Petition — Caston v. United States

.

: ' Bupreme Court, U, 6,

fF FILED’

$9-1858 | wy 23 0 fT

ree No. | MICHAEL RODAK, JR., CLERW

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

.

a

.

by

4

OSBAN CASTON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

™~

ALLAN A. ACKERMAN, ESQ.

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

(312) 332-2863

Attorney for Petitioner,

Ospan Caston

Midwest Law Printing Co., Chicago 60601, FInancial 6-3988

TABLE OF CONTENTS

PAGE

RE II 0) nnsnreinadnccticcaisaasakianniocualbcepiahassimmnmeietenaaiaecias 1

Jurisdiction ..... sian ise siete Ue

SIE IN si cicscncancinstntestionticbianssheahinnpibionniaibaniasednaa’ 2

Constitutional Provisions, Federal Rules and Stat-

MONI iciicistetissenscicinitnicciidesiinlibhsines dias epeliomeapiaaleapitcelaaa aaa 3

Statement ...... See I aN rr Piel EF fed ree 9

Reasons for Granting the Petition -......0..02.2......2.....-00-- 13

Arguments Supporting the Grant of Certiorari .............. 16

REO EINER. 8 IN) TAO OST A aN ES MARTTI A SE 24

Group Appendix A—Opinion Below ......................-..-.- App. A

LIST OF AUTHORITIES

Cases

Allessi v. U.S., 593 F.2d 476 (CA 2, 1979) .0.0...2.....eeeseeees 17

Bell v. U.S., 349 U.S. 81, 75 S.Ct. 620 (1955) ....000.. 21

Goodson v. U.S., 564 F.2d 1071 (CA 4, 1977) .................... 20

Heflin v. U.S., 358 U.S. 415, 79 S.Ct. 451 (1959) -.0..... 22

Horsley v. U.S., 583 F.2d 670 (CA 3, 1978) ....................-- 17

McCarthy v. U.S., 394 U.S. 459, 89 S.Ct. 1166 (1969) ..

ae 2, 16, 17, 18

Milanovich v. U.S., 365 U.S. 551, 81 S.Ct. 1166 (1969) .. 22

Philips v. U.S., 519 F.2d 483 (CA 6, 1977) ou « 32

Prince v. U.S., 352 U.S. 322, 77 S.Ct. 403 (1957) ........ 20, 21

Rummel v. Estelle, ...... US. ......, 100 S.Ct. 1133 (1980) .. 24

Sanabria v. U.S., 487 U.S. 54, 98 S.Ct. 2170 (1978) .... 15, 19

Simpson v. U.S., 435 U.S. 6, 98 S.Ct. 909 (1978) .... 14, 15, 19

U.S. v. Boatright, 588 F.2d 471 (CA 5, 1978) ................ 17

ii

U.S. v. Bullock, 615 F.2d 1082 (CA 5, 1980) .................... 21

U.S. v. Dayton, 604 F.2d 931 (CA 5, 1979) ....00.0002.... 14, 17

U.S. v. Edick, 603 F.2d 772 (CA 9, 1979) ...................-+. 20

US. v. Gaddis, 424 U.S. 544, 96 S.Ct. 1028 (1976) .. 22, 23

US. v. Gray, 611 F.2d 201 (CA 7, 1979) ...................... 17

U.S. v. Hart, 566 F.2d 977 (CA 6, 1978) ........................ 17

U.S. v. Hernandez, 591 F.2d 1019 (CA 1979) en banc... 21

U.S. v. Journet, 544 F.2d 633 (CA 2, 1976) .................. 16

U.S. v. Knife, 592 F.2d 472 (CA 8, 1979) .......0.00.0.... 18

U.S. v. Lopez-Beltram, 607 F.2d 1223 (CA 9, 1979) ..... 17

U.S. v. Pearlstein, 576 F.2d 531 (CA 3, 1978) .............. 18

U.S. v. Seals, 545 F.2d 26 (CA 7, 1976) ......000000......... 22

U.S. v. Standefer, ...... USS. ......, 100 S.Ct. 658 (1980) .. 17

U.S. v. Stavros, 597 F.2d 108 (CA 7, 1979) ................ 22

U.S. v. Timmreck, 441 U.S. ......, 99 S.Ct. 2085 (1979) ..

SAS SEERA sis ‘ae 16, 18

U.S. v. Wazbeck, 524 F.2d 641 (CA 1, 1975) sbcatatcladeees 16

Whalen v. US., ...... US. ......, 100 S.Ct. 1432 (1980) .. 15, 24

Constitution, Statutes, Rules and

Other Authorities

United States Constitution, Fifth Amendment .. 3, 15, 18, 19

ss ssosasintoenisencnsbnaasi 7

EE a 22-23

CT dicnesinosbincaeslonstnane 7

ETE RT ee 7, 20

i cmsinninentnenndanpsuesanation 7,8

as scuaseneanontneessmesonens 23

ete NE 23

nis cecensastencnscusentesensecans 21-22

TERESI EN PO CE OO 22-23

26 U.S.C. $4412 SS CRIS a 22-23

EIS 22-23

TES ee ee 21

Rule 11, Federal Rules Criminal Procedure .... 3-6, 13, 14, 16

1978 Annual Report of the Director, Administrative

Office of the United States Court, 114 —...00.0..... 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

OSBAN CASTON,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Osban Caston petitions for a Writ of Certiorari to re-

view the Judgment of the United States Court of Appeals

for the Fifth Circuit.

OPINION BELOW

The Opinion of the Court of Appeals is dated April 24,

1980 and is reported as U.S. v. Caston, 615 F.2d 1111 (CA

5, 1980). The decision below is appended as Group Appen-

dix A, infra.

a We

JURISDICTION

The opinion of the Court of Appeals for the Fifth Cir-

cuit was entered on April 24, 1980. A petition for rehearing

was contemplated, but the petitioner has now eschewed the

opportunity to file same. Rather, the petitioner seeks redress

directly to this Court. This petition is filed within thirty

(30) days of April 24, 1980 and the jurisdiction of this

Court is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Is it not exceptionally important within the realm

of Federal criminal justice to ascertain the parameters of

Rule 11 compliance where over 85 percent of all criminal

convictions occur upon the taking of either pleas of guilty

or nolo contendere? Assuming this proposition to be cor-

rect, do not the decisions in both McCarthy v. U.S.,’ and

U.S. v. Timmreck,? compel vacation of the guilty plea and

sentence imposed on petitioner in this case where the Court

of Appeals agreed that there was a paucity of Rule 11

compliance?

2. Whether the Court of Appeals approved constitu-

tional error while affirming petitioner’s thirty (30) year

sentence for car theft where the sentence was the result

of impermissible pyramiding or stacking of counts .. . in

violation of petitioner’s Fifth Amendment protections?

1 394 US. 459, 89 S.Ct. 1166 (1969).

2 441 US. ..., 99 S.Ct. 2085 (1979).

‘sills

CONSTITUTIONAL PROVISIONS, FEDERAL

RULES AND STATUTES

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, limb; nor shall be com-

pelled 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.

* * * * *

Rute 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 in-

terest of the public in the effective administration of

justice.

(c) Advice to Defendant. Before accepting a plea of

guilty or nolo contendere, the court must address the

defendant personally in open court and inform him of,

and determine that he understands, the following:

(1) the nature of the charge to which the plea

is offered, the mandatory minimum penalty pro-

vided by law, if any, and the maximum possible

penalty provided by law; and

—

(2) if the defendant is not represented by an at-

torney, 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 ap-

pointed to represent him; and

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

to persist in that plea if it has already been made,

and 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

(5) 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 or 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 or threats or of promises

apart from a plea agreement. The court shall also in-

quire 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.

(e) Plea Agreement Procedure.

(1) In General. The attorney for the government

and the attorney for the defendant or the defendant

when acting pro se may engage in discussions with a

calbies

view toward reaching an agreement that, upon the

entering of a plea of guilty or nolo contendere to a

charged offense or to a lesser or related offense, the

attorney for the government will do any of the fol-

lowing:

(A) move for the dismissal of other charges;

or

(B) make a recommendation, or agree not to

oppose the defendant’s request, for a particular

sentence, with the understanding that such rec-

ommendation or request shall not be binding upon

the court; or

(C) agree that a specific sentence is the appro-

priate disposition of the case.

The court shall not participate in any such dis-

cussions.

(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 t'\e agreement

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

camera, at the time the plea is offered. If the agree-

ment is of the type specified in subdivision (e) (1)

(A) or (C), the court may accept or reject the agree-

ment, or may defer its decision as to the acceptance

or rejection until there has been an opportunity to

consider the presentence report. If the agreement is

of the type specified in subdivision (e)(1)(B), the

court shall advise the defendant that if the court does

not accept the recommendation or request the de-

fendant nevertheless has no right to withdraw his plea.

(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

a

record, inform the parties of this 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 op-

portunity 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 con-

templated by the plea agreement.

(5) 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 con-

tendere 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 pres-

ence of counsel.

(f) Determining Accuracy of Plea. Notwithstanding

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

enter a judgment upon such plea without making such

inquiry as shall satisfy 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

a8 BS

be made and, if there is a plea of guilty or nolo con-

tendere, the record shall include, without limitation,

the court’s advice to the defendant the inquiry into

the voluntariness of the plea ncluding any plea agree-

ment, and the inquiry into the accuracy of a guilty plea.

§2 Principals.

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or

procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which

if directly performed by him or another would be an

offense against the United States, is punishable as a

principal. (As amended Oct. 31, 1951, ¢. 655, §17b, 65

Stat. 717.)

. * * * *

§2312. Transportation of stolen vehicles.

Whoever transports in interstate or foreign commerce

a motor vehicle or aircraft, knowing the same to have

been stolen, shall be fined not more than $5,000 or im-

prisoned not more than five years, or both.

§2313. Sale or receipt of stolen vehicles.

Whoever receives, conceals, stores, barters, sells, or

disposes of any motor vehicle or aircraft, moving as, or

which is a part of, or which constitutes interstate or

foreign commerce, knowing the same to have been

stolen, shall be fined not more than $5,000 or impris-

oned not more than five years, or both.

§2314. Transportation of stolen goods, securities, mon-

eys, fraudulent State tax stamps, or articles

used in counterfeiting.

Whoever transports in interstate or foreign commerce

any goods, wares, merchandise, securities or money,

sail

of the value of $5,000 or more, knowing the same to

have been stolen, converted or taken by fraud; or

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money

or property by means of false or fraudulent pretenses,

representations, or promises, transports or causes to

be transported, or induces any person to travel in, or

to be transported in interstate commerce in the exe-

eution or concealment of a scheme or artifice to de-

fraud that person of money or property having a value

of $5,000 or more; or

Whoever, with unlawful or fraudulent intent, trans-

ports in interstate or foreign commerce any falsely

made, forged, altered, or counterfeited securities or

tax stamps, knowing the same to have been falsely

made, forged, altered, or counterfeited ; or

Whoever, with unlawful or fraudulent intent, trans-

ports in interstate or foreign commerce any traveler’s

check bearing a forged countersignature; or

Whoever, with unlawful or fraudulent intent, trans-

ports in interstate or foreign commerce, any tool, im-

plement, or thing used or fitted to be used in falsely

making, forging, altering, or counterfeiting any secu-

rity or tax stamps, or any part thereof—

Shall be fined not more than $10,000 or imprisoned

not more than ten years, or both.

This section shall not apply to any falsely made, forged,

altered, counterfeited or spurious representation of an

obligation or other security of the United States, or of

an obligation, bond, certificate, security, treasury note,

bill, promise to pay or bank note issued by any foreign

government or by a bank or corporation of any for-

eign country.

illite

STATEMENT

Our guilty pleading petitioner is a spectacularly unsuc-

cessful car thief. In this era of fuel shortage(s) and the

OPEC countries continually raising fuel prices, our peti-

tioner was not appropriating economy cars. Rather, as

the record below reflects, the petitioner saw fit to appro-

priate Cadillacs, Lincolns, and Chevrolet Corvettes. The

government, always obedient to the cause, returned mul-

tiple count indictments, both in Atlanta, Georgia, and

Fort Worth, Texas.’ The petitioner, with counsel, appeared

in connection with both indictments in the Federal District

Court in Atlanta, Georgia on January 18, 1979.4 Both in-

dictments were before the court on a ‘‘change of plea

motion’’.5

3 In May, 1978, petitioner was charged in a five (5) count in-

dictment out of the US. District Court in Fort Worth, Texas,

with a series of §2312 violations. Each of the five (5) counts in-

volved a separate car (Cts. 1-3 .. Separate Lincoln Mark V cars,

and Cts. 4-5 . . 2 separate Cadillacs). This indictment was brought

to the trial judge in Atlamta, Georgia under Rule 20. The Atlanta

indictment, CR 78-233A was returned in 12 counts as follows:

Cts. 1-3, a Chevrolet Corvette under §2312 (Ct. 1), concealing

the same car under §2313 (Ct. 2), and a false title for the same

ear under §2314 (Ct. 3). A Lincoln ‘“‘Towncar’’ was pleaded in

Cts. 4-6. Ct. 4 charged a §2312 violation, Ct. 5 a §2313, and Ct.

6 a §2314. Another Corvette was pleaded in Cts. 7-8. The §2312

was Ct. 7 and the §2313 was Ct. 8. Cts. 9-11 involved a Lincoln

Mark V (Ct. 9, §2312); (Ct. 10, §2312); (Ct. 11, §2314). Ct. 12

charged a §2314 count which appears to be a duplicate of Count

11.

4 The Fort Worth indictment appears at R. 1 in Record #79-

5152. The Atlanta indictment is reproduced at R. 1 in Record

#79-5151.

5 79-5151 (R. 19-20); 79-5152 (R. 20). See also Tr. 2-4; Janu-

ary 18, 1979.

=

The Rule 11 guilty plea colloquy as between the trial

court and the petitioner is, in pertinent part, reproduced

as follows:

‘“‘THe Court: Are you thoroughly familiar with

the nature and the consequences of a plea of guilty in

these cases should I accept it?

Mr. Caston: Yes, sir.

THe Court: You understand that if I accept your

plea of guilty you don’t get a trial?

Mr. Caston: Right, I know it.

THe Court: You understand that you waive your

presumption of innocence and all your constitutional

protections, and all that you get is a sentence?

Mr. Caston: Yes, sir.

Tue Court: You understand?

Mr. Caston: Yes, sir.

Tue Court: And you still wish to plead guilty?

Mr. Caston: Yes, sir.

THe Court: And you understand that the maximum

sentence I might impose on each count of these in-

dictments is imprisonment of five years or a thousand

dollars fine or both, on each of them?

Mr. Casron: Yes, sir.

Tue Court: And how many counts are there, all

told? Six or seven?

Mr. Hirscu: Six on the indictment from here, Your

Honor ; and three on the other.

Tue Court: Nine Counts.

So that would be a total of forty-five thousand dol-

lars or forty-five years maximum. Do you understand

that?

Mr. Caston: Yes, sir.

Tue Court: And you still wish to plead guilty?

Mr. Caston: Yes, sir.

THe Court: Well, are you in fact guilty?

Mr. Caston: Yes.

THe Court: Tell us a little bit about what hap-

pened.

ae, ae

Mr. Caston: Well, I don’t know, some guys came

down here with some cars and got caught with them

and they said I helped them bring them down here,

said I sent them down here.

Tue Court: Well, you’re charged with transporting

across state lines, or concealing?

Miss Carnes: Both, Your Honor.

Mr. Hirscu: Both, Your Honor.

Miss Carnes: Both.

Tue Court: Well, did you know these cars were

stolen?

Mr. Caston: Yes, sir.

THE Court: And you did help them conceal them or

transport them or dispose of them.®

Mr. Caston: Yes.

Tuer Court: So, you’re guilty as charged?

Mr. Caston: Yes, sir.’’ (Tr. 6-8; January 18, 1979).

The guilty plea of January 18, 1979 is accepted by the

trial court and the parties reappeared for sentencing on

February 16, 1979. Prior to the imposition of sentence, the

court told the petitioner that if his guilty plea was ac-

cepted,’ the petitioner would not get a trial, would not get

to confront the witnesses against him and he would waive

his presumption of innocence . . and surrender ‘‘ALL OF

YOUR OTHER CONSTITUTIONAL PROTECTIONS’’

(February 16, 1979 at Tr. 15). Thereafter, the trial court

sentenced petitioner as follows:

6 Clearly there is a difference as between §2312 and §2313.

Petitioner agreed that he did help ‘‘conceal them ‘or transport

them or dispose of them’’. Thus, the ‘‘or’’ means that he was

simply agreeing with the judge t.at one or the other was true.

Rule 11 certainly compels a clearer factual basis than this (Cf.,

Rule 11(c) (3), (f)).

7 The trial judge had already accepted the ‘‘change of plea’’ on

January 18, 1979 (Tr. 8-10; January 18, 1979).

—12—

Atlanta Indictment, CR 79-233A.

Count 1 (Chevy Corvette) ($2312) .. five (5) years in

custody.®

Count 2 (Chevy Corvette) ($2313) .. five (5) years in

custody consecutive to Count 1.

Count 3 (Chevy Corvette) (§2314) . . dismissed after

filing notice of appeal (R. 23, 79-5151).

Count 4 (Lincoln Townear) ($2312) .. five (5) years in

custody consecutive to Count 2.

Count 5 (Lincoln Townear) ($2313) .. five (5) years in

custody consecutive to Count 4.9

Count 6 (Lincoln Towncar) ($2314) .. dismissed after

filing notice of appeal (R. 23, 79-5151).

Count 7 (Chevy Corvette) ($2312) .. five (5) years in

custody consecutive to Count 5.1°

Count 8 (Chevy Corvette) ($2313) . . dismissed after

filing notice of appeal (R. 23, 79-5151).

Count 9 (Lincoln Mark V) (§2312) . . five (5) years in

custody concurrent to Count 7.

Count 10 (Lincoln Mark V) ($2313) . . dismissed after

filing notice of appeal (R. 23, 79-5151).

Count 11 (Lincoln Mark V) ($2314) .. dismissed after

filing notice of appeal (R. 23, 79-5151).

Count 12 (Lincoln Mark V) ($2314) .. dismissed after

filing notice of appeal (R. 23, 79-5151).

8 Thus .. 10 years in custody for stealing, interstate, a Chevy

Corvette.

® Thus . . 10 years in custody for stealing, interstate, a Lincoln

Towncar. Total 20 years for stealing two (2) cars!!

10 Thus. . 25 years in custody for the interstate theft of three

(3) cars,

a

Fort Worth Indictuient, CR 4-78-83;

Docketed in Atlanta as CR 79-04A.

Count 1 (Lincoln Mark V) (§2312) .. five (5) years in

custody consecutive to Counts 7 and 9 of Indictment

78-233A.1

Count 2 (Lincoln Mark V) ($2312) .. five (5) years in

custody concurrent with Count 1 of the Fort Worth,

Texas, indictment.

Count 3 (Lincoln Mark V) ($2312) .. five (5) years in

custody concurrent with Count 2 of the Fort Worth,

Texas, indictment.

Counts 4 and 5 (Two (2) Cadillacs) ($2312) . . both

Counts dismissed after notice of appeal filed (R. 25,

#79-5152).

Petitioner is currently serving his thirty (30) year prison

sentence.

REASONS FOR GRANTING THE PETITION

1, This case presents important and reoccurring ques-

tions within the scope of administering criminal justice in

the federa! courts. It has been noted that in 1978 over 85

percent of ell federal convictions occurred on pleas of

guilty or nolo contendere.’2 Notwithstanding that the dis-

trict courts are beset with Rule 11 difficulties and pitfalls,

11 R, 23-25, #79-5152. Thus . . 30 years in custody for appro-

priating luxury cars, interstate.

12 1978 Annual Report of the Director, Administrative Office

of the United States Court, 114.

a

this Court has offered, in recent years, only the following

guidance;

‘*His only claim is of a technical violation of the rule.

That claim could have been raised on direct appeal,

see, McCarthy v. United States, 394 U.S. 459 [89 S.

Ct. 1166, 22 L.Ed.2d 418], but was not’’.18

2. The necessity for granting the petition now pre-

sented has recently been eschewed by many of the Circuit

courts. For example, in U.S. v. Dayton, 604 F.2d 931 (CA

5, 1979 (en banc) a majority of the Circuit Judges opted

for a Rule 11 theory suggesting that Rule 11 violations

could and would not support ‘‘per se’’ reversals—while

a winority of that court-—took umbrage with the majority

position as follows:

‘‘Such an approach to constitutional or non-constitu-

tional failure to comply with Rule 11 is diametrically

contrary to McCarthy’s holding that prejudice ‘‘in-

heres in a failure to comply with Rule 11.’’ It is not

meet for an inferior court to overrule Supreme Court

precedent, and we disavow any part in this venture’’

(604 F.2d at 950).

3. The lack of decisional certainty within the several

Circuits will be addressed, infra.

4, The petitioner asserts as a separate ground for

certiorari review that the ‘‘stacking or pyramiding”’ of the

sentences is prohibited by the Fifth Amendment as inter-

preted by the Court in, inter alia, Simpson v. U.S., 435 U.S.

6, 98 S.Ct. 909 (1978). In Simpson, the Court noted:

‘*The Double Jeopardy Clause ‘‘protects against mul-

tiple punishment for the same offense,’’ North Caro-

lina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076,

13 US. v. Timmreck, 441 US. ..., 99 S.Ct. 2085 at 2087 (1979).

pice:

23 L.Ed.2d 656 (1969), and prohibits multiple prose-

cutions for the ‘‘same offense,’’ Jeffers v. United

States, 482 U.S. 137, 150-51, 97 S.Ct. 2207, 2216, 53

L.Ed.2d 168 (1977)’’ (98 S.Ct. at 912, n.5)’’.

Similarly, in Sanabria v. U.S., 487 U.S. 54, 98 S.Ct. 2170

(1978), the Court precluded additional litigation finding

that same was proscribed by the Double Jeopardy Clause.

Justice Marshall noted:

‘“‘The Double Jeopardy Clause is not such a fragile

guarantee that ... its limitations [can be avoided] by

the simple expedient of dividing a single crime into

a series of temporal or spatial units,’’ Brown v. Ohio,

supra, 432 U.S., at 169, 97 S.Ct. at 2227, or, as we

hold today, into ‘‘discrete bases of liability’’ not de-

fined as such by the legislature. See id., at 169 n.

8,98 S.Ct. at 2227’’ (98 S.Ct. at 2183).

5. As the petitioner will point out, infra, the same

‘‘stacking’’ of counts as led to the thirty (30) years prison

sentence in this case, is clearly neither the law of the land,

nor the law of most of the Circuits. What the Court below

approves in this case, was a Carte-Blanche approach to

indictments wherein the prosecutor may freely isolate each

event within a transaction and cause a separate charge or

count to be pleaded . . thus exposing an accused to the

possibility of ‘‘stacking’’ . . lest this Court provide relief.

6. In Whalen v. U.S., ...... U.S. ......, 100 S.Ct. 1432 (1980)

the court vacated the consecutive sentences for murder

and rape finding the District of Columbia sentencing code

to be violative of the Double Jeopardy Clause where con-

secutive sentences were imposed for what appears to be a

lesser included offense (100 S.Ct. at 1438-1440) (Justices

White and Blackmun, concurring). The petitioner claims

similar sentencing improprieties as regarding 18 U.S.C.

§2312 / §2313.

_ e

ARGUMENTS SUPPORTING THE GRANT

OF CERTIORARI

I.

RULE 11 REVISITED

1. The record below shows that the petitioner was ad-

dressed by the trial court on January 18, 1979 . . at the

time the guilty plea was accepted and on February 16, 1979

.. prior to the imposition to sentence. Petitioner was not

told of his self-incrimination privilege were he to stand

trial (Rule 11(c)(2)(3)) nor that on a trial, his attorney

would have the right to summon witnesses on behalf of

the petitioner. Additionally, but not by way of limitation,

the rather sparse Rule 11 proceeding does not articulate

anything whatsoever relative to proof beyond a reasonable

doubt, the opportunity to have an unbiased jury, properly

instructed, with the benefit of closing arguments by his

own attorney to adjudicate guilty vel non. The McCarthy

doctrine was not articulated by the Court to sanction a

statement from the trial judge that Rule 11 is satisfied

where the trial court tells the petitioner that he would

be surrendering ‘‘all of your other constitutional protec-

tions’’ (January 18, 1979 at Tr. 6-8; February 16, 1979

at Tr. 15).

2. <A ‘‘per se’’ approach to Rule 11 was the direction

of this Court in McCarthy and Timmreck failed to alert

us to the contrary. Some Circuit approaches yet yield a

‘*ner se’’ Rule 11 approach. Both the First Cireuit [U.S.

v. Wazbeck, 524 F.2d 641 (CA 1, 1975)] and the Second

Cireuit [U.S. v. Journet, 544 F.2d 633 (CA 2, 1976);

— |)

Alessi v. U.S., 593 F.2d 476 (CA 2, 1979)], strictly con-

strue McCarthy . . based on cases involving a direct ap-

peal. The Third Circuit is none the different [Horsley v.

U.S., 583 F.2d 670 (CA 3, 1978)]. Both the Fifth and

Seventh Circuits have recently relegated Rule 11 .. on di-

rect appeal . . to something substantially less than the

McCarthy ‘‘per se’’ approach.14 The Ninth Circuit has

recently found Rule 11 violations to be sufficiently cov-

ered by McCarthy so as to warrant vacation of a guilty

plea before a Federal Magistrate, U.S. v. Lopez-Beltram,

607 F.2d 1223 at 1225 (CA 9, 1979). The synthesis of

these decisions demonstrate the present decisional disarray

within the Cireuits.15 This conflict, aliwnde, supports the

suggestion that certiorari is appropriate to resolve the

present conflicts.

3. The indictments below’? show that in each of the

counts in the Atlanta indictment petitioner was charged

with both violations of §2312-§2315 and $2. The trial court

certainly declined to take any opportunity to explain any-

thing as regarding aiding and abetting . . although this

Court has recently granted review to ascertain the para-

meters of liability under 18 U.S.C. §2.18 We suggest

there is an alarming confusion as regarding extended

14 U.S. v. Dayton, 604 F.2d 931 (CA 5, 1979 (en banc). (Cert.

denied 100 S.Ct. 1080) ; U.S. v. Gray, 611 F.2d 194 (CA 7, 1979).

15 We hasten to point out that the Fifth Circuit, pre-Dayton,

was a ‘‘pure’’ “‘per se’’ Rule 11 Circuit, U.S. v. Boatright, 588

F.2d 471 (CA 5, 1978) ; U.S. v. Hart, 566 F.2d 977 (CA 5, 1978).

16 The Sixth Circuit seems to have retained a ‘‘per se’’ ap-

proach as regarding Rule 11, Phillips v. U.S., 519 F.2d 483 (CA

6, 1977). The Seventh Circuit reads Phillips ‘with approval, U.S.

v. Gray, 611 F.2d at 201-202 (CA 7, 1979).

17 R. 1, #79-5151; and R. 2, #79-5152.

18 Cf, U.S. v. Standefer, ... U.S. ..., 100 S.Ct. 658 (1980).

a

criminal liability, cf., U.S. v. Pearlstein, 576 F.2d 531 (CA

3, 1978), U.S. v. Knife, 592 F.2d 472 (CA 8, 1979). The

transcriptional record, in this case, both January 18, 1979,

and February 16, 1979 does not disclose any description

as to whether or not the petitioner at all understood any-

thing whatsoever to do with the extended liability con-

siderations of 18 U.S.C. §2. Further, we point out, that

both reasonable doubt and the right not to be ‘‘self-in-

criminated’’ at trial are ‘‘core’’ rights as are the right to

have counsel at trial. These Rule 11 directives were not

part of the transcripts below and these omissions . . under

the facts of this litigation, bring this petition well beyond

the bounds of ‘‘harmless error’’—if that doctrine, is at all

cognizable, on a direct-appeal, Rule 11 appeal.

4, Assuming McCarthy stands for per se reversal on

the direct appeal from Rule 11 deficiencies, and assuming

further, that Timmreck is applicable only to collateral at-

tacks on Rule 11 deficiencies, then the petitioner must be

granted relief. Timmreck said:

‘‘His only claim is of a technical violation of the Rule.

That claim could have been raised on direct appeal,

see McCarthy v. U.S., (cite omitted), but was not’’

(411 U.S. at ......, 99 S.Ct. at 2087 (1979).)

Timmreck did not offer any insight into according Mc-

Carthy a prophylactic approach to Rule 11 deficiencies . .

where the claims of error are presented on direct appeal.

I.

IMPERMISSIBLE CONSECUTIVE SENTENCING

Petitioner views his thirty (30) year sentence as con-

stitutionally impermissible in that the trial court ‘‘stacked”’

or pyramided the units of punishment where the under-

a A

lying events failed to warrant same.'9 Petitioner means

that the sentencing was impermissible because the overall

conduct was, in reality, but a single offense. This Court

has condemned the segregating or separating of the of-

fense . . into small temporal units . . for double jeopardy

purposes, as follows:

‘‘The Double Jeopardy Clause is not such a fragile

guarantee that ... its limitations [can be avoided]

by the simple expedient of dividing a single crime into

a series of temporal or spatial units.’’ Brown v. Ohio,

supra, 432 U.S. at 169, 97 S.Ct. at 2227, or, as we hold

today, into ‘‘discrete basis of liability’’ not defined as

such by the legislature. See id., at 169 n. 8, 97 S.Ct.

at 2227’’ (98 S.Ct. at 2183) 2°

In Simpson v. U.S., 435 U.S. 6, 98 S.Ct. 909 (1978) the

Court vacated a portion of the bank robbery sentence,

same being enhanced because a deadly weapon was used

in the commission of the bank robbery. The Court, while

finding the consecutive sentence impermissible, noted:

‘‘The Double Jeopardy Clause ‘‘protects against mul-

tiple punishment for the same offense,’’ North Caro-

lina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076,

23 L.Ed.2d 656 (1969), and prohibits multiple prose-

cutions for the ‘‘same offense,’’ Jeffers v. United

States, 432 U.S. 137, 150-151, 97 S.Ct. 2207, 2216, 53

L.Ed. 2d 168 (1977)’’ (98 S.Ct. at 912, n. 5).

The substance of petitioner’s position is that there is

simply no reason, within the parameters of this particular

case, for the imposition of consecutive sentences. Assum-

19 The factual basis for the §2313 counts are all but non-existent.

20 Sanabria v. U.S., 487 US. 54, 98 S.Ct. 2170 (1978). In

Sanabria the Court declined the government’s invitation to con-

tinue the litigation after the trial court had erroneously entered

a mid-trial judgment of acquittal.

— oe

ing, arguendo, that the petitioner stole and transported,

from state to state, a luxury car .. then surely, the peti-

tioner concealed the car that had previously been stolen.

It is most unlikely that the petitioner put a sign on any of

these luxury cars stating ‘‘that is a stolen car’’.2’ In addi-

tion, there remains little question that concealment is, or

was, a lesser included offense thus proscribing consecu-

tive punishment for a single act (transporting and con-

cealing).

1. We reproduce hereafter some Circuit decisions albeit

they relate to statutes other than 18 U.S.C. $2312-§2314.

The Circuit decisions hereafter noted are based on prece-

dents of this Court. In U.S. v. Edick, 603 F.2d 772 (CA

9, 1979) the Court declined to affirm the imposition of con-

secutive sentences for weapon violations under 26 U.S.C.

§5861 (id. at 773). The Court concluded that the imposi-

tion of consecutive sentences for the single weapon vio-

lation impermissibly ‘‘pyramided’’ the punishment in that

the multiple offenses arose from the same transaction (id.

at 774). The Court found Prince v. U.S., 352 U.S. 322, 77

S.Ct. 503 (1957) . . as dispositive authority. Within the

realm of drug related offenses courts have likewise pre-

cluded the imposition of consecutive sentences where the

same event or transaction gave rise to multiple [alleged]

offenses. In Goodson v. U.S., 564 F.2d 1071 (CA 4, 1977)

the Court vacated the consecutive sentence for distribution

of heroin where the evidence revealed that both the pos-

21 We must refer back to our Rule 11 deficiency argument, ante.

There is simply nothing to support a factual basis for the §2313

counts for which the petitioner received consecutive sentences

totalling twenty (20) years. In that the §2314 counts were dis-

missed we have no occasion to consider any factual basis argu-

ment as to those counts.

en

session and distribution were within the realm of a single

transaction. The imposition of the consecutive sentence

was proscribed by Prince v. U.S., ante (id. at 1073). More

recently the Court of Appeals for the Fifth Circuit, en

banc, came to a similar conclusion in U.S. v. Hernandez,

591 F.2d 1019 (CA 5, 1979) (en banc). That Court, relying

on both Bell v. U.S., 349 U.S. 81, 75 S.Ct. 620 (1955) and

Prince v. U.S., ante, concluded that possession and dis-

tribution offenses under 21 U.S.C. §841(a)(1) could not

sustain consecutive sentences where the same basic trans-

action gave rise to both the distribution and the possession

offenses. The Hernandez Court pointed out that consecu-

tive sentencing was proscribed by most Circuits and some

Circuits even proscribed separate concurrent sentences

(decisions cited at 591 F.2d 1021).22

The Circuit disarray as to the application of 18 U.S.C.

App. §1202(a)(1) is found in U.S. v. Bullock, 615 F.2d 1082

(CA 5, 1980). In Bullock the Court affirmed consecutive

sentences for the impermissible possession of certain fire-

arms while pointing out that the Sixth, Seventh and Eighth

Circuits do not allow consecutive sentencing for the simul-

taneous possession of separate firearms (id. at 1084).28

22 For the sake of brevity the Fourth and Ninth Circuits pro-

scribe consecutive sentences while the Sixth and Tenth Circuits

proseribe even separate concurrent sentences (591 F.2d at 1021,

n. 4-8 . . collecting cases.

23 The Sixth Circuit in U.S. v. Rosenbarger, 536 F.2d 715 (CA

6, 1976) held that there was a single offense under §1202(a) (1)

regardless of the number of firearms involved. The Seventh Cir-

euit in U.S. v. Calhoun, 510 F.2d 861 (CA 7, 1975) held that

for sentencing purposes there was a single offense where two

(2) firearms were charged. The Eighth Circuit, in U.S. v. Kinsley,

518 F.2d 665 (CA 8, 1976) came to the same conclusion where

(footnote continued on following page)

---22—

In U.S. v. Seals, 545 F.2d 26 (CA 7, 1979) the Court

proscribed consecutive or cumulative sentencing, after a

guilty plea, where the underlying offenses were charged

under both 18 U.S.C. $1708 and 18 U.S.C. $2114. The Court

found that possessing the same stolen mail that had been

taken from the postal employee did not amount to the type

of separate offense which could be the subject of cumula-

tive punishment. The Seventh Circuit found as proposi-

tional authority the decisions in Heflin v. U.S., 358 U.S.

415, 79 S.Ct. 451 (1959), Milanovich v. U.S., 365 U.S. 551,

81 S.Ct. 728 (1961) and U.S. v. Gaddis, 424 U.S. 544, 96

S. Ct. 1028 (1976).24 In U.S. v. Stavros, 597 F.2d 108 (CA

7, 1979) the Court remanded sentencing errors raised for

the first time, on appeal (id. at 111). The Court found that

it was impermissible to pyramid sentences for alleged vio-

lations of 26 U.S.C. §4401, $4412 and $7203. The Court’s

reasoning, while vacating certain of the sentences on double

jeopardy grounds, is persuasive. The Court in Stavros

stated :

‘‘While double jeopardy as prohibited by the Fifth

Amendment is ordinarily thought of in terms of a

second trial following either a conviction or acquittal

in a first trial involving the same offense, there are

certainly overtones of double jeopardy if a court ex-

23 Continued

four (4) different weapons were found. That Court proscribed

consecutive sentences for the §1202(a)(1) offenses. The Fifth

Circuit, in Bullock, ante, while affirming the consecutive sentences

noted that the Circuit had not earlier directly ruled on the ques-

tion of consecutive sentences in §1202 cases.

24 In Seals a former member of this Court, Associate Justice

Tom C. Clark participated, by designation. In Heflin, ante, Jus-

tice Clark concurred, 358 US. at 426; In Milanovich, Justice

Clark dissented suggesting that the cure was in resentencing,

not the grant of a new trial, 365 U.S. at 562-565. Petitioner sug-

gests that the participation of Justice Clark in Seals, ante, dem-

onstrates the thoughtful analysis included in the Seals opinion.

ee ST

_

ceeds its legislative authorization by imposing mul-

tiple punishments for the same offense. See Brown

v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d

187 (1977).

If the same act or transaction violates two distinct

statutes, then punishment for violation of both stat-

utes violates the double jeopardy clause unless each

offense requires proof of a fact not required by the

other. Simpson v. United States, 435 U.S. 6, 98 S.Ct.

909, 55 L.Ed.2d 70 (1978); Gore v. United States, 357

US. 386, 78 S.Ct. 1280, 2 L.Ed. 2d 1405 (1958) ; Block-

burger v. United States, 284 U.S. 299, 52 S.Ct. 180,

76 L.Ed. 306 (1932); United States v. Mathis, 579 F.

2d 415 (7th Cir., 1978).

It follows from the Supreme Court’s longstanding test

that punishment both for an offense and a lesser in-

cluded offense violates double jeopardy. By definition,

a lesser included offense contains some, but not all

of the elements of the greater offense, and has no

elements in addition to those of the greater offense.

The offenses are therefore the same for the purpose

of double jeopardy. See Brown v. Ohio, supra, 432 U.S.

at 168, 97 S.Ct. 2221’? (597 F.2d at 111-112).

2. As we understand the Court’s decision in U.S. v.

Gaddis, 424 U.S. 544 (1976) the petitioner at bar may have

the benefit of the consecutive sentences vacated, and the

cause remanded for resentencing, assuming, arguendo, that

the Court declines to grant relief on the Rule 11 argument

herein proffered.

_—

CONCLUSION

The petitioner, Osban Caston, respectfully prays that the

Court grant this Petition for Writ of Certiorari as to both

questions and arguments presented and thereafter vacate

the convictions and sentences and remand this matter for

proceedings not inconsistent with the desired relief.75

Respectfully submitted,

ALLAN A. ACKERMAN, ESQ.

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

(312) 332-2863

Attorney for Petitioner,

Ospan Caston

25 The petitioner, below, raised no realistic Eighth Amendment

attack on the thirty (30) year prison sentence. The Court, of

course, is welcome to consider that Argument by way of plain

error, but we are aware of Rummel v. Estelle, ... US. ..., 100

S.Ct. 1133 (1980) (Justices Powell, Brennan, Marshall and Stevens,

dissenting).

In Whalen v. US. ... US. ..., 100 S.Ct. 1432 (1980) the

Court vacated certain consecutive sentences while reviewing the

parameters of Fifth Amendment protections . . in sentencing-

double jeopardy situations. In reality the instant petition may

present a strikingly similar situation.

—_—

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

v.

Osban CASTON, Defendant-Appellant.

Nos. 79-5151, 79-5152.

United States Court of Appeals,

Fifth Circuit.

April 24, 1980.

Defendant pled guilty in the District Court for the North-

ern District of Georgia, Newell Edenfield, J., to charges of

transporting stolen automobiles in interstate commerce and

concealing and selling stolen automobiles and he appealed.

The Court of Appeals, Vance, Circuit Judge, held that:

(1) trial court’s failure to explicitly mention to defendant

in accepting his guilty plea that he had right to a jury,

right to assistance of counsel at trial, right not to be forced

to incriminate himself, and that his sworn answers to

court’s questions about his offenses could be admitted

against him in a later perjury or false statement prosecu-

tion did not require reversal, where trial court ascertained

that defendant elected to plead guilty without coercion,

comprehended the charges against him, and understood the

consequences of his plea, and (2) convictions for trans-

porting in interstate commerce a stolen motor vehicle and

for concealing and selling the same motor vehicle required

proof of different sets of facts, and, therefore, consecutive

sentences imposed by district judge were not barred by

double jeopardy clause of the Fifth Amendment.

Affirmed.

1. Criminal Law—1166(3)

Trial court’s failure to specifically mention to defendant

in accepting his guilty plea that defendant had right to a

—

jury, right to assistance of counsel at trial, right not to be

forced to incriminate himself or that his sworn answers

to court’s questions about his offenses could be admitted

against him in a later perjury or false statement prosecu-

tion was harmless error and did not require reversal, where

trial court ascertained that defendant elected to plead guil-

ty without coercion, comprehended the charges against him,

and understood the consequences of his plea. Fed.Rules Cr.

Proce. Rule 11(¢), 18 U.S.C.A.

2. Criminal Law—273.1(4)

While Constitution requires that in accepting defendant’s

guilty plea record indicate voluntariness of his waiver of

rights of jury trial, confrontation, and non-self-incrimina-

tion, it does not require that the district judge go beyond

such constitutional minima to ask specific questions that

federal rule dealing with advice to be given to a defendant

before accepting his guilty plea imposes as a prophylactic

procedure. Fed.Rules Cr.Proe. Rules 11, 11(¢c){3), 18

U.S.C.A.; U.S.C.A. Const. Amend. 5.

3. Criminal Law—1166(3)

District judges should scrupulously follow procedures

under rule dealing with advice to be given to a defendant

before accepting his guilty plea, but their occasional and

lamentable shortcomings do not invoke automatic reversal

if defendant’s waiver of constitutional rights to trial by

jury, to confrontation of his accusers, and against com-

pulsory self-incrimination is shown to be voluntary and

intelligent. Fed.Rules Cr.Proe. Rules 11, 11(c)(3), 18

U.S.C.A.; U.S.C.A.Const. Amend. 5.

4. Criminal Law—273.4(1)

Jury—29 (6)

Defendant voluntarily and intelligently waived his jury

trial and self-incrimination rights, although trial court did

not in accepting his guilty plea inform him of his right

to a jury, right to assistance of counsel at trial, right not

to be forced to incriminate himself, or that his sworn an-

swers to court’s questions about his offenses could be ad-

—

mitted against him in a later perjury or false statement

prosecution. Fed.Rules Cr.Proe. Rules 11, 11(¢)(3, 5), 18

U.S.C.A.; U.S.C.A.Const. Amend. 5.

5. Criminal Law—273.1(4)

Rule requiring that in accepting defendant’s guilty plea

defendant be informed that his sworn answers to court’s

questions about his offenses may be admitted against him

in a later perjury or false statement prosecution was added

to assure fairness of a subsequent perjury prosecution, not

the voluntariness of the plea. Fed. Rules Cr.Proc. Rule

11(¢)(5), 18 U.S.C.A.

6. Criminal Law—1166(3)

Failure to inform defendant that his sworn answers to

court’s questions about his offenses may be admitted

against him in a later perjury or false imprisonment pros-

ecution does not mandate automatic reversal of guilty plea.

Fed.Rules Cr.Proec. Rule 11(c)(5), 18 U.S.C.A.

7. Criminal Law—1166(3)

Where defendant was not being prosecuted for perjury

and conceded that trial court’s error in failing to advise

him before accepting his guilty plea that his sworn an-

swers to court’s questions about his offenses could be ad-

mitted against him in a later perjury or false statement

prosecution was not prejudicial, such error did not war-

rant reversal under harmless error standard. Fed.Rules

Cr.Proc. Rule 11(¢c)(5), 18 U.S.C.A.

8. Criminal Law—1210

Cumulative punishment, consistent with double jeopardy

clause, may be imposed for acts constituting violations of

two separate statutory provisions, as long as each provi-

sion requires proof of an additional fact which the other

does not. U.S.C.A.Const. Amend. 5.

9. Criminal Law—280(1)

Convictions for transporting in interstate commerce a

stolen motor vehicle and for concealing and selling same

motor vehicle required proof of different sets of facts, and,

—

therefore, consecutive sentences imposed by district judge

for such convictions were not barred by double jeopardy

clause of Fifth Amendment. 18 U.S.C.A. §§ 2312, 2313;

U.S.C.A.Const. Amend. 5.

Russell Hirsch, Allan A. Ackerman, Chicago, IIl., for

defendant-appellant in both cases.

Charles S. Saphos, Asst. U. S. Atty., Atlanta, Ga., for

plaintiff-appellee in both cases.

Appeals from the United States District Court for the

Northern District of Georgia.

Before Vance, Pouitz and Ranpa, Circuit Judges.

Vance, Circuit Judge:

Osban Caston, a professional car thief on parole for a

prior offense, was indicted on May 31, 1978, in the North-

ern District of Texas and on September 5, 1978, in the

Northern District of Georgia. In the Georgia indictment,

Caston was charged with twelve counts of violating 18

U.S.C. §§ 2, 2312, 2313, and 2314 by transporting stolen

automobiles in interstate commerce, causing stolen auto-

mobiles to be transported in interstate commerce, conceal-

ing and selling stolen automobiles, causing stolen auto-

mobiles to be concealed and sold, and knowingly causing

counterfeited automobile certificates of title to be trans-

ported in interstate commerce. Similarly, the five-count

Texas indictment charged Caston with causing stolen auto-

mobiles to be transported in interstate commerce in viola-

tion of 18 U.S.C. §§ 2 and 2312. In January 1979, the Texas

case was transferred to the Northern District of Georgia

under Fed.R.Crim.P. 20. A plea bargain agreement was

negotiated. Caston, who had previously entered a plea

of not guilty, then pleaded guilty to six counts of the

Georgia indictment and three counts of the Texas indict-

_ ment; the other counts were dismissed. The district judge

sentenced Caston to five years confinement under each

a

count with some sentences running concurrently and some

consecutively; the total sentence was 30 years.

Caston apparently did not like the way his plea bargain

turned out, and he appealed his conviction to this court.

He argues that his guilty plea should be set aside because

in accepting his guilty plea, the district court did not com-

ply fully with the requirements of Fed.R.Crim.P. 11. He

next asserts that the consecutive sentences imposed by the

district judge were barred by the double jeopardy clause

of the fifth amendment. Although the first question is a

close one, we affirm.

I.

Caston contends that the trial judge did not give him

the advice or information required by Fed.R.Crim.P. 11

(c)(3) and 11(c)(5)1 before accepting his guilty plea. The

record? indicates that the trial court did not explicitly

1 Fed.R.Crim.P. 11(¢) provides in pertinent part,

(a) Advice to defendant. Before accepting a plea of guilty or

nolo contendere, the court must address the defendant person-

ally in open court and inform him of, and determine that he un-

derstands the following:

(3) that he has 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-ex-

amine witnesses against him, and the right not to be com-

pelled to incriminate himself; and

(5) 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 or false

statement.

2 On January 18, 1979, before the trial court accepted Caston’s

plea, the following exchange occurred:

(footnote continued on following page)

—

2 Continued

CuerK: Raise your right hand, sir.

Do you solemnly swear that the statements you shall make

to the Court at this time shall be the truth, the whole truth

and nothing but the truth, so help you God?

Mr. Caston: Yes, I do.

THE Court: Mr. Caston, let me ask you a few questions.

You are fully aware and familiar with the charges against

you in both of these indictments?

Mr. Caston: Yes, sir.

THE Court: Have you discussed them with your attorney,

Mr. Hirsch ?

Mr. Caston: Yes, sir.

THE Court: And you want us to dispose of it here on this

plea of guilty?

Mr. Caston: Yes, sir.

Tue Court: Are you thoroughly familiar with the nature

and consequences of a plea of guilty in these cases should J

accept it?

Mr. Caston: Yes, sir.

Tre Court: You understand that if I accept your plea of

guilty you don’t get a trial?

Mr. Caston: Right. I know it.

THe Court: You understand that you waive your pre-

sumption of innocence and all your constitutional protections,

and all that you get is a sentence?

Mr. Caston: Yes, sir.

THe Court: You understand?

Mr. Caston: Yes, sir.

THe Court: And you still wish to plead guilty?

Mr. Caston: Yes, sir.

Tue Court: And you understand that the maximum sen-

tence I might impose on each count of these indictments is

imprisonment of five years or a thousand dollars fine or both,

on each of them?

Mr. Caston: Yes, sir.

Tue Court: And how many counts are there, all told?

Six or seven?

Mr. Hirscu: Six on the indictment from here, Your Hon-

or; and three on the other.

THE Court: Nine counts.

(footnote continued on following page)

—

2 Continued

So, that would be a total of forty-five thousand dollars or

forty-five years maximum. Do you understand that?

Mr. Caston: Yes, sir.

Tue Court: And you still wish to plead guilty?

Mr. Caston: Yes, sir.

THe Court: Well, are you in fact guilty?

Mr. Caston: Yes.

Tue Court: Tell us a little bit about what happened.

Mr. Caston: Well, I don’t know, some guys came down

here with some cars and got caught with them and they said

I helped bring them down here, said I sent them down here.

THe Court: Well, you’re charged with transporting across

state lines, or concealing ?

Miss CarNngEs: Both, Your Honor.

Mr. HirscH: Both, Your Honor.

Miss Carnes: Both.

THE Court: Well, did you know these cars were stolen?

Mr. Caston: Yes, sir.

THe Court: And did you help them conceal them or trans-

port them or dispose of them?

Mr. Caston: Yes.

THE Court: So, you’re guilty as charged?

Mr. Caston: Yes, sir.

The judge also questioned Caston during the February 16, 1979,

sentencing procedures:

Tue Court: Are you thoroughly familiar with the nature

of the charges pending against you?

Mr. Caston: Yes, sir.

THE CourT: There are nine counts here in two separate

indictments of interstate transportation of stolen automobiles.

You’re familiar with that?

Mr. Caston: Yes, sir.

THe Court: That’s the ones you pled guilty to, and

there’s an agreement that some others are to be dropped?

Mr. Caston: Yes, sir.

THE Court: Now, are you also thoroughly familiar with

the nature and the consequences of a plea of guilty to these

nine counts if I accept your plea of guilty?

Mr. Caston: Yes, sir.

THE Court: You know what the consequences and effect

of that are?

Mr. Caston: Yes, sir.

(footnote continued on following page)

ae :

mention that Caston had the right to a jury, the right to

the assistance of counsel at a trial, and the right not to be

forced to incriminate himself at trial, disclosures required

by Fed.R.Crim.P. 11(c)(3), or that his sworn answers to

2 Continued

THE Court: You understand that if I accept these pleas

of guilty, you don’t get a trial?

Mr. Caston: Yes, sir.

THe Court: You do not get the right to confront the

witnesses against you; you waive your presumption of in-

nocence—

Mr. Caston: Yes, sir.

THe Court: —and surrender all of your other constitu-

tional protections?

In fact, all you get on a plea of guilty to these nine counts

is a sentence on each one of them. Do you understand that?

Mr. Caston: Yes, sir.

THe Court: Do you understand that the maximum pen-

alty I might impose is five years in prison or five thousand

dollars fine on each of these nine counts?

Mr. Caston: Yes, sir.

Tue Court: Well, now, and you still wish to plead guilty?

Mr. Caston: Yes, sir.

THE Court: Well, are you in fact guilty?

Mr. Caston: Yes, sir.

THe Court: In all nine instances?

Mr. Caston: Yes, sir.

THe Court: What were you in, an automobile theft ring

of some sort, as charged, set out in the presentence report?

Mr. Caston: Yes, sir.

Tue Court: Has anybody promised you anything in the

way of leniency or recommendations or anything of any char-

acter whatsoever—

Mr. Caston: No, sir.

THE Court: —to cause you to enter these pleas?

Mr. Caston: No, sir.

THe Court: Or tender these pleas?

Mr. Caston: No, sir.

THe Court: Do you enter them freely and voluntarily,

of your own free will and accord?

Mr. Caston: Yes, sir.

THe Court: All right. I’ll accept your plea of guilty to

the nine counts involved.

—

the court’s questions about his offenses could be admitted

against him in a later perjury or false statement prosecu-

tion, a disclosure required by Rule 11(c)(5). Caston does

not claim that he was prejudiced in any way by these omis-

sions, but asserts that they are per se bases for reversal.

In United States v. Dayton, 604 F.2d 931 (5th Cir. 1979)

(en banc), however, this court held that not every viola-

tion of Rule 11 mandates automatic reversal.

The Supreme Court declared in McCarthy v. United

States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969),

that ‘‘a defendant is entitled to plead anew if a United

States district court accepts his guilty plea without fully

adhering to the procedure provided for in Rule 11.’’ 7d.

at 463-64, 89 S.Ct. at 1169.3 The 1966 version of Rule 11 in

effect when McCarthy was decided was a relatively simple

pronouncement containing less than one teuth as many

words as the version we review today. United States v.

Dayton, 604 F.2d at 936. In Dayton this court reasoned

that the automatic reversal rule of McCarthy should be

invoked when a trial court wholly fails to address any of

the three core considerations embodied in the 1966 rule,

lack of coercion, comprehension of the charge and knowl-

edge of the plea’s direct consequences, but that a harmless

error standard, Chapman v. California, 386 U.S. 18, 87 S.Ct.

824, 17 L.Ed.2d 705 (1967), applies to ‘‘inadequate ad-

dresses’’ of these three core inquiries or to unconnecied

‘‘econstitutional errors’’ that arise from Rule 11 proceedings.

604 F.2d at 939. We explained,

We have held that the rule must be fully and faith-

fully followed, and we do not doubt that the district

courts of this circuit will make all efforts to follow

our mandate. The question here is not whether such

efforts should be made but how we should appraise

them when they are. Nothing from above requires us

to view fallings off from post-McCarthy additions to

3 The court reached that result as a matter of statutory con-

struction, not as a point of constitutional mandate. 7d. at 464,

465, 89 S.Ct. at 1169, 1170.

—10a—

the rule as meriting automatic reversal, and we de-

cline to do so. Where each of Rule 11’s core inquiries

has been reasonably implicated in the rule’s required

colloquy, we will examine its treatment to determine

whether it has been sufficiently exposed to inquiry and

determination. If so, we will not disturb the result.

As for post-McCarthy additions to the rule—many, if

not all, of which require determinations of fact that

ean scarcely be described as ultimate—nothing would

prevent the trial court from making each the subject

of a factfinding. Should it do so, we would review them

in accordance with the clearly erroneous rule and that

of harmless error, as in the case of any other finding

by a trial judge sitting in a criminal case where a

jury has been waived.

Id. at 940. |

[1-4] We reject Caston’s contention that the Rule 11

(c)(3) omissions require reversal. The district judge ade-

quately addressed the three core considerations of Rule 11

under McCarthy. He asked numerous questions about

whether Caston had elected without coercion to plead guilty

and whether he comprehended the charges against him. The

judge asked Caston if he understood that by pleading

guilty he waived his right to a trial, his presumption of

innocence, his right to confront the witnesses against him,

and all his constitutional rights. He told Caston that he

would not get a trial, only a sentence, and described the

maximum possible penalties for the offenses. He repeated-

ly gained assurance that Caston was familiar with the

nature and consequences of a guilty plea. See note 2 supra.

Caston had changed his original plea of not guilty to a

guilty plea pursuant to a plea bargain agreement. He was

an experienced defendant and was actively represented by

counsel during the plea proceedings. We are convinced

from the record that Caston understood his alternatives

and the rights he was waiving. Cf. Kloner v. United States,

535 F.2d 730, 733-34 (2d Cir.), cert. denied, 429 U.S. 942,

97 S.Ct. 361, 50 L.Ed.2d 312 (1976) (relief sought under

28 U.S.C. § 2255). See generally North Carolina v. Alford,

—lla—

400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970);

Wilkins v. Erickson, 505 F.2d 761, 763-64 (9th Cir. 1974);

United States v. Sherman, 474 F.2d 303, 305 (9th Cir.

1973). Although the trial judge did not comply adequately

with Rule 11(c)(3), we find that he did sufficiently deter-

mine that Caston understood the direct consequences of his

plea including his waiver of certain constitutional rights.

See United States v. Dayton, 604 F.2d at 942-43.4 Caston

4 The Supreme Court held in Boykin v. Alabama, 395 U.S. 238,

89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), that, for a guilty plea to

be voluntary, waiver of a defendant’s constitutional rights to

trial by jury, to confrontation of his accusers, and against com-

pulsory self-incrimination must be disclosed by the record and

cannot be presumed ‘‘from a silent record.’’ Jd. at 243-44, 89 S.

Ct. at 1712-13. The court did not say, however, that waiver must

affirmatively appear as long as the record is not silent. See

Summers v. United States, 538 F.2d 1208, 1209-10 & n. 1 (5th

Cir. 1976); United States v. Frontero, 452 F.2d 406, 415 (5th

Cir. 1971). It found on the facts of that case that ‘‘there was

reversible error ‘because the record does not disclose that the

defendant voluntarily and understandingly entered his pleas of

guilty.’ ’’ Id. 395 U.S. at 244, 89 S.Ct. at 1713 (quoting Boykin

v. Alabama, 281 Ala. 659, 663, 207 So.2d 412, 415 (1968) (dis-

senting opinion) ). While the Constitution thus requires that the

record indicate the voluntariness of any waiver of these three

rights of jury ‘trial, confrontation, and non-self-incrimination, it

does not require that the district judge go beyond these ‘‘con-

stitutional minima,’’ United States v. Dayton, 604 F.2d at 935

n.2, to ask the specific questions that Rule 11(c)(3) imposes as

a prophylactic procedure. A defendant’s waiver of those three

rights very well might be voluntary and intelligent without com-

pliance with the prophylactic safeguard of Rule 11(c)(3). Boy-

kin requires reversal if the record does not disclose that the

defendant voluntarily and understandingly entered his pleas of

guilty, but not if the record discloses voluntary and intelligent

waiver without the prophylactic questions under Rule 11(c) (3).

District judges should scrupulously follow the procedures under

Rule 11(¢) (3), but their occasional and lamentable shortcomings

do not invoke the automatic reversal rule of Boykin if the defend-

ant’s waiver is nevertheless shown to be voluntary and intelligent.

Caston does not contend that he was unaware of his rights to

jury trial, to confrontation, against self-incrimination, and to

(footnote continued on following page)

—12a—

does not claim that he was injured by the court’s failure

to comply with Rule 11(c)(3); therefore, the error was

harmless beyond a reasonable doubt and does not merit

reversal. See Chapman v. Calsfornia, 386 U.S. at 21-22,

87 S.Ct. at 826-27.

[5-7] We also reject Caston’s argument that the Rule

(c)(5) omission demands reversal. Although his point is

clearly supported by our panel holding in United States

v. Boatright, 588 F.2d 471, 475 (5th Cir. 1979), the auto-

matic reversal requirement in Boatriyht is no longer viable

in the wake of our en bane decision in Dayton. See 604 F.

2d at 941. Rule 11(c)(5) was added in 1975 to assure the

fairness of a subsequent perjury prosecution, not the vol-

untariness of the plea. Umted States v. Conrad, 598 F.2d

506, 508-09 (9th Cir. 1979); United States v. White, 572 F.

2d 1007, 1009 n.4 (4th Cir. 1978). Because it is not one of

the core inquiries under Rule 11, its omission does not

mandate automatic reversal. United States v. Conrad, 598

F.2d at 509; see United States v. Dayton, 604 F.2d at 939-

40. Caston is not being prosecuted for perjury and con-

4 Continued

counsel. He does not suggest that he was unaware that a guilty

plea necessarily waived those rights. The district judge asked

whether Caston understood that ‘‘you don’t get a trial’’ and

‘*fyjou do not get the right to confront the witnesses against

you,’’ see note 2 supra; Caston obviously understood that he had

the right to the assistance of counsel. The judge also asked

whether Caston knew the language of pre-McCarthy Rule 11,

and whether he ‘‘underst[oo]d that you waive .. . all your con-

stitutional protections.’’ See id. The Supreme Court said in Mc-

Carthy, ‘‘The nature of the inquiry required by Rule 11 must

necessarily vary from case to case....’’? 394 U.S. at 467, 89

S.Ct. at 1171. In light of the circumstances of this case, we be-

lieve that the record indicates that Caston voluntarily and intel-

ligently waived his jury trial and self-incrimination rights, al-

though the court below did not comply fully with Rule 11(c) (3).

See Brady v. United States, 397 US. 742, 90 S.Ct. 1463, 25 L.

Ed.2d 747 (1970) (guity plea entered in 1959 voluntary and in-

telligent even though defendant not specifically advised of Boy-

kin rights).

—13a—

cedes that the error was not prejudicial; so it does not

warrant reversal under the harmless error standard. See

Chapman v. California, 386 U.S. at 21-22, 87 S.Ct. at 826-27.

II.

Caston also contends that his consecutive sentences un-

der counts 1 and 2 and counts 4 and 5 of the Georgia in-

dictment violate the double jeopardy clause of the fifth

amendment. In Count 1 he was charged with transporting

a Chevrolet Corvette from Illinois to Atlanta in violation

of 18 U.S.C. § 2312, and in Count 2, with concealing, bar-

tering, selling and disposing of the same automobile in

violation of id. § 2313. In Count 4 he was similarly charged

with transporting a particular Lincoln Town Car from

Chicago to Atlanta in violation of section 2312, and in

Count 5, with concealing, bartering, selling and disposing .

of the same vehicle in violation of section 2313. Caston re-

lies on our holdings in United States v. Hernandez, 591 F.

2d 1019 (5th Cir. 1979) (en bane), and in United States

v. Casey, 540 F.2d 811 (5th Cir. 1976), to support his double

jeopardy argument based on alleged double punishment

for the same offense. Neither Hernandez nor Casey, how-

ever, indicates that the fifth amendment bars the consecu-

tive sentences imposed in this case.

Hernandez revolved around the legislative intent behind

a different statute. The defendant was convicted both of

possession with intent to distribute and distribution of

heroin in violation of the same subsection of 21 U.S.C. § 841

(a)(1). All of the evidence against Hernandez arose from

a single transaction in which Hernandez sold heroin to two

undercover agents. We held that, in enacting that single

provision containing alternative phrases, Congress did not

intend to make a single delivery of narcotics punishable as

two separate offenses. ‘‘When the intent to distribute was

executed by a successful sale, the possession with intent to

do so merged into the completed offense.’’ 591 F.2d at 1022.

In his opinion for the court en bane, Judge Rubin express-

ly stated that the issue was narrow and that the court

ey

decided no more than was necessary to carry out congres-

sional intent in the specific circumstances of the case. Id.

Casey dealt with the specific sections before us and the

interstate transportation of a single stolen vehicle. The case

provides no support for Caston, however, because the court

simply held that the evidence did not prove the section

2312 violation. 540 F.2d at 815 n. 8. It cannot be read even

to imply that Casey could not also have been convicted and

sentenced under that section if the government proved that

he concealed the stolen automobile as charged.

[8, 9] Cumulative punishment, consistent with the dou-

ble jeopardy clause, may be imposed for acts constituting

violations of two separate statutory provisions, as long as

‘‘each provision requires proof of an additional fact which

the other does not.’’ Blockburger v. United States, 284 U.S.

299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Accord,

Simpson v. United States, 435 U.S. 6, 11, 98 S.Ct. 909, 912,

55 L.Ed.2d 70 (1978); Brown v. Ohio, 432 U.S. 161, 166,

97 S.Ct. 221, 2225, 53 L.Ed.2d 187 (1977). A conviction for

transporting in interstate commerce a stolen motor vehicle

in violation of section 2312 and one for concealing and

selling the same motor vehicle in violation of section 2313

clearly require proof of different sets of facts. This court

has consistently held that defendants may be convicted

of violating both statutes with the same vehicle and sen-

tenced consecutively. See United States v. Marvel, 493 F.

2d 15, 16 (5th Cir. 1974); United States v. Stone, 411 F.2d

597, 599 (5th Cir. 1969) ; Strother v. United States, 387 F.

2d 385, 386 (5th Cir. 1967), cert. denied, 391 U.S. 971, 88

S.Ct. 2038, 20 L.Ed.2d 886 (1968). The consecutive sen-

tences imposed by the district judge in this case thus were

not barred by the double jeopardy clause of the fifth amend-

ment.

AFFIRMED.