# Petition — Herzog v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1654%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 1018 ## Text | 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+ 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 — A-15 UNPUBLISHED DECISION OF THE DISTRICT COURT Defendant in the above entitled criminal case has moved pursuant to F.R.Crim.P. 32(d) to withdraw his pleas of nolo contendere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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1654%3A1. Public record. Not legal advice.