

Mogill and his client that after sentencing I will dis-

miss, or the Government will dismiss the remaining [3]

Counts of the Indictment.

Further, we agree that we will not pursue an Indict-

ment or charge under 3150, that is the bond jumping

charge. Other than that, we have made no other agree-

ments with counsel or with the Defendant.

Is that correct?

MR. MOGILL: That is correct.

THE COURT: You understand that, Mr. Fye?

THE DEFENDANT: Yes, sir, I do.

THE COURT: Let the record show that your full

name is Hyland C. Fye; is that correct?

3

THE DEFENDANT: My name is Charles Timmreck.

THE COURT: Well, it’s known here as Hyland C.

Fye, and how are you really known, by Charles Timm-

reck?

THE DEFENDANT: Charles Timmreck.

THE COURT: And what is the Hyland C. Fye, an

alias?

THE DEFENDANT: Yes, your Honor.

THE COURT: So the record will note, then, that

you appear here as Charles Timmreck, also known [4]

as Hyland C. Fye, or Hyland C. Fye whose real name is

Charles Timmreck.

THE DEFENDANT: That’s correct.

THE COURT: Now, you prefer, then, that I address

you as Mr. Timmreck?

THE DEFENDANT: Yes, your Honor.

THE COURT: Any objection to that?

MR. KAUFMAN: No, sir, your Honor.

THE COURT: Can it be understood that the In-

dictment to which the plea is being made as to Count I

is amended in form so as to carry that out?

MR. KAUFMAN: I will so move.

THE COURT: Mr. Timmreck, how old are you?

THE DEFENDANT: 38.

THE COURT: Do you know of any difficulty that

you have, either medical or in any psychiatric sense

that prevents you from understanding the nature of what

goes on here today?

THE DEFENDANT: No, your Honor.

THE COURT: You see, what I want to get at and

re sure of is that you fully understand what you are

oing.

[5] THE DEFENDANT: Yes, sir.

THE COURT: Are you of the opinion that you do?

THE DEFENDANT: Yes, sir.

THE COURT: I take it that you have no trouble

with drug addiction, do you?

THE DEFENDANT: No, your Honor.

THE COURT: Now, in this case, as you know, there

is a trial going on as to at least some of the Defendants

who were indicted in this case along with you. You

know that now?

4

THE DEFENDANT: Yes.

THE COURT: And I only bring that up to say that

you do have a right, if you elect so to do, to stand trial

in this case. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And if you so elect, you could do

that. The Government would have to prove your guilt

beyond a reasonable doubt. You would not have to prove

your innocence on your behalf.

Mr. Mogill could cross-examine witnesses who appeared

against you, and you would have the right to remain

silent; you would not have to take [6] the witness stand

if you chose not so to do, and if you didn’t, | would

instruct the jury that they could draw no adverse in-

ference against you.

These are the rights that you have. Now, do you

understand those rights?

THE DEFENDANT: Yes, sir.

THE COURT: Now, do you waive those rights?

THE DEFENDANT: Yes, sir.

THE COURT: In this document that was handed

to me, your signature appears as Hyland C. Fye, ap-

pears as Charles Timmreck?

THE DEFENDANT: Yes, sir.

THE COURT: Did you sign that?

THE DEFENDANT: Yes, sir.

THE COURT: Did you read it before you signed it?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you have any questions that you

want to put to Mr. Mogill or me with regard to the

waiver of your Constitutional rights?

THE DEFENDANT: No, sir.

THE COURT: I take it, then, that you [7] know

what those rights are, and you consciously waive those

rights?

THE DEFENDANT: Yes, your Honor.

THE COURT: Are you of the opinion that Mr. Tim-

mreck has done that, Mr. Mogill?

MR. MOGILL: Yes, I am, Judge.

THE COURT: Now, if I accept your plea of guilty,

5

Mr. Timmreck, do you know what the possible conse-

quences of a plea of guilty to Count I of this Indictment

could be in terms of punishment?

THE DEFENDANT: No, sir.

THE COURT: Have you been told that you could

serve as long as 15 years in jail and be subjected to a

substantial fine, and I believe the fine is $25,000. Have

you been told that?

THE DEFENDANT: Ihave now, yes.

THE COURT: Now you know?

THE DEFENDANT: Yes, sir.

THE COURT: I want you to be thoroughly advised

as to that, because if you wish, knowing now that it’s

possible that if I accept your plea of guilty, that that’s

what could happen in this case. You would have a

ny if you wish at this stage to withdraw [8] your

plea.

THE DEFENDANT: Yes, sir.

THE COURT: Do you wish to change your mind

and not plead?

THE DEFENDANT: No. I was in the thing, and

as far as marijuana was concerned. I was involved ia

that, but nothing else.

THE COURT: I wasn’t asking you whether or not

you plead guilty, and I thank you for telling me what

you have, but I want to be sure before I take your plea

that you know what the consequences could be.

THE DEFENDANT: Yes.

THE COURT: I have sentenced men to jail in this

case before.

THE DEFENDANT: Yes, sir.

THE COURT: And I want you to know that while

I don’t know what the sentence will be in your case,

I want you to know what the outer limits might be.

THE DEFENDANT: Yes, sir.

THE COURT: You understand that?

THE DEFENDANT: Yes, sir.

THE COURT: In view of that, how do [9] you

plead?

THE DEFENDANT: I plead guilty.

THE COURT: To Count I of this Indictment?

6

THE DEFENDANT: Yes, sir.

THE COURT: Now, Mr. Timmreck, tell me what

your involvement was? What did you do that brings

you to the point that you say you are guilty of the

charges contained in Count I of this Indictment?

THE DEFENDANT: Well, I did receive some mari-

juana through these people, and—

THE COURT: By “these people,” you mean some

of the—

THE DEFENDANT: Some of the Defendants who

were indicted, were involved in the trial right now.

THE COURT: Who did you—

MR. MOGILL: If it please the Court—

THE COURT: Mr. Mogill, I have been listening to

cases and testimony—

MR. MOGILL: I understand that.

THE COURT: And I am sure that this is not going

to in any way affect anybody’s rights because I am not

the trier of the facts.

[10] MR. MOGILL: I understand that. I would just

urge the Court, I believe the substantive facts are made

out without specification of names.

THE COURT: I think maybe you are right, par-

ticularly when I have had the opportunity of securing

possible corroborations, what I have been told through

the facts that have been testified to in this court.

MR. MOGILL: Thank you, Judge.

THE COURT: Let’s leave it at that.

Some of these co-defendants of yours from whom you

got marijuana; is that correct?

THE DEFENDANT: Yes, your Honor.

THE COURT: Now, what you are charged here

with is a conspiracy. Do you know what a conspiracy is?

It’s an agreement. Did you enter into an agreement of

some kind? I don’t mean in written form, but did you

and these others act together, in concert together? Did

you undertake to do some certain things with regard

to marijuana?

THE DEFENDANT: Well, I did receive the mari-

juana, yes.

THE COURT: Yes?

THE DEFENDANT: But I did not, you [11] know,

know exactly how it got to Detroit.

THE COURT: And what was your part in the ar-

rangement or agreement? What did you have to do?

THE DEFENDANT: Well, I just receive some of it

and sold it for them.

THE COURT: For the group?

THE DEFENDANT: Yes.

THE COURT: Is that right?

THE DEFENDANT: Yes.

THE COURT: You know that there were a number

of persons that were involved?

THE DEFENLANT: Actually, the involvement of

mine was with just a couple.

THE COURT: It doesn’t matter how many.

THE DEFENDANT: —because I was in California

most of the time. ,

THE COURT: It doesn’t matter how many, Mr. Tim-

mreck. The question I’m getting at is that you knew

there was an arrangement of some kind in which you

participated ; is that correct?

THE DEFENDANT: Well, I realized they did bring

it here from Mexico, I suppose, and I took [12] a portion

of what they had and sold it.

THE COURT: Now, the Indictment in Count I says

this took place sometime between April of 1970 up to

and including the 10th of May 1972.

Did the activity to which you make reference occur

within that period?

THE DEFENDANT: Yes, sir.

THE COURT: Between April of ’70 and May 10th

of ’72?

THE DEFENDANT: Yes, sir.

THE COURT: And in your activities, you say that

much of it occurred in California?

THE DEFENDANT: Well, not really. I mean, with

those people, I was in California most of the time.

THE COURT: Isee.

THE DEFENDANT: But I came back here for

Christmas and then I met the people.

8

THE COURT: Did some of your activities occur in

this area?

THE DEFENDANT: This area, yes, your Honor.

THE COURT: Can you give me some idea [13] of

what you did in the Detroit area?

THE DEFENDANT: Well, I probably all told, at

the very most, sold two hundred pounds of marijuana. .

THE COURT: In this area?

THE DEFENDANT: Yes, sir.

THE COURT: As a result of this arrangement that

you had with the people?

THE DEFENDANT: Yes, sir.

THE COURT: It that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Now, at the time that you did this,

you knew that this was wrong, an offense against the

law?

THE DEFENDANT: Well, at the time, your Honor,

I think they had just ruled that the Michigan law was

thrown out for a while.

THE COURT: I am talking about the Federal law.

Since this is a United States Court, I can’t really be

concerned directly with Michigan law.

THE DEFENDANT: Yes, sir.

THE COURT: Did you have knowledge, Mr. Tim-

mereck, that what you were doing was wrong and [14]

contrary to our law?

THE DEFENDANT: Well, yes. I knew.

THE COURT: There is no question about that, is

there?

THE DEFENDANT: No, sir.

THE COURT: That’s why you you say you are

guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Are there any other questions with

regard to a factual basis for a plea of guilty to Count

I to this Indictment, Mr. Kaufman?

MR. KAUFMAN: I have no further questions. The

evidence does show that he was involved in other drugs,

however, your Honor.

9

THE COURT: I think, Mr. Mogill, in view of the

fact that I am in the unusual circumstances of listening

to testimony, even though I am not the trier of the facts,

I can’t accept that as corroborative of a plea of guilty

in this case.

Do you understand?

THE DEFENDANT: Yes.

THE COURT: I’m sure you do.

Now, has anyone forced you to make [15] this plea

of guilty?

THE DEFENDANT: No, your Honor.

THE COURT: You are doing this, then, as I under-

stand, because you want to doit, voluntarily.

THE DEFENDANT: Yes, sir.

THE COURT: Outside of the understanding that

Mr. Kaufman stated a moment ago, that is that all of

the remaining Counts in this Indictment be dismissed

against you and that there would be no prosecution

against you for having jumped bail, so to speak—

THE DEFENDANT: Yes.

THE COURT: You understand what I mean by

that?

THE DEFENDANT: Yes.

THE COURT: Outside of those promises, have there

been any other promises of any kind made to you in

order to get you to plead guilty?

THE DEFENDANT: No, sir.

THE COURT: You have not been threatened in any

way?

THE DEFENDANT: No, sir.

THE COURT: Mr. Mogill, are you of the opinion

that there is a factual basis for this plea?

[16] MR. MOGILL: Yes, I am.

THE COURT: And that your client knows full well

the consequences of a guilty plea might be?

MR. MOGILL: That’s correct.

THE COURT: Very well, Mr. Timmreck, I will ac-

cept your plea of guilty to Count I of this Indictment.

I find-on this record that you have voluntarily made

this plea of guilty; that you have knowingly and con-

sciously waived your Constitutional right in order to

10

make this plea; that you make the plea knowing full

well what the possible consequences of your plea; and

finally, that there is a factual basis for the plea of guilty

to Count I.

So, I will accept it and I will refer your case to the

Probation Department of this Court for a presentence

report, and I will remand you to the custody of the

Marshals to await sentencing.

THE DEFENDANT: Yes, sir.

THE COURT: Anything further?

MR. KAUFMAN: Nothing further, your Honor.

Thank you.

THE COURT: Wewill be in recess.

11

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

No. 76-71867

[Filed September 13, 1976]

CHARLES TIMMRECK, PLAINTIFF

—v38.—

UNITED STATES OF AMERICA, DEFENDANT

AMENDED MOTION TO VACATE GUILTY PLEA

NOW COMES CHARLES TIMMRECK, Plaintiff here-

in, by and through his attorney KENNETH M. MOGILL,

and moves this Honorable Court for an Order vacating,

his guilty plea in this cause for the following reasons:

1. On May 24, 1974, Plaintiff pled guilty in this Court

to distribution of a controlled substance in violation of

21 USC § 841 (a) (1).

2. On September 19, 1974, Plaintiff was sentenced to

a prison term of ten (10) years, plus a five thousand

($5,000.00) dollar fine and special parole term of five

(5) years.

3. When questioned by the court at the time of his

plea, Plaintiff indicated that he did not understand the

consequences of his plea of guilty.

4. F R Crim P 11 requires that before a judge may

accept a plea of guilty he or she must determine that

the plea is made voluntarily, with an understanding of

the nature of the charge and the consequences of the

plea.

5. In advising Plaintiff of the consequences of his

guilty plea in this case, the court failed to inform Plain-

tiff of the mandatory special parole term required by

21 USC § 841 (a) (1).

6. This motion is brought pursuant to 28 USC § 2255.

12

WHEREFORE, Plaintiff prays this Court for an Order

vacating his guilty plea herein.

Respectfully submitted,

/s/ Kenneth M. Mogill

KENNETH M. MOGILL P17865

Attorney for Plaintiff

1455 Centre Street

Detroit, Michigan 48226

962-7210

Dated: September 10, 1976

13

AFFIDAVIT

STATE OF MICHIGAN )

ss.

COUNTY OF WAYNE )

Kenneth M. Mogill being first duly sworn, deposes

and says that he has read the foregoing Motion by him

subscribed and knows the contents contained therein to

be true, except those matters stated to be upon informa-

tion and belief, and as to those matters he believes them

to be true.

/s/ Kenneth M. Mogill

KENNETH M. MOGILL

Subscribed and sworn to before me this 10th day of

September, 1976

/s/ Karen E. Cairns

KAREN E. CAIRNS

Notary Public, Wayne County, Michigan

My Commission Expires: 2/20/80

14

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

No. 47253

UNITED STATES OF AMERICA, PLAINTIFF

—v8.—

CHARLES TIMMRECK, a/k/a HYLAND C, FYE, DEFENDANT

BRIEF IN SUPPORT OF MOTION TO VACATE

GUILTY PLEA

STATEMENT OF FACTS

On May 24, 1974, Defendant pled guilty before this

Court of distribution of a controlled substance, in viola-

tion of 21 USC § 841(a) (1). At the time of the taking

of the plea, the Court advised Defendant of the maximum

time to which he could be sentenced and the maximum

fine which could be imposed. The Court failed, however,

to inform Defendant of the mandatory special parole

term to which he would be subject if he were sentenced

to a prison term of any length.

The relevant colloquy was as follows:

Now, if I accept your plea of guilty, Mr. Timmreck,

do you know what the possible consequences of a

plea of guilty to Count I of this Indictment could

be in terms of punishment?

Defendant replied that he did not know, and the Court

continued:

Have you been told that you could serve as long as

15 years in jail and be subjected to a substantial

fine, and I believe the fine is $25,000. ...I want

you to be thoroughly advised as to that, because if

you wish, knowing now that it’s possible that if I

accept your plea of guilty, that that’s what could

happen in this case (p 7).

—~_ -

——

15

At the conclusion of the hearing, without further men-

tion of any additional consequences, the Court accepted

Defendant’s plea of guilty.

Defendant was subsequently sentenced on September

19, 1974, to a prison term of ten (10) years plus a

five thousand ($5,000.00) dollar fine and a special parole

term of five (5) years.

This is Defendant’s Brief in Support of Motion to

Vacate Guilty Plea.

ARGUMENT

WHERE A DEFENDANT WHO DOES NOT

KNOW THE CONSEQUENCES OF HIS GUILTY

PLEA IS NOT ADVISED AT THE TIME OF

HIS PLEA THAT A SPECIAL PAROLE TERM

IS MANDATORY IF A PRISON SENTENCE

SHOULD BE IMPOSED IN HIS CASE, DEFEND-

ANT HAS NOT BEEN ADVISED OF THE CON-

SEQUENCES OF HIS PLEA WITHIN THE

MEANING OF F R CRIM P 11, AND A PLEA

SO MADE MUST BE SET ASIDE.

This motion is brought pursuant to the provisions of

28 USC § 2255, which provides in pertinent part that a

person in the custody of the United States challenging the

lawfulness of that custody may move in the Court which

imposed his or her sentence to vacate that sentence and

plea.

F R Crim P 11 requires tnat a district court may not

accept a plea of guilty “without first addressing the De-

fendant personally and determining that the plea is made

voluntarily with understanding of the nature of the

charge and the consequences of the plea.” In order for the

plea to be voluntarily made, it must be made by “ ‘one

fully aware of the direct consequences’ ” Brady v. United

States, 397 US 742, 755, 90 SCt 14638, 25 LEd2d 747, 760

(1969), of the plea.

This requirement grows out of a concern that guilty

pleas be truly voluntary.

16

Numerous courts, including this Sixth Circuit, have

considered whether a mandatory special parole term is

a “direct consequence” within the meaning of Rule 11

and Brady, supra. Their answers have been affirmative.

In United States v. Wolak, 510 F2d 164, 166 (6th

Cir, 1975), a case arising out of this district, the district

judge had failed to inform the Defendant of the special

parole provision mandated by the same statute involved

here, and for that reason the Court of Appeals vacated

the Defendant’s plea. The Court noted that:

Although the emphasis in the case law has been upon

the requirement that the judge inform the Defendant

of the maximum possible period of incarceration, this

circuit and others have indicated that a Defendant

must be aware of other direct consequences of his

plea. . . It is our determination that, in order to

comply with Rule 11, the district judge must inform

a Defendant of the minimum sentence, either cus-

todial or parole where there is a mandatory mini-

mum, and of any special limitations on parole or

probation.

See also United States v. Yazbeck, 524 F2d 641 (lst

Cir, 1975); Ferguson v. United States, 518 F2d 1011

(2nd- Cir, 1975) ; United States v. Valenciano, 495 F2d

1236 (3d Cir, 1974); United States v. Richardson, 482

F2d 516 (8th Cir, 1974).

Defendant here was charged under and pled guilty to

violation of 21 USC § 841(a)(1) which requires that

“any sentence imposing a term of imprisonment under

this paragr ~» shall . . . impose a special parole term

of at leas Luree years, in addition to such term of

imprisonment”. This special parole term has unique

terms in that it is mandatory for Defendants who are

sentenced to imprisonment and it is given in addition

to rather than in substitution for regular parole, pro-

visions making it all the more important that the plea

taking judge carefully explain its provisions to a De-

fendant in order for him or her fully to comprehend

the consequences of a guilty plea. Defendant did not

know of the mandatory special parole term, and he was

is

not advised of it at the time of his plea. F R Crim P

11 was therefore not complied with, and his plea must

be set aside.

CONCLUSION

For all the reasons stated above, Defendant’s guilty

plea should be vacated.

Respectfully submitted,

/3s/ Kenneth M. Mogill

KENNETH M. MOGILL P17865

Attorney for Defendant

1455 Centre Street

Detroit, Michigan 48226

962-7210

Molly Reno

(Legal Assistant)

Dated: August 10, 1976

18

HEARING ON MOTION TO VACATE GUILTY PLEA

[2]

Detroit, Michigan

Wednesday, September 8, 1976

About 3:00 P.M.

THE CLERK: Call the case of Charles Timmreck

versus the United States-—this is Criminal Action Num-

ber 47258. It will be given a new civil number.

MR. MOGILL: Good afternoon, Judge.

We are here this afternoon on the Plaintiff’s motion

to vacate the guilty plea in this case. This motion is

brought pursuant to 28 United States Code Section 2255.

Essentially what is alleged is that the plea was taken

in this case did not comply with Rule 11 for the reason

that at the time of the taking of the plea, the Defendant

was not advised of the special parole provisions of the

Federal Drug Act.

THE COURT: Do you have a copy of the transcript

of the plea?

MR. MOGILL: I do have. I don’t know if I brought

it with me. The Government is in agreement.

MR. ZUCKERMAN: Your Honor, for the record,

my name is Richard Zuckerman. I am an attorney for

the Department of Justice, and I have a copy of the

plea if the Court would like to see it.

THE COURT: I have a copy.

[3] I’m sorry, Mr. Zuckerman. Could I see that a mo-

ment, please.

MR. ZUCKERMAN: Certainly, Your Honor.

THE COURT: Because I want to address your at-

tention to your motion because I am not able to under-

stand paragraph 38.

In paragraph 3 you say: “When questioned by the

Court at the time of his plea, Defendant indicated that

he did not understand the consequences of his plea of

guilty.” c

Now, on page 7, if you will turn to the transcript—

I tuke it that what you are referring to is that statement

by the Court:

19

“Now, if I accept your plea of guilty, Mr. Timmreck,

you understand what the possible consequences of a plea

of guilty to count one of this indictment could be in terms

of punishment?”

“THE DEFENDANT: No, sir.”

MR. MOGILL: Yes.

THE COURT: But you didn’t go on to state what

next happened.

I then say:

“THE COURT: Have you been told [4] that you

could serve as long as 15 years in jail and be subjected

to a substantial fine—and I believe the fine is $25,000.

Have you been told that?”

“THE DEFENDANT: I have now, yes.”

“THE COURT: Now you know?”

“THE DEFENDANT: Yes.”

“THE COURT: I want you to be thoroughly advised

as to that because if you wish, knowing that it is pos-

sible that if I accept your plea of guilty, that that’s what

could happen in this case. You would have a right, if

you wish at this stage to withdraw your plea.”

“THE DEFENDANT: Yes.”

“THE COURT: Do you wish to change your mind

and not plead?”

“THE DEFENDANT: No.”

I am not able to understand what you mean in para-

graph 3.

MR. MOGILL: That fact is, Judge, there is no in-

tention on my part or anyone’s part of taking anything

out of context. Mr. Timmreck was advised of the pos-

sibility of the :1aximum imprisonment; was advised of

the possibility of the maximum fine. He was not advised

as to the mandatory [5] special parole term.

THE COURT: What do you say to this at page 16—

well, we ought to start at the bottom of 15:

“THE COURT: Mr. Mogill, are you of the opinion

that there is a factual basis for this plea?”

“MR. MOGILL: Yes, I am,”

“THE COURT: And that your client knows full well

the consequences of a plea of guilty—or what the con-

sequences of a plea of guilty might be?”

20

“MR. MOGILL: That is correct.”

What were you thinking about when you said that

to me?

MR. MOGILL: I think, Judge, when I—

THE COURT: I asked you what you were thinking

about.

MR. MOGILL: I am attempting to answer.

THE COURT: Not what Mr. Timmreck was think-

ing about.

MR. MOGILL: I have no basis for reconstructing

my memory in May of 1974. I can only say that, just as

I—the Court had no intention to delete—

[6] THE COURT: Did you discuss the possible con-

sequences of the plea or not?

MR. MOGIL: Judge, I have no way of knowing.

THE COURT: Did you or did you not?

MR. MOGILL: I have no way of knowing.

THE COURT: Why did you represent to me, if you

did not—

MR. MOGILL: I would like to finish what J had

begun to state to the Court.

THE COURT: I would like to hear something other

than evasive answers.

MR. MOGILL: I am not attempting to evade. If I

could finish the sentence, that, perhaps, could satisfy the

Court. If not, I will answer anything the Court asks me.

I have no way of knowing whether I discussed with

Mr. Timmreck the requirements of the special parole

term. If I didn’t, I was in error in advising the Court

that I fully advised him of the consequences. I just don’t

know two years later whether I did or not. And I ad-

vised the Court that I had discussed it with him. I have

no way of knowing whether or not that discussion in-

cluded the special parole term.

[7] If I hadn’t, it was not an intentional omission on

my part. I have no way of knowing what was stated.

THE COURT: Are you finished?

MR. MOGILL: And Iam happy to—

THE COURT: Is it a part of your custom to repre-

sent a client and not to explain what the implications

of his plea of guilty might be in terms of sentencing?

21

MR. MOGILL: No, Judge.

THE COURT: Don’t you follow the practice in every

case of doing this?

MR. MOGILL: Judge, I cannot state that I did or

did not explain to Mr. Timmreck the requirements of

the special parole term in this case.

THE COURT: Dosen’t it indicate that you did?

MR. MOGILL: It indicates that. The record speaks

for itself. I have no way of supplementing that record.

THE COURT: Let’s just say the record speaks for

itself.

Let me ask you this: Mr. Timmreck knew, did he

not, that he was exposed here by his piea to [8] a sen-

tence for as long as 15 years—

MR. MOGILL: That is correct.

THE COURT: —in custody. And that he could be

subjected to a substantial fine, and that was mentioned,

$25,000; is that not right?

MR. MOGILL: The record speaks for itself.

THE COURT: In fact, he did not receive a 15 year

prison sentence, did he?

MR. MOGILL: He received a ten year sentence.

THE COURT: Right, plus a five-year special parole

term.

MR. MOGILL: That is correct.

THE COURT: Justice Stevens—then Justice Stevens

of the .th Circuit, in talking about that kind of situa-

tion, said that there were two problems that were in-

volved in a situation similar to this, and that is whether

or not the plea was voluntary, and voluntariness had

to be considered at a point in time prior to the sentence,

not after the sentence; and secondly, whether or not the

sentence, when taken in its entirety was fair. And on

the fairness issue, he said this, at page 599 of 517

Federal Reporter 2d. I suppose his opinion is entitled

[9] to a little extra persuasiveness since he is now a

Justice of the Supreme Court.

On the fairness issue, I think the advice should be

compared with the actual sentence rather than with a

direct statement of the sentence that might properly

have been imposed. As long as the actual sentence was

22

less than the maximum as described in the Judge’s ad-

vice, I would find no unfairness and certainly not any

unfairness sufficiently grave to qualify as constitutional

error.

Now, in Bachnar versus the United States, there was

a trial judge’s failure to advise the petitioner that he

would have to serve a special parole term of at least

three years. Judge Stevens said that did not make the

plea involuntary, and on the fairness issue he said what

I have just read.

Now, how is what is revealed in this transcript un-

fair to Mr. Timmreck when he was told that his ex-

posure could have been as much as 15 years in jail and

he was not sentenced to 15 years in jail. He was sen-

tenced to ten years, and you told me that you had

thoroughly advised him of the possible consequences of

his guilty plea.

Now, under those circumstances, where is the unfair-

ness in this sentence?

[10] MR. MOGILL: First, I would like to correct

what the Court is indicating as to the state of the record.

I did not indicate that I had fully advised my client;

I indicated I was of the opinion—

THE COURT: Let’s read it again.

And that your client full well—and then there is a

word deleted—I think there is—that your client knows

full well—is the way it reads here—I think the way I

said it is that your client full well knows—that your

client knows full well what the consequences of a guilty

plea might be?

And you say: “That is correct.”

What does that mean?

MR. MOGILL: What that means is exactly what it

says, that I was of the opinion at that time that my

client knew. As I indicated to the Court, I have no way

of supplementing the record. The unfairness—

THE COURT: Let’s take it your way, that you had

an opinion that he knew.

Your opinion, I think, is open to the fair inference

that you discussed it with him. That’s how you had the

opinion. If you didn’t have that opinion, you wouldn’t

23

have told me you had it. And you, therefore, obviously

have gotten it from having ‘talked about it.

[11] Now, if I told him his exposure was 15 years and

_he was given 10, and inferentially you told him about

the three year parole term, inferentially, and he knew

that, where is the unfairness?

MR. MOGILL: There is—I have no recollection one

way or the other as to whether or not we discussed the

special parole term.

THE COURT: Well, I think I can infer that it was

known to him under that state of affairs. Where is

the unfairness?

Let’s take it the other way. Let’s say this doesn’t

mean anything. Let’s delete from the transcript your

representation to me that your client was fully informed

of the consequences of his plea. Take it out.

MR. MOGILL: You know that I am not asking the

Court to take it out. I am satisfied.

THE COURT: Let’s take it out, and tell me, if it is

taken out, where the unfairness is? ,

MR. MOGILL: The unfairness arises, Judge, because

the Sixth Circuit last year in the Wolak case has stated

explicitly that where there is no express indication on |

the record that a defendant was advised of his—

[12] THE COURT: No, that was not Wolak. Wolak

was a situation in which the defendant said to the judge

that he didn’t understand what that meant and it was

_ not explained to him what it meant. That’s what Wolak

said.

But I am not asking you that. I am asking you where

is the essential unfairness to Mr. Timmreck who pleaded

guilty knowing that his exposure might be 15 years in

prison and I sentenced him to ten years in prison with

the special parole term of five years. Where is the un-

fairness to Mr. Timmreck in that?

MR. MOGILL: The unfairness arises from the Court

at this point in time presuming, in order to sustain the

plea, that that additional information would not have

made a difference in the Defendant’s choice to plead back

then. And I think that’s a presumption that the Court

ought not to indulge in.

24

THE COURT: You know that sometimes common

sense seems to go out the window, and this seems to

me one of those times.

What a defendant wants to know more than anything

else at the time he makes his plea is what is that num-

ber going to be, the time that he will have to spend in

jail, not the time on parole, but the time I am going to

be in prison. And what he wants to know more [13]

than anything else is that number. And I think that

that’s what I had in mind when I think about it. Where

is there that 1 have been unfair to Mr. Timmreck? Be-

cause if I can be persuaded of that, I will, apart from

the argument that you make, Mr. Zuckerman, and I will

hear you on your argument as to whether or not this

can be raised in this form—I understand that you have

that argument that you wish to make—but assuming

that I had no problem with Mr, Zuckerman’s argument

under 2255 and could decide that that didn’t bar my

address of your petition, I would not hesitate to set this

plea aside and try Mr. Timmreck again.

I head all of the evidence in connection with another

trial; I heard all of the tape recordings. I wouldn’t have

to judge his guilt or innocence. That would be for a

jury. There is much evidence from which that finding,

if the jury wished to make it, of guilty, could be found,

and he could be resentenced again. I wouldn’t hesitate to

= that if I thought that I had dealt unfairly with

im.

I would say this: That if I had said to him, “You

will not be imprisoned for more than ten years,” and

I had said nothing about a special parole term so that

there was at least the possibility that he could have

thought that after ten years, plus good time behavior,

he [14] would be free of all custodial restraint of one

kind or another, it would be unfair. But here, you know

—and I know that if he serves this sentence with his

good time behavior and whatever extra good time be-

havior he merits—

MR. MOGILL: He has earned eve

PO on ry day that he is

THE COURT: Yes. That he would not be in a cus-

todial restraint situation for more than 15 years,

25

As a matter of fact, it will be significantly less, in-

cluding the five year special parole term.

Now, looking at it that way, where is the unfairness?

MR. MOGILL: Again, Judge, I think the unfairness

arises from the Court putting itself in the position of the

Defendant. And I think that while I cannot quarrel

with the Court’s statement, that a substantial number

of defendants are concerned only abouvt the amount of

time they would be on the inside, I think to infer that

in a particular case that that’s the sole motivating factor,

to infer in this particular case that the absence of that

information would not have been dispositive, would have

not made Mr. Timmreck’s decision different. I think

that that’s—that requires the Court to speculate in a

way [15] which is unfair to the defendant.

THE COURT: Well, I find that difficult,

You see, I can tell you what my state of mind was

at the time of sentencing. And because of the heinousness

of this crime, irrespective of what Mr. Timmreck said

was the degree of his involvement, this was one of the

most heinous drug conspiracies that I have presided in

trial of. I heard extensive testimony that last for a

long time with regard to five of the co-defendants in this

case,

And if I had said to Mr. Timmreck at the time of

sentencing, “I will sentence you to the custody of the

Attorney General for 15 years and then I will add on a

special parole term of five years,” that that would be

unfair. But my state of mind was this: Since I had

addressed him in terms of the exposure of his—and this

case was thoroughly discussed in the sentencing counsel—

that the intent of this could be met by a ten year sen-

tence plus a five year special parole term. And that

he knew because he said he knew.

MR. MOGILL: Well—

THE COURT: He knew that he could be exposed

to a custodial restraint of 15 years. And, [16] there-

fore, I sentenced him to ten years plus the five year

special parole term, That’s why I say: Where is the

unfairness?

26

MR. MOGILL: It is my position, Judge, that Wolak,

that Phillips, which follows Wolak, 519 Federal 2d—

regardless of any fundamental unfairness—and I would

urge the Court to put itself in this position—excuse me

—urge the Court not to put itself in the position of second

guessing the Defendant at the fact—but those two cases—

THE COURT: I am not second guessing the De-

fendant. I am sure that it would not have made one

bit of difference to Mr. Timmreck if I had said to him

in this case,- “You will be subjected to a parole term

of at least three years,” as far as his guilty plea is con-

cerned, I am not second guessing him because I did not

put him in a custodial restraint situation for more than

the exposure to which he had knowledge.

And what he was interested in, I’m sure, was what

the term in prison would be.

o * * @

27

SUPREME COURT OF THE UNITED STATES

No. 78-744

UNITED STATES, PETITIONER

Vv.

CHARLES TIMMRECK

ORDER ALLOWING CERTIORARI. Filed January 8, 1979

The petition herein for a writ of certiorari to the

United States Court of Appeals for the Sixth Circuit is

granted.

WW oU. 8. GOVERNMENT PRINTING OFFICE, 1070 200400 2a7