Petition — Herzog v. United States

| Office-Suprome Court, U.S,

80-1782 ye RihED

APR 20 198

IN THE ALEXANDER L. STEVAS,

CLERK

SUPREME COURT OF THE UNITED STATES

NO.

OCTOBER TERM, 198i

JAMES H. HERZOG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Douglas W. Thomson

DOUGLAS W. THOMSON

LAW FIRM

Suite 1530

55 East Fifth Street

Saint Paul, Minnesota 55101

(612) 227-0856

Counsel for Petitioner

QUESTION PRESENTED

Whether the decision of the Eighth

Circuit Court of Appeals is consistent

with the requirements of Rule 11, Federal

Rules of Criminal Procedure, McCarthy

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

and the decisions of other circuit courts,

when on the record presented to the

trial court, there was no factual basis

to support the entry of Petitioner's guilty

plea.

TABLE OF CONTENTS

Page

Opinions BOLOW 006 0080stenece ene 1

Jurisdiction e*eeeeeeeeteteee#e#ee*ee#ee#eee#e##8ese# ®

Guestion Presented. «ccscsssseenteenne

2

2

Constitutional Provisions Involved... 3

Statutory Provisions: ..s+<ctsssanea eee

Statediont..<.csssccocnveskuses eee -

Reason for Granting the Writ......... 8

Conclu®iGlccecccerveeseetieen eee 20

Apovendix oeeee oes eoev err eeee eee eee eeeeeee A-1

CITATIONS

Page(s)

CONSTITUTION:

Amendment VIX gS its. seo ebeose 2% 3

CASES:

Blackledge v. Ellison, 431 U.S. 63

Pap CART F cw ce eee esse ceees cane ocee . 9

Bordenkircher v. Hayes, 434 U.S.

Bote. SOL CISTE). ccccccccvessvecesce 9

Burton v. United States, 483 F.2d

ee Se a ORE EE re de Ue Kees ce ahs 14, 18

In the Matter of the Investigation

of the Administration of the

Bankruptcy Court, Bankruptcy

Judge Gordon Thompson, 633 F.2d

Dae RCM Cake BOOS s ee se eee ccetenes 16

In the Matter of the Investigation

of the Bankruptcy Court, 607

P.2G 797 {BCH CLF. TOTP) csccveccevsess 16, 17

In the Matter of the Investigation

of the Bankruptcy Court 610

F.26 567 (8th Cir. UPS) wesiccicedce 17

In Re ENDECO, Inc. v. Herzog, slip

op. 80-1406 (8th Cir. November

RO g ASOD WdS oceans eeteeaatewcetee, AT

McCarthy v. United States, 394 U.S.

S59 (1969) 600s covereececeoss seveuuces 8,10,11,

12,19

McMerty v. Herzog, No. 81-1071 17

Majko v. United States, 457 F.2d

790 (7th Cir. 1972) wc ccccccvccccace 16

Moore v. United States, 592 F.2d

Tee. CORR CES es AeTes ve os eed baci codes 12

Santobello v. New York, 404 U.S.

257; 261 (1971)....... co cceccces cee 14

CITATIONS (Con't.)

United States v. Cammisano, 599

F.2d 851 (8th Cir. 1979)...... ccc.

United States v. Carter, 619 F.2d

293 (3rd Cir. 1980)... cwcccccccvvee

United States v. Cody, 438 F.2d

287 (8th Cir. 1971)..... coeccccccce

United States v. Fels, 599 F.2d

142 (7th Cir. 1979) .w. cc ccccccces -eoe

United States v. Roberts, 570 F.2d

999, 1009 (2nd Cir. 1977)... eee

United States v. Wetterlin, 583 F.2d

346 (7th Cir. 1978), cert. denied,

439 U.S. 1127 (1979)..... coc cccccce

Woodward v. United States, 426 F.2d

959, 964 (3rd Cir. 1970) .cccccccsee

STATUTES:

18 U.S.C. §IS3S wccccccccccccccsccccecs

18 U.S.C. §154 ....... ec cccceccccccoce

28 U.S.C. $2295 ceccccccccvecscceccseece

Page(s)

16

12

15,

16

19

13,

19

Cc Ww

19

18

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

OCTOBER TERM, 1981

JAMES H. HERZOG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

‘ PETITION FOR A WRIT OF CERTIORARI

y TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The Petitioner, James H. Herzog,

respectfully prays that a Writ of

Certiorari issue to review the judgment

of the United States Court of Appeals for

the Eighth Circuit.

OPINIONS BELOW

The opinion of the Court of Apveals

is not yet reported. The slip opinion

is found in the Appendix. The District

2

Court filed a non-published opinion, which

is also found in the Appendix.

JURISDICTION

The judgment of the Court of Apveals

was entered on March 20, 1981. This

Petition is filed within thirty days of

the Court's judgment. This Court's

jurisdiction is invoked pursuant to 28

U.S.C. §1254. The District Court's

jurisdiction was invoked by Motion to

Withdraw Guilty Plea pursuant to Rule

32(d), Federal Rules of Criminal Procedure,

and by Motion to Vacate Sentence, pursuant

to 28 U.8.C. §2255.

QUESTION PRESENTED

Whether the decision of the Eighth

Circuit Court of Appeals is consistent

with the requirements of Rule'1l Federal

Rules of Criminal Procedure, McCarthy

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

3

and the decisions of other circuit courts,

when on the record presented to the trial

court, there was no factual basis to

support the entry of Petitioner's guilty

plea.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment VIX

Section I. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

state wherein they reside. No state shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any state deprive any person of life,

liberty, or property, without due process

of law, nor deny any person within its

jurisdiction be equal prctection of

the laws.

STATUTORY PROVISIONS

18 U.S.C. §153:

Whoever knowingly and fraudulently

misappropriates to his own use, embezzles,

spends or transfers any property or

secrets or destroys any document belong-

ing to the state of a debtor which came

into his charge as a trustee, custodian,

marshal, or other officer of the Court,

shall be fined not more than the $5,000

or imorisoned not more than five

years or both.

.18 U.S.C. §154:

Whoever, being a custodian, trustee,

marshal, or other officer of the Court,

knowingly purchases, directly or indirect-

ly, or property of the estate of which

he is such officer in a case under Title

lls .e- .

Shall be fined not more than $500.00

and shall forfeit his office, which shal)!

thereupon become vacant.

Rule 11, Federal Rules of Criminal

Procedure:

(a) Alternatives. A defendant

may plead not guilty, guilty, or nolo

contendere. If a defendant refuses to

plead or if a defendant corporation

fails to appear, the court shall enter

a plea of not guilty.

(b) Nolo contendere. A defendant

may plead nolo contendere only with the

consent of the court. Such a plea shall

be accepted by the court only after due

consideration of the views of the parties

and the interest of the public in the

effective administration of justice.

(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.

5

STATEMENT

Petitioner was charged by indictment

with 14 violations of 18 U.S.C. §153,

Embezzlement by Trustee or Officer, in

connection with his trusteeship of the

bankruptcy of the ENDECO Company and

certain related entities.

On March 12, 1979, the day set ior

trial, the Government admitted that the

allegation of counts 7 through 14 were

defective and moved to dismiss them;

the motion was granted.

Petitioner plead guilty to counts

two, three and five and nolo contendere

to count one of the indictment. Petitioner

also plead guilty to an information,

filed on the date of trial, which »orohibits

self-dealing by a trustee with the estate

he supervises. The pleas were entered

on agreement of counsel as a result of

6

negotiations the night before trial. The

remaining counts in the indictment, four

and six, were dismissed.

Since the basis of this Writ of

Certiorari is the lower court's failure

to comply with Rule 11, the facts surround-

ing the entry of the guilty pleas and

the indictment itself are described in

greater detail. Counts one, two, three

and five of the indictment allege that

Petitioner appropriated over $300,000

from the bankrupt estate for his own

use. The individual counts on the

indictment are not specific as to the

actual source of the alleged embezzlement.

The counts do allege when the appropriations

took place, however.

At the plea hearing, the United

States introduced testimony from three

federal agents who described the evidence

7

which would have been submitted to support

the allegations in the indictment. Their

testimony described a series of financial

transactions, tracing the alleged embezzle-

ment through an examination of the books

and records of the bankrupt estate.

When Petitioner entered his plea,

he was asked a series of questions

regarding the voluntariness of the plea

and his understanding of the charges

against him. Petitioner answered the

Court's inguiries in the affirmative.

Petitioner was specifically asked if he

understcod he was forbidden to deal

with himself, as alleged in the information,

and in violation of 18 U.S.C. §154.

Petitioner responded, "in retrospect,

‘yes Sir."

At sentencing, Petitioner was allowed

to submit a detailed refutation of each

allegation in the indictment.

8

A year after the Court imposed

sentence upon Petitioner, he filed a

motion, made pursuant to Rule 32, Federal

Rules of Criminal Procedure to withdraw

-his guilty pleas, or in the alternative,

to vacate the sentence imposed, pursuant

to 28 U.S.C. §2255. The District Court

denied the motion and requested relief.

The Eighth Circuit affirmed; and a copy

of its opinion appears in the Appendix.

REASON FOR GRANTING THE WRIT

The mechanical application of Rule

11 by the Pistrict Court, uvheld by the

Eighth Circuit Court of Appeals, is

contrary to the purpose of Rule ll, and

is inconsistent with the mandate of

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

(1969) and the decisions of other circuit

courts.

9

This Court has recognized the

importance of plea bargaining in the

administration of justice.

Whatever might be the situation

in an ideal world, the fact is

that the guilty plea and the

often concomitant plea bargain

are important components of

this country's criminal justice

system. Properly administered,

they can benefit all concerned.

Blackledge v. Ellison, 431 U.S. 63, 71,

(1977); quoted in Bordenkircher v. Hayes,

434 U.S. 357, 361 (1978).

The entry of a plea is governed by

Rule 11, Federal Rules of Criminal

Procedure. Rule 11 requires, in part,

that "[nJotwithstanding the acceptance of

a plea of guilty, the Court should not

enter a judgment upon such plea without

making such inquiry and shall satisfy it

that there is a factual basis for the

plea."

10

This Court undertook in McCarthy v.

United States, 394 U.S. 459 (1969) to

examine and explicate the requirement of

Rule 11, and that decision therefore is

the benchmark from which the analysis

of this case must begin. The purpose

of adhering to the requirements of

Rule 11 were discussed in detail in the

McCarthy. This Court concluded:

There is no adequate substitution

for demonstrating in the record

at the time the plea is entered.

the defendant's understanding

of the nature of the charge

against him. 394 U.S. at

470 (Emphasis in original)

This Court noted that:

Because a guilty plea is an

admission of all the elements

of a formal criminal charge,

it cannot be truly voluntary

unless the defendant possesses

an understanding of the law

in relation to the facts.

394 U.S. at 466.

The requirement of a clear showing of

this understanding is to "protect a

~

11

defendant who is in a position of pleading

voluntarily with an understanding of the

nature of the charges but without realizing

that his conduct does not actually fall

within the charge." 394 U.S. at 467.

The Defendant's remedy for a defective

guilty plea is clearly stated by the Court:

[W]e hold 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 in

Rule 11. 394 U.S. at 463-464.

McCarthy's conviction on one count

of tax evasion was reversed specifically

because, on the record, McCarthy did not

understand the element of specific intent

as an essential part of the charge against

him. The broader holding in McCarthy

is, however, that "prejudice inheres in

a failure to comply with Rule 11." 394

U.8. et 874;

12

The mandate of McCarthy was clear and

unequivocal. As’ a result, the circuit

courts now require full compliance with

Rule 11 for a guilty plea to survive

appellate review. See e.g. United States

v. Carter, 619 F.2d 293 (3rd Cir. 1980);

Moore v. United States, 592 F.2d 753

(4th Cir. 1979).

The Eighth Circuit Court of Appeals

found no violation of Rule 11 in this

case. Noting that documentary information

had been introduced regarding the alleged

crime, coupled with the Petitioner's age,

experience and education, the Eighth Circuit

Court of Appeals found a sufficient factual

basis upon which the trial court could

accept the pleas.

The Eighth Circuit's finding of

compliance with Rule 11 is not supvorted

by the record; and further, the Eighth

13

Circuit's decision here is in conflict

with the holdings of other Circuit Courts

of Apneal' rendered under similar circum-

stances to this case.

The Circuit Court of Appeals have

reversed convictions resulting from guilty

pleas where, as here, there is (1) a

Clear lack of factual basis for the plea;

(2) a question as to the defendant's

understanding that his conduct. falls

within the definitions of the charges

against him; and (3) where the svecific

guidelines of Rule 11, Federal Rules

of Criminal Procedure have not been

followed.

In United States v. Wetterlin, 538

F.2d 346 (7th Cir. 1978), cert. denied,

439 U.S. 1127 (1979), the circuit decision

most directly on point, the defendant's

Conviction, resulting from a guilty plea

to one count of an’ indictment, was reversed

14

because the trial court failed to comply

with the requirements of Rule ll. The

trial court did not adequately explain

the charge of conspiracy to the defendant;

and, there was no adequate factual basis

presented on the record to support the

plea. The facts relating to the con-

spiracy charge were extraordinarily complex.

583 F.2d at 350. The Seventh Circuit

found the lower court had ignored the

mandate of this court in Santobello v.

New York, 404 U.S. 257, 261 (1971) that

"the judge [shall] develope on the record

the factual basis for the plea." (emphasis

in original) 583 F.2d at 352.

Similarly, in Burton v. United States,

483 F.2d 1182 (9th Cir. 1973), the defen-

dant'’s convictions resulting from guilty

pleas were reversed, where, on the record,

there wes no factual basis for the plea.

15

The fact that the defendant admitted he

was guilty was not an adequate factual

basis to comport with the requirements

of Rule 11. 483 F.2d at 1185. The

Defendant's "repeated protestations of

innocence" 483 F.2d at 1186, during

and after the plea, was a major reason

for the Ninth Circuit's decision.

And, in United States v. Cody, 438

F.2d 287 (8th Cir. 1971), the defendant's

convictions by a guilty plea were reversed

where the Eighth Circuit found no basis

of fact on the record to suvport the

Pleas. At the plea hearing, the Court

asked the defendant questions regarding

his age and occupation, and read the

indictment to the defendant. The Court

did not comply with the other requirements

of Rule 11. The Cody Court emphasized

that "the ominous consequences of self-

conviction resulting from a guilty plea

16

must still be guarded by thorough judicial

inquiry as required by Rule 11." 438 F.2d

at 289.

For other decisions reversing convictions

due to defective guilty pleas, See United

States v. Fels, 599 F.2d 142 (7th Cir. 1979);

Majko v. United States, 457 F.2d 790 (7th

Cir. 1972) and United States v. Cammisano,

599 F.2d 851 (8th Cir. 1979).

This case arises out of an extraordinarily

complex bankruptcy proceeding, one of the

largest in the history of North Dakota.

The Petitioner's alleged mismanagement of

the estate has lead to his own resignation,

the resignation of the supervising bankruptcy

judge, In the Matter of the Investigation

of the Administration of the Bankruotcy

Court, Bankruptcy Judge Gordon Thompson,

633 F.2d 519 (8th Cir. 1980); In the Matter

of the Investigation of the Bankruptcy

17

Court, 607 F.2d 797 (8th Cir. 1979);

In the Matter of the Investigation of the

Bankruptcy Court, 610 F.2d 547 (8th Cir.

1979), a controversy over the amount of

fees the Petitioner earned from the

bankrupt estates, In Re ENDECO, Inc. v.

Herzog, slip op. 80-1406 (8th Cir. November

26, 1980) and litig. tion over the Petitioner's

alleged embezllement from the bankrupt

estate, McMerty v. Herzog, No. 81-107],

yet to be decided by the Eighth Circuit

Court of Appeals.

Yet despite the extraordinary nature

of this case, the trial court accepted

the guilty pleas based upon Petitioner's

yes and no responses to the litany

required by Rule 1l. After the plea,

but before the sentencing, Petitioner

submitted to the Court a detailed refuta-

tion of each count of the indictment.

The documents presented reflected Petitioner's

18

handling of the complex ENDECO bankruptcy,

and repeatedly emphasized his belief

that he performed his duties conscientiously

and honestly; and that he acted with the

advice and assistance of counsel.

The decisions of the circuit courts,

cited above, are in conflict with the

Eighth Circuit decision here. Just as

in Wetterlin, supra, where the Seventh

Circuit found a relation between the

charge of conspiracy and the facts

supporting the charge to be lacking, here,

the facts presented at the plea hearing

did show the complexity of the case,

but Petitioner's subsequent refutation

of the facts negates any evidence of his

intent to commit the crimes charged.

Petitioner's denial of guilt is analogous

to what happened in Burton supra, where

the defendant plead guilty, while at the

19

same time, claiming he was innocent.

His convictions were reversed. A claim

of innocence is a ground for permitting

withdrawal of a guilty plea, either

because it negatives the voluntariness

of the plea or it demonstrates manifest

injustice. See Woodward v. United States,

426 F.2d 959, 964 (3rd Cir. 1970);

United States v. Roberts, 570 F.2d 999,

1009, (2nd Cir. 1977).

The Petitioner was incarcerated.

He faced the "ominous consequences of

self-conviction resulting from a guilty

plea." Cody, supra, 438 F.2d at 289.

The mandate of McCarthy, that there

be an adequate factual basis for the

guilty plea, was ignored in this case.

The facts surrounding the plea indicated

only the enormous complexity of the

bankrupt estate. The Petitioner's

protestation of innocence negatives any

20

evidence presented to show he intended to

commit the crimes charged against him.

Petitioner must be allowed to plead

anew, and present his case before the

jury of his peers.

CONCLUSION

Based upon the foregoing, it is

respectfully submitted that the Petition

for Writ of Certiorari should be granted.

Respectfully submitted,

DOUGLAS W. THOMSON

LAW FIRM

By "les te —

DOUGLAS W. THOMSON

Suite 1530

55 East Fifth Street

Saint Paul, Minnesota 55101

(612) 227-0856

Counsel for Petitioner

A-1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 80-1578

United States of America,

Appeal from

the United

States District

Court for the

District of

North Dakota.

Appellee,

Vv.

James H. Herzog,

*~e eenenene te

Appeliant.

Submitted: November 12, 1980

Filed: March 20, 1981

Before LAY, Chief Judge, BENNETT,* Court

of Claims Judge, and HENLEY, Circuit

Judge.

HENLEY, Circuit Judge.

Appellant, James Herzog, apveals from

*Marion T. Bennett, Judge, United

States Court of Claims, setting by

designation.

A-2

1

an order of the district court denying

motions he made, pursuant to Yule 32(d),

Fed. R. Crim. P., and 28 U.S.C. § 2255,

requesting leave to withdraw pleas of

guilty and nolo contendere, or alter-

natively, requesting vacation of the

judgments entered on those pleas. We

affirm the order of the district court

and deny appellant's requested relief.

In November, 1978, appellant,

formerly a trustee in bankruptcy, was

indicted and charged in separate counts

with fourteen violations of 18 U.S.C.

§ 153, which prohibits embezzlement by

a trustee or officer. Appellant's trial

aie: oak for March, 1979, approximately

four months from the time the indictment

~aited States District Court for

the District of North Dakota, The Honorable

Paul Benson, Chief Judge, presiding.

A-3

was returned. During this four-month

period appellant and the government

engaged in plea negotiations and a plea

agreement was reached.

The agreement provided that the

government would dismiss Count 4 and

Counts 6 - 14 of the indictment in |

return for appellant's pleading nolo

contendere to Count 1 and pleading

guilty to Counts 2, 3, and 5. In

addition, appellant agreed to vlead

guilty to an information charging him

with violating 28 U.S.c. § 154, which

prohibits self-dealing by a trustee.

On March 12, 1979, the scheduled

trial date, the parties appeared hefore

the district court and disclosed their

plea agreement. The district court

accepted appellant's pleas and entered

an order dismissing Counts 7 - 14 of

the indictment. On April 12,1979,

A-4

judgment was entered on apvellant's

pleas, appellant was sentenced, and

Counts 4 and 6 of the indictment were

dismissed. 7

In May, 1980, more than one year

after his sentencing, appellant filed a

Rule 32(d) motion, requesting leave to

withdraw his pleas, and a section 2255

motion, requesting the court to vacate

the judgments entered on his pleas.

In support of these motions, appellant

alleged in the district court and urges

here (1) that the requirements of Rule

ll, Fed. R. Crim. P., were not satisfied

in that no adequate factual basis of

guilt including criminal intent

was shown and (2) that Counts 2, 3 and

5 of the indictment were multiplicious

and his convictions on them violated the

fifth amendment's double jeopardy clause.

A-5

After hearing, the district court entered

an order denying appellant's requested

relief. It is from this order that

appellant appeals.

A defendant is entitled to withdraw

a guilty plea or nolo contendere plea

if the trial court, in accepting the

plea, failed to comply substantially

with Rule 11, Fed. R. Crim. P. See

United States v. Cammisano, 559 F.2a

851, 855 (8th Cir. 1979). Subsection

(f£) of Rule 11 provides that

the court should not enter

a judgment upon [a guilty]

plea without making such

inquiry as shall satisfy

it that there is a factual

basis for the plea.

To establish a factual basis,

[aJn inquiry might be

made of the defendant,

of the attorneys for the

government and the defense,

of the presentence report

when one is available, or

by whatever means is

appropriate in a specific case.

A-6

Fed. R. Crim. P. 11 Notes of Advisory

Committee on Rules (1974 Amendment).

"One example in the latter omnibus

category would be the taking of testi-

mony or consideration of documentary

evidence." 8 J. Moore, Moore's Federal

Practice §11.03[{3], at 1173 (2d ed.

1978) (footnote omitted). |

Avpellant contends that the ritual

followed by the trial court failed to

comport with the requirements of Rule

l1(f). In establishing this, appellant

bears the burden of proof. United States

v. Becklean, 598 F.2d 1122, 1125 (8th

Cir.), cert. denied, 444 U.S. 864 (1979).

We agree with the district court's find-

ing that appellant failed to carry this

burden.

This is not a case where a plea

was accepted after a limited inouiry

A-7

of the defendant and uvon the unsubstan-

tiated assertions of an indictment.

Compare United States v. Cody, 438 F.2d

287, 288-89 (8th Cir. 1971). Here,

the trial court, prior to entering

judgment on the pleas, heard testimony

of three government witnesses, examined

voluminous documentary evidence presented

by both the government and appellant,

examined the presentence report, and

inquired of the appellant personally

concerning tte nature of the charges

and the conduct in which he was alleged

to have engaged. Appellant acknowledged

his guilt and, when expressly asked by

the court, agreed with the evidence

presented by the government. This conduct,

considered in light of appellant's age,

experience and education, provided a

sufficient basis upon which to accept

A-8

his pleas. See United States v. Brown,

593 F.2d 351, 352 n.2 (8th Cir. 1979);

Benson v. United States, 552 F.2d 223,

225 (8th Cir.), cert. denied, 434 U.S.

851 (1977).

The trial court's procedures comported

with the demands of Rule 11(f). It ex-

plored all reasonably available fact

sources, aS well as material presented

to it concerning appellant's criminal

intent. Sufficient evidence was presented

to support the conclusion that appellant

was guilty beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307,

321 (1979).

As indicated, appellant also contends

that the counts of the indictment to

which he entered pleas were multiplicious

and, therefore, violative of his right

not to be put more than once in jeopardy.

A-9

More specifically, he notes that

Count 1 charges misappropriation of

monies in excess of $300,000.00 between

September, 1973 and June, 1978, and

that each of Counts 2, 3 and 5 charges

misappropriation of smaller amounts of

money on different dates, each within

the time period found in Count l.

The district court found appellant's

multiplicity challenge meritless. It

stated that "Although it is not evident

from the faceof the indictment, the

evidence received at the change of

plea hearing established that each count

of the indictment referred to a sevarate

occurrence that would have required

separate evidence to prove at trial."

An examination of the record on appeal

reveals this to be the case, and we

cannot say the district court's finding

4

A-10

on this issue is clearly erroneous.

See Kistner v. United States, 332 F.2d

978, 980 (8th Cir. 1964); Harris v.

United States, 237 F.2d 274, 276 (8th

Cir. 1956).

The district court also rejected

appellant's multiplicity challenge on

grounds that it was precluded by his

failure to raise the contention before

entry of his pleas of guilty and nate

contendere. Cases from our circuit

hold generally that a guilty plea waives

all nonjurisdictional defects, e.g.,

Camp v. United States, 587 F.2d 387,

399 (8th Cir. 1978); United States v.

Briscoe, 428 F.2d 954, 956 (8th Cir.),

cert. denied, 400 U.S. 966 (1970), and

that double jeopardy is a personal

defense and not jurisdictional, e.g.,

McClain v. Brown, 587 F.2d 389, 391

meld

(8th Cir. 1964). Moreover, we have

observed that defects in the indictment

or questions of double jeopardy usually

cannot, after conviction, be raised

under section 2255. Houser v. United

States, 508 F.2d 509, 514-15 (8th Cir.

1974).7

Rule 12(b) (2), Fed. R. Crim. P.,

requires that a complaint about the

multiplicity of an indictment, and its

inherent double jeopardy problems, be

raised before trial. In the present

circumstances, appellant's failure to

2

A guilty plea alone may not always

Waive a claim of double jeopardy. See

Menna v. New York, 423 U.S. 61, 62 (1975).

Menna notes, however, that a counseled

guilty plea validly removes the issue

of factual guilt’ from the case and

renders irrelevant constitutional

violations not logically inconsistent

with factual guilt and that a double

jeopardy complaint may be waived. Id.

at n.2

A-12

do so acted as a waiver of that

complaint. United States v. Sheehv,

541 F.2d 123, 130 & n.20 (lst Cir.

1976); United States v. Beades, 503

F.2d 520, 521 (8th Cir. 1974).

Appellant raised his multiplicity

“complaint for the first time more than

one year after entering his pleas. He

raised this complaint by direct attack

via Rule 32(d) and collateral attack

via section 2255. Appellant had ample

time prior to entering his pleas in

which to scrutinize closely the charges

in the indictment and determine if

they were subject to objection. He

chose not to challenge the indictment,

but rather to negotiate for the dismissal

of numerous counts in return for his

pleas. Appellant's reasons for initially

pleading guilty and nolo contendere to

ais

four counts of the indictment are as

valid now as they were at the time the

pleas were entered. The indictment

to which apvellant pleaded has not changed

with the passage of time.

To permit appellant to now raise

his double jeopardy complaint would

thwart the orderly and efficient adminis-

tration of our criminal justice system,

as well as make hollow the constraints

imposed by Rule 12(b) (2).

[A] claim once waived

pursuant to [Rule 12(b)

(2)] may not later be

resurrected, either in

the criminal proceedings

or in federal habeas, in

the absence of the showing

of "cause" which [Rule >

12(£)] requires.

Davis v. United States, 411 U.S. 233,

242 (1973). Appellant failed to raise

his complaint timely, and made

insufficient showing of cause in the

district court.

We conclude that the judgment

of the district court should be, and

it is, affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS

EIGHTH CIRCUIT.

—

A-15

UNPUBLISHED DECISION OF THE

DISTRICT COURT

Defendant in the above entitled

criminal case has moved pursuant to

F.R.Crim.P. 32(d) to withdraw his pleas

of nolo contendere and guilty, and in

the alternative for an order pursuant

to 28 U.S.C. §2255 vacating the sentences

imposed.

Defendant was charged in a fourteen

count indictment with violating 28 U.S.C.

§153, which provides as follows:

"Whoever knowingly and fraudulently

appropriates to his own use, embezzles,

spends, or transfers any property or

secretes or destroys any document belong-

ing to the estate of a bankrupt which

came into his charge as trustee, receiver,

custodian, marshal, or other officer

of the court, shall be fined not more

A-16

than $5,000 or imprisoned not more than

five years, or both.”

Defendant plead nolo contendere

to Count One of the indictment, and

guilty to Counts Two, Three and Five.

Defendant also pleaded guilty to an

information filed on the day he changed

his plea, which charged a violation of

18 U.S.C.. §154. Counts Four and Six

through Fourteen of the indictment were

dismissed on motion of the United States.

Defendant was sentenced to be committed

to the custody of the Attorney General

for five years on Counts Two, Three and

Five, the sentences to run concurrently.

Imposition of the sentence on Count One

and on the offense charged in the infor-

mation was suspended and d«fendant was

placed on probation for a concurrent

period of ies: shane. to commence when

defendant has been released from con-

finement. .

A-17

Rul: 32(d) provides that a motion

to withdraw a plea of guilty or of

nolo contendere may be made only before

sentence is imposed or imposition of

sentence is suspended. After sentence

the court may set aside the judgment

of conviction and permit the defendant

to withdraw his plea only to correct

manifest injustice.

The record establishes that the

pleas of nolo contendere anc guilty

were entered knowingly and voluntarily

by defendant after the court informed

defendant fully of the consequences of

his change of plea.

Defendant contends that there

was no factual basis for the pleas.

This contention is without merit.

Detailed testimony of F.B.I. agents

who had investigated defendant's

A-18

activities as trustee was received into

evidence at the change of plea hearing.

The uncontroverted testimony of those

agents was evidence that defendant had

committed the offenses charged in

Counts One, Two, Three and Five of the

indictment and in the information.

After the completion of the testimony

of the F.B.I. agents, defendant was

convicted on his nolo contendere plea

to Count One and on his guilty pleas

together with his admission that he

had appropriated to his own use monies

belonging to the estate of the bankrupt

corporation which came into his charge

as trustee of those estates as charged

in Counts Two, Three and Five of the

indictment. Defendant was convicted

on the charge in the information on his

guilty plea and his admission that he

A-19

knowingly purchased property belonging

to the bankrupt estates for which he

was trustee as charged.

Defendant contends, for the first

time, that Counts Two, Three and Five

of the indictment are multiplicitious and

that the judgment of conviction entered

on those counts violates the Double

Jeopardy Clause. This contention is

also without merit. Although it is not

evident from the face of the indictment,

the evidence received at the change

of plea hearing established that each

count of the indictment referred to

a separate occurrence that would have

required peparats evidence to prove

at trial.

Defendant having failed to show

manifest injustice, the motion to

withdraw the pleas of nolo contendere

and guilty with be denied.

A-20

The alternative motion to vacate

sentence pursuant to 28 U.S.C. §2255

will also be denied. As stated supra,

defendant pled guilty and nolo contendere

knowingly and voluntarily and a factual

basis exists which establishes the

elements of the crime to which he entered

his pleas. The double jeopardy argument

may not be raised in a collateral

proceeding, for multiplicity is a defense

or objection that could have and, pur-

Suant to Rule 12(b) (2), should have been

raised before the change of plea.

Houser v. United States, 508 F.2d 509,

S15 (8th cir. 1974). The court further

notes that a plea of guilty waives all

nonjurisdictional defects in the proceed-

ings. Id. at 516.

The court finds that defendant's

motion and the files and records of

the case conclusively show that the

A-21

defendant is entitled to no relief

under 28 U.S.C. §2255.

IT IS ORDERED that defendant's

motion to withdraw the pleas of guilty

and nolo contendere is DENIED.

| IT IS FURTHER ORDERED that defendant's

alternative motion to vacate the sentence

imposed is DENIED.

Dated this 19th day of June, 1980.

/s/ Paul Benson

PAUL BENSON, CHIEF JUDGE

UNITED STATES DISTRICT COURT