Petition — Nunziata v. United States

October Term, 1982

RALPH FREDERICK NUNZIATA,

Petitioner,

vs...

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CHARLES A. GIULINI, JR.

Attorney for Petitioner

310 Madison Avenue

New York, New York 10017

(212) 697-0337

MICHAEL JOSEPH J. BARNAS

Of Counsel

6973 LUTZ APPELLATE PRINTERS, INC.

QUESTIONS PRESENTED

1. Under the Due Process Clause of the Fifth Amendment,

does an accused in a federal felony prosecution have the right

to enter a conditional plea of guilty in which the conclusiveness

of the plea is conditioned upon the accused’s reservation of the

right to appeal from an adverse ruling on a pretrial motion to

dismiss the indictment for noncompliance with the Speedy Trial

Act’s timetables for filing of the indictment and the government’s

readiness for trial?

2. As a matter of due process of law under the Fifth

Amendment, once the right or privilege to enter a conditional

guilty plea is afforded to the accused, can it be subjected to the

requirement of the accused’s having to obtain at the time of plea

the government’s and the court’s consent to the entry of such

a plea?

3. Under the rule of federal criminal procedure that a

voluntarily entered guilty plea waives all prior nonjurisdictional

defects in the defendant’s prosecution, does an accused who pleads

guilty to one count of a multiple-count indictment brought under

the National Firearms Act of 1968 charging the accused with the

illegal transportation of an unregistered piece of weaponry, to

wit, an M-16 lower receiver, waive and withdraw from appellate

review the defense that the count fails to charge him with an

offense, based on the definition of ‘‘firearm’’ in the Act, or is

the substantive insufficiency of the count a nonwaivable

jurisdictional defect that can be raised after conviction or on

appeal?

4. For purposes of determining the adequacy of legal counsel

in a criminal case, under the Fifth Amendment’s Due Process

Clause’s requirement that a plea of guilty must be voluntary and

knowingly made and under the Sixth Amendment right of the

accused to the effective assistance of counsel, can a guilty plea

to an indictment count be said to be voluntary and inteiligently

made when the accused’s counsel was misinformed as to the

applicable timetable and dates of arrest and further prosecution

of the accused that may have been controlling on defendant’s

motion to dismiss under the Speedy Trial Act, and when counsel

failed to apprise himself and to advise the accused of the

_ availability of a meritorious defense of the criminal charge’s legal

insufficiency and further failed to advise the accused of and to

take steps to preserve the pleading option of entering a conditional

plea of guilty that would have preserved these defenses for further

review?

PARTIES TO THE PROCEEDING

The caption of the case in the Supreme Court contains the

names of all parties to the proceeding in the court whose judgment

is sought to be reviewed.

TABLE OF CONTENTS

Page

SEEN PUUEDNOUD .vcle bh geet ns vee agus cu cde chedWese i

Parties to the Proceeding ...........cccccccscccccccces iii

Fe MONI 5 Noo vu Si vee cdevende ce cececesccden iv

i ONS 6 tS 65 Cee bb ote nib uecs dddue yes ecek es v

CD «han Ju debs cuedeeglscuwest sce stéccduen 1

Pans .wilebc desc cv pane TAbRaE Coen tsccdcuteans 2

Constitutional and Statutory Provisions Involved ........ 2

Statement of the Case and Basis for Federal Jurisdic-

Sn abuhrared on¥ededetins anal Sn Catnhbendvovdn’ oes 3

Reasons for Granting the Writ:

I. Conflict Among the Circuits with Respect to Guilty

UMNO s < Drink os Hap etbe Wedbeads «cane doc cckas 9

A. Constitutionality of Conditional Guilty Plea

PEs > dnd cm scbitVecumbe cues tide kine 9

PN s Oud Shang bu Bu betes oo ce ctwaeeds 14

Il. The Second Circuit departed from this Court’s

standards for assessing a guilty plea’s voluntariness. 17

TABLE OF CITATIONS

Cases Cited:

Barnes v. Jones, 665 F. 2d 427 (2d Cir. Nov. 23, 1981), cert.

granted, No. 81-1974, 50 U.S.L.W. 3963 (June 7,

RRS s Gand okAGS CERS Ctlomae es ces abs dh veces 18, 22

FOURS «wp GA vewiiegedec she dpriaseseweb Seta sdb cannes 20

Brady v. United States, 397 U.S. 742, 25 L. Ed. 2d 747 (1970)

PO Pere Pree Tee Tete ety Tre eee 18, 19, 21

Coleman v. Burnett, 477 F. 2d 1187 (D.C. Cir. 1973)

Pons HevasPacedowewanrcccesdKsshensegWaeses 9, 12, 15, 19

Coppedge v. United States, 369 U.S. 438, 8 L. Ed. 2d 21

Jaben v. United States, 333 F. 2d 535 (8th Cir. 1964), aff'd,

381 U.S. 214, 14 L. Ed. 2d 345 (1965)............. 12

Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 2d 1461

SERPS OTINT re kee eRe eee 15

vi

Contents

Page

La Magna v. United States, 646 F. 2d 775 (2d Cir.

BN 66 dns decvevetnsed bhewhedecwegece so cccedeene 14

Lefkowitz v. Newsome, 420 U.S. 283, 43 L. Ed. 2d 196 (1975)

Sede Wasi odbvevarericedbcescawetspenceses 10, 11, 15, 19

McCarthy v. United States, 394 U.S. 459, 22 L. Ed. 2d

BE GID oboe pccbedes davedooseccdcicvcosess 18

McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763 (1970)

ba OdduD 0 cbnd 060 Steer bdves don cvogevecoooeses 18, 19, 21

EP EPrrverry: TPLTTT TTT YETTETTT LTT ee 14, 15

Nance v. United States, 422 F. 2d 590 (7th Cir. 1970)... 13

North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d

St sod 4a'k ce AbD ebb ee aaeees cbws deuce sees 15

North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d

DR Sb dens bien db dave cats ck cbdadtasees 11

Parker v. North Carolina, 397 U.S. 790, 25 L. Ed. 2d 790

SAME: Kate «i gadu Géudd Man Cebande vhs 60ekeees ¢ 18

Rodriquez v. United States, 395 U.S. 327, 23 L. Ed. 2d 340

ity stich ses ibe Ghd sodas s cokdettess bewds icone 13

Teer Ut FS

-“

Contents

Page

Roeth v. United States, 382 F. 2d 96 (10th Cir. 1967), cert.

denied, 390 U.S. 1016, 20 L. Ed. 2d 165 (1968)....11, 14

Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed.

Pa ns «he Ete ambnde Canince co bakaese 19

Strader v. Garrison, 611 F. 2d 61 (4th Cir. 1979) ....... 19

Tollett v. Henderson, 411 U.S. 258, 36 L. Ed. 2d 235 (1973)

$460 coceutcvedpusidocseedesecsde- cs easetons 14, 18, 21

United States v. Benson, 579 F. 2d 508 (9th Cir. 1978) .10, 19

United States v. Briscoe, 428 F. 2d 954 (8th Cir. 1970), cert.

denied, 400 U.S. 966, 27 L. Ed. 2d 386, reh. denied, 401

U.S. 926, 27 L. Ed. 2d 831 (1971)................. 15

United States v. Brown, 499 F. 2d 829 (7th Cir. 1974)... 11

United States v. Burke, 517 F. 2d 371 (2d Cir. 1975)....9, 12

United States v. Caraway, 474 F. 2d 25, rehearing granted,

id., vacated as moot, 483 F. 2d 215 (3d Cir. 1973)

United States v. Clark, 459 F. 2d 977 (8th Cir.), cert. denied,

429 U.S. 880, 34 L. Ed. 2d 135 (1972)............. 9

United States v. Cox, 464 F. 2d 937 (6th Cir. 1972)

65 dds Rha te de VCR ee 0308s ek bad cdbataeleroce 11, 14, 19

he

|

i

f

Contents

Page

United States v. DePoli, 628 F. 2d 779 (2d Cir. 1980)... 9

United States v. Doyle, 348 F. 2d 715 (2d Cir.), cert. denied,

382 U.S. 843 (1965) ... 2.2... cece eeees 7, 12, 13, 14, 17

United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d

PEED SEDs ce Sek ouddsvasaceatesedbaveconcccodecses 9

BOVE 0 ven dabe cdbe ccbvubeededdesedes cceccenssicds 10

United States v. Moscow, 588 F. 2d 882 (3d Cir. 1978)

Saabbn ile owecadep cocdstdewds o6beeeccascees 9, 10, 13, 15

United States v. Nooner, 564 F. 2d 633, rehearing denied,

a Ca ae ads ccaieandebdae oégbeéd sepndq 11

ix

>

Contents

Page

United States v. Sepe, 486 F. 2d 1045 (Sth Cir. 1973)

Oe BE EG eh hE AO te 10, 15, 19

United States v. Warwar, 478 F. 2d 1183 (ist Cir.

DIE x3.» vccnu ine dé <o dubias Sede VORLEES ws cettbn di 9

Statutes Cited:

ES aS TAG ANS GE Se Re ai SSR. SR 2

TEAR ap or ayy gmap 2, 3,6

I ne can cbeetbnbs 2,3

POR CLS ORE TEP SE 2,3

8 SAR cy, SOR Ae cd "SE 2, 4, 20

ps CN ee cre ee 2, 20

SSE RAE SA EM 2

EE ER + AES ET ee 2

CO GREGES FP TR ha USE RT 2,3

a i a ok 2, 6

I »- 2, 6

I ee Foe oe tas 2,3

7

ORS OLLIES OF Ale OCF IE TS 2,3

BB UB. GIBSAER) «6. ceive ccc ccccdivcccsccsscccescess 2

N.Y. Crim. Prac. L. Sections 710.20, 710.70 (subd. 2)... 11

N.Y. Penal L. Section 5510 [subd. 1(b)]................ 3

United States Constitution Cited:

DS, Te nok enek pepedhs 0 cdbecodceces i, 2, 11

eo at odeuue bd ub onevcenes i, 2, 14, 18

Rules Cited:

Federal Rules of Criminal Procedure:

AMMEN Faas... Jracahded s6de BOs cok owids vas dee 2, 5, 17

NS ee nt es a dbpew nna 2, 5, 17

1 SG RES A SS Set pete 2, 5, 17

I os Ee, Ss cieencueeus 2, 5, 6

OE RR LNs FEEDERS PIR OF 2, 8

it We MONS, os ciicccake tevin ccavns cébs cocks n

Fed. R. App. P. 27(b).........0ccecceccecceeseeceeess 7

eM ORR kes, oo aban es ics se degeaoemes 8

i;

:

Contents

Page

Other Authority Cited:

Note, Conditional Guilty Pleas, 93 Harv. L. Rev. 564 (1980)

uS6bdd Hodnncee eo kbanakseth dite codedse ote. 10, 11, 19

APPENDIX

say << Spggapeomett udincsrad rir denser

hd hin scubuaena ahs 66h od atheeeneemuaiia cs ééhhes la

Opinions of the District Court ............. 6.60 ceeeee 6a

Judgment of Conviction and Sentence Spread on the

anos bbdabs aida dpthbcne oqhdeenbh Se teee sess l4a

Constitutional Provisions and Statutes Involved ......... 17a

No.

Supreme Court of the Huited States

>—

October Term, 1982

RALPH FREDERICK NUNZIATA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE UNITED

STATES:

The petition of Ralph Frederick Nunziata, petitioner, by his

attorney, Charles A. Giulini, Jr., respectfully shows as follows:

OPINIONS BELOW

The opinions of the district court below were delivered orally

from the bench in open court and are spread on the court reporter’s

minutes but are not otherwise reported. United States v. Ralph

2

Frederick Nunciaia, No. 81 Cr. 298 (E.D.N.Y., proceedings of

6/23,/81, 10/5/81).

The memorandum opinion of the circuit court below is not

reported in the slip sheets of that court nor in the official reporter.

United States v. Ralph Frederick Nunciata, No. 81-1357 (2d Cir.

April 19, 1982).

JURISDICTION

The date of the judgment sought to be reviewed is April 19,

1982. The time of its entry is also April 19, 1982.

By order dated May 26, 1982, the Honorable Thurgood

Marshall, Associate Justice of the Supreme Court, extended

petitioner’s time to file a petition for writ of certiorari to and

including July 19, 1982.

The Supreme Court has jurisdiction to hear the petition by

virtue of 28 U.S.C. §1254(1) permitting review by the Supreme

Court of cases in the court of appeals by writ of certiorari granted

upon the petition of a party to a criminal case after rendition

of judgment.

CONSTITUTIONAL AND STATUTORY PROVISIONS

. INVOLVED

Following are the citations to the constitutional provisions

and statutes which the case involves. The provisions cited are set

forth verbatim in the appendix: United States Constitution,

Amendment V (in part); United States Constitution, Amendment

VI (in part); 18 U.S.C. §2; 18 U.S.C. §§921(a\(3), 922(g)(1), 924(a);

18 U.S.C. §§3161(b), 3161(c)(1), 3161(d)(1), 3162(aX(1); 26 U.S.C.

§§5841, 5845(a)(6), 5845(b), 5861(j), 5871; Federal Rules of

Criminal Procedure 11(c), 11(d), 11(f), 32(d) and 35(b).

3

STATEMENT OF THE CASE AND BASIS FOR FEDERAL

JURISDICTION

On May 13, 1981 petitioner Ralph Frederick Nunziata was

indicted under a 15-count indictment for multiple violations of

Chapter 44, Title 18 of the United States Code, 82 Stat. 234, 18

U.S.C. §§921 et seg., and of the National Firearms Act of 1968,

82 Stat. 1229, 26 U.S.C. §§5841 et seg. He pleaded guilty to Count

6 of the indictment. Count 6 charges him with one act of

transporting in interstate commerce an ‘‘M-16 lower receiver’’

that had not been registered in the National Firearms Registration

and Transfer Record in accordance with the procedures set forth

in Section 5841 of the National Firearms Act of 1968, in violation

of Section 5861(j) of the Act, 26 U.S.C. §5861(j). The violation

carries a maximum sentence of 10 years’ imprisonment and a

$10,000 fine. Jd., §5871. Petitioner, a first-time offender under

the Act, was given six years. His conviction and sentence were

upheld by the Court of Appeals for the Second Circuit.

Before the filing of the indictment, petitioner had been

prosecuted under a criminal complaint, sworn out August 1, 1980

by an enforcement agent of the Alcohol Tobacco and Firearms

Bureau of the U.S. Department of the Treasury. The complaint

alleges the shipment of the M-16 lower receiver but alleges the

violation of a different statute, 18 U.S.C. §922(g)(1) which

prohibits the interstate shipment of a firearm, as defined in 18

U.S.C. §921(aX(3), by anyone previously convicted of a crime

punishable by a term of imprisonment exceeding one year in

duration.' Thai carries a maximum sentence upon conviction of

five years’ imprisonment and a $5,000 fine. See 18 U.S.C. §924(a).

1. Petitioner at the time of his prosecution had a state felony conviction

on his record. See N.Y. Penal L. §5510 (subd. 1(b)}. He had received probation.

4

On August 12, 1980, petitioner was arrested and brought

before the United States Magistrate to answer the complaint. He

pleaded not guilty, a preliminary hearing was waived and, upon

posting of an appearance bond, he was released.

Exactly 37 days later, on September 18, 1980 or seven days

after the expiration of the 30-day arrest-to-indictment time

limitation for filing of an information or indictment under the

Federal Speedy Trial Act, 88 Stat. 2076, 18 U.S.C. §§3161 ef seq.,

3161(b) (1976), the Magistrate ordered the complaint dismissed,

on the motion of the Assistant United States Attorney.

Nine months later, on May 22, 1981, petitioner voluntarily

appeared in court with court-appointed counsel to be arraigned

under the indictment. Petitioner was not rearrested, refingerprinted

or rephotographed. He pleaded not guilty and a trial date of July

1, 1981 was set, with June 5, 1981 as the due date for motions.

By notice of motion dated June 16, 1981, returnable June

26, 1981, petitioner’s counsel moved to dismiss the indictment

for exceeding the Speedy Trial Act’s arrest-to-indictment and

indictment-to-trial time limits. He supported this with a two-page

affirmation in which he incorrectly gave August 1, 1980 and

September 1, 1980 as the dates of petitioner’s arrest under the

complaint and the dismissal thereof, respectively, which the district

court expressly adopted in denying the motion on the basis of

satisfaction of the Speedy Trial Act’s time limit of 30 days for

the filing of an indictment following an arrest. See 18 U.S.C.

§3161(b).?

2. ‘September 1, 1980 was a Monday and was Labor Day, when the court

was closed.

tae

5

As critically important as the chronology of the case was

to the success of the motion, and as all-important as the motion

was in constituting petitioner’s sole defense to the indicment,’

petitioner’s counsel did not renew the motion after the Assistant

United States Attorney sent a letter to the court with copy to

counsel the day after the motion was heard, pointing out the

correct complaint dismissal date.‘ In fact, in arguing the motion

on the basis of August 1/September 1 operative dates, counsel

argued against his own position to the effect that the Speedy Trial

Act timetable was not exceeded at all, incorrectly stating the law

to be that the government had 35 days after petitioner’s arrest

in which to return an indictment, or four days more than it

assertedly took to dismiss the complaint thereby staying within

its time limit.

The same day of and after the Speedy Trial Act motion’s

denial, petitioner, pursuant to a prearranged agreement with the

United States Attorney, offered to withdraw his not guilty plea

and to plead guilty to Count 6 of the indictment charging the

interstate shipment of the ‘‘M-16 lower receiver’’, in satisfaction

of all the counts. Tracking the allocution format prescribed by

Fed. R. Crim. P. 11, subds. (c), (d) and (f), to determine the

voluntariness of the plea, the district court advised petitioner of

his constitutional! rights to a speedy jury trial, to confrontation

and cross examination of witnesses, and of the consequence of

his rights’ waiver by pleading guilty; read Count 6 and asked

petitioner to tell the court in petitioner’s own words what he had

3. Petitioner changed his plea to guilty as soon as the motion was denied.

4. The District Court relied on counsel’s failure to immediately renew the

_ Speedy Trial Act motion on the basis of the actual arrest/dismissal dates, in

denying the motion again when it was renewed by substituted counsel in the

Fed. R. Crim. P. 32(d) motion for post-conviction relief. See appendix at 10a,

infra.

done;’ asked the government to relate the proof it was prepared

to offer and advised petitioner of the maximum sentence that

he could receive. Petitioner acknowledged his awareness of his

rights, of the charge brought and the corsequences of a guilty

plea, and proceeded to plead guilty to Count 6. Finding a factual

basis for it, the district court accepted the plea and, on September

11, 1980, imposed the sentence of six years’ imprisonment.

Petitioner thereafter retained his present counsel who, by

motion made returnable on October 5, 1981, sought to withdraw

the plea, pursuant to Fed. R. Crim P. 32(d),* on the basis of

the government’s violation of the Speedy Trial Act by

reprosecuting petitioner by indictment filed more than 30 days

after petitioner’s arrest on the same charge contained in Count

6, and on the basis that the shipment alleged in Count 6 did not

meet the statutory definition of firearm in consisting of the lower

half of a receiver from an M-16 automatic rifle.’ Relief was denied;

however, upon counsel’s application in open court the district

court did grant petitioner 30 days, until November 4, 1981, in

which to file a notice of appeal* and also permitted petitioner

to rerrain free on bail which was reimposed. These actions were

5. In his own words, ““What I did, sir, I had in my possession the rear

half of a de-militarized M-16 Receiver, or a part of it. | shipped it . . . "’ United

States v. Ralph Frederick Nunziata, 81 Cr. 298, Minutes of 6/23/81, p. 9.

6. Fed. R. Crim. P. 32(d) provides that after sentence on a judgment of

conviction a defendant may be permitted to withdraw his guilty plea if he can

demonstrate to the satisfaction of the court that the failure to do so will result

in manifest injustice.

7. See 18 U.S.C. §921(aX(3); 26 U.S.C. §5845 [subds. (a) (6), (b)j.

8. Under Fed. R. App. P. 4(b), petitioner's time to appeal expired on

September 2!, 1981 or 10 days ftom the entry of the judgment of sentence on

the criminal docket on September 11, 1981.

taken upon the government’s stating that it had no problem and

no objection, respectively, with each action.

The appeal was timely brought and perfected. In his brief

to the Court of Appeals, petitioner strongly urged in Point I that

dismissal of the indictment with prejudice was mandated by the

language and purposes of the Speedy Trial Act, given the correct

operative dates. He also argued material variance between the

shipped article’s description in the indictment and what it actually

consisted of. By nctice of motion made returnable on March 24,

1982, the date set for oral argument of the appeal, the government

moved pursuant to Fed. R. App. P. 27(b) to have Point I of

petitioner’s brief dismissed, on the ground that he had not reserved

the right to appeal the denial of the speedy trial motion at the

time he pleaded guilty, by obtainirg both the government’s and

the court’s consent to the taking of an appeal.

In its decision dated and entered April 19, 1982, the Court

of Appeals acknowledged the rule in the Second Circuit permitting

a defendant to enter a conditional guilty plea reserving his right

to appeal from adverse pretrial rulings, but held that the rule was

inapplicable to petitioner since he was required to obtain both

the government’s and the court’s consent to taking the appeal

conformably with the practice in the Second Circuit going back

to United States v. Doyle, 348 F. 2d 715, cert. denied, 382 U.S.

843 (1965). Noting that a speedy trial deprivation is a

nonjurisdictional defect, the court of appeals held that in light

of the petitioner’s failure to receive the government’s and the

district court’s approval of an appeal, the defense had been waived

as a point for appeal and had to be dismissed.’ Without classifying

9. The Second Circuit's disposition, based upon its opinion, should have

been to dismiss the appeal from the district court’s denial of the speedy trial

motion and to otherwise affirm the judgment of conviction entered below.

Instead, the judgment was affirmed in foto.

it as a nonjurisdictional defect, the court of appeals also held

that the defense that the weapon petitioner admitted shipping is

not a regulated ‘‘firearm’’ had been waived by petitioner’s plea.

Following the court of appeals’ affirmance and issuance of

a mandate for petitioner's incarceration, petitioner brought a

motion in the district court, pursuant to Fed. R. Crim. P. 35(b),'°

for reduction of the sentence. That motion is still pending.

Simultaneously therewith, petitioner made application to Associate

Justice Thurgood Marshall, pursuant to Supreme Court Rule 20.1,

for an extension of time to file for a writ of certiorari so as to

allow time for disposition of the Fed. R. Crim. P. 35(b) motion.

By order of Mr. Justice Marshall dated May 26, 1982, the

application was granted, extending petitioner’s time to apply for

the writ of certiorari to and including July 19, 1982.

The basis for federal jurisdiction in the district court is that

the illegal manufacturing and dealing in firearms with which

petitioner is accused-are alleged to have occurred in interstate

‘commerce and, therefore, are subject to federal regulation and

prosecution under the Commerce Clause. The federal district court

has federal question jurisdiction over criminalized acts which are

proscribed and criminalized by federal law.

REASONS FOR GRANTING THE WRIT

This case presents for review two important questions of

federal criminal procedure that have not been but should be

decided by the Supreme Court, and as to which the federal courts

are in conflict. The questions pertain to the effect upon an

accused’s appeal rights of a plea of guilty, and specifically whether

10. Fed. R. Crim. 35(b) permits the district court to reduce a sentence after

it has been imposed.

a conditional guilty plea, in which the accused reserves the right

to appeal adverse pretrial rulings, constitutionally can be made

subject to the requirement of obtaining the government’s and the

district court’s consent to such plea. The second question is whether

a guilty plea waives appellate review of the legal sufficiency of

the charge to which the accused pleads. Point II of the Argument

presents the question of the voluntariness of petitioner’s plea.

CONFLICT AMONG THE CIRCUITS WITH RESPECT

TO GUILTY PLEAS

A. Constitutionality of Conditional Guilty Plea Procedure

A conditional uty plea is a plea of guilty entered upon

the condition that the defendant preserves the right to appeal prior

rulings of the district court on an alleged defect in the prosecution

that, if decided in defendaui's favor. would prove dispositive of

the case. United States v. DePoli, 628 F. 2d 779 (2d Cir. 1980);

United States v. Lace, 669 F . 2d 46, 53 (2d Cir. January 5, 1982)

(Newman J., concurring in result). The concept was fashioned

in the Second Circuit by Judge Friendly, in his unanimous opinion

in United States v. Doyle, supra, 348 F . 2d at 718-19, and thereafter

received wide currency in the Second Circuit. United States v.

Mann, 451 F. 2d 346 (1971); United States v. Rothberg, 480 F.

2d 534 (1973); United States v. Burke, 517 F. 2d 371 (1975); United

States v. Rico, 594 F. 2d 320 (1979). The plea has also been adopted

as a permissible pleading option in the District of Columbia and

in the Third and Eighth Circuits, Coleman v. Burnett, 477 F.

2d 1187 (D.C. Cir. 1973); United States v. Moscow, 588 F. 2d

882 (3d Cir. 1978); United States v. Clark, 459 F. 2d 977 (8th

' . Cir.), cert. denied, 429 U.S. 880, 34 L. Ed. 2d 135 (1972). The

First Circuit has declined to rule on its acceptability. United States

v. Warwar, 478 F. 2d 1183, 1185 n. 1 (1973).

As the Supreme Court noted in Lefkowitz v. Newsome, 420

U.S. 283, 289-90, 292-93, 43 L. Ed. 2d 196, 202, 204 (1975), the

plea spares ‘‘the completely unnecessary waste of time and energy”’

of conducting a trial where the Gispositive issues can be litigated

through a full range of appellate ceview, thereby relieving

congestion in criminal trial calendars. Compiementing this

advantage for the criminal justice system is the preservation of

the benefits of and added flexibility afforded to plea bargaining,

the defendant being able to tender a guilty plea in exchange for

a reduced charge without having to forfeit appellate review of

vindication of serious claims of illegality or unconstitutionality

in apprehension and pretrial proceedings, as is the case with an

unconditional guilty plea. United States v. Moscow, supra, 588

F. 2d at 887, Note, Conditional Guilty Pleas, 93 Harv. L. Rev.

564, 564-65, 580-81 (1980).

Six of the United States circuit courts appear to reject the

concept of pleading guilty upon the condition of being able to

totally proscribed in the Fourth, Fifth and Ninth Circuits, United

States v. Matthews, 472 F . 2d 1173 (4th Cir. 1973); United States

v. Benson, 579 F. 2d 508 (9th Cir. 1978); United States v. Sepe,

486 F. 2d 1045 (Sth Cir. 1973) (en banc) (per curiam).'' The Sixth

and Seventh Circuits, while condemning the practice, have felt

11. The Fifth Circui has equivocated on the issue. In United States v.

Caraway, 474 F. 2d 25 (1973), rehearing granted, id. (en banc), vacated as moot,

483 F. 2d 215 (en banc) (per curiam), an appeal of denial of a suppression

motion was heard on the merits despite defendant's plea of nolo contendere,

the Fifth Circuit panel hearing the appeal pointing to an agreement between

the defendant and the district court that the suppression ruling would be preserved

_ for appeal. Sitting en banc, the Fifth Circuit vacated as moot the panel's opinion

on the appealability of the suppression issue and on the suppression issue itself,

which the panel decided in defendant's favor, resulting in the indictment’s

dismissal prior to rehearing en banc.

bound to honor it under the extenuating circumstances of its being

incorporated into a plea bargain accepted by the court, United

States v. Cox, 464 F. 2d 937 (6th Cir. 1972) and of the district

court’s having led defendants to believe they could appeal from

a guilty plea, United States v. Brown, 499 F. 2d 829 (7th Cir.

1974). The Tenth Circuit, while indicating disfavor with the

conditional plea, has not formally prohibited the practice. Roeth

v. United States, 382 F . 2d 96 (1967), cert. denied, 390 U.S. 1016,

20 L. Ed. 2d 165 (1968); United States v. Nooner, 564 F . 2d 633

(1977), rehearing denied, id.

By statute in New York, it is an established practice in state

criminal proceedings that a defendant who pleads guilty may

nevertheless thereafter appeal an adverse ruling on a suppression

motion based upon an unlawful search and seizure, a coerced

confession or an improper pretrial identification. N.Y. Crim. Prac.

L. §§710.20, 710.70 (subd. 2). The defendant is not required to

obtain the government’s or the court’s consent to taking the appeal.

The United States Supreme Court, while praising the New

York system as “‘commendable”’ in Lefkowitz v. Newsome, supra,

420 U.S. at 293, 43 L. Ed. 2d at 204, has yet to consider the

issue of the acceptability of a conditional guilty plea and of the

requirements for invoking it and availing himself of its benefits

that can be imposed on the accused constitutionally without

infringing his due process rights under the Fifth Amendment. The

Supreme Court has held that even if the Constitution does not

require the offering of a procedural option, nevertheless, once

it is offered, the conditions for its invocation may not

impermissibly burden or chill the exercise of constitutional rights

and protections. North Carolina v. Pearce, 395 U.S. 711, 724-25,

23 L. Ed. 2d 656 (1969); United States v. Jackson, 390 U.S. $70,

_ $81-82, 20 L. Ed. 2d 138 (1968); see also, Note, Conditional Guilty

Pleas, supra, pp. 577-581.

12

In this case the Second Circuit held that petitioner was not

entitled to appeal the district court’s denial of his motion to dismiss

for noncompliance with the Speedy Trial Act because he had not

received the government's and the district court’s approval of his

appealing that ruling at the time of changing his plea to guilty.

Such consent is required by the Second Circuit, and by the District

of Columbia and Eighth Circuits, in order for a conditional guilty

plea to be accepted. United States v. Doyle, supra, 348 F. 2d

at 719; United States v. Mann, supra; United States v. Rothberg,

supra; Coleman v. Burnett, supra, 477 F. 2d at 1195 (D.C. Cir.);

Jaben v. United States, 333 F . 2d 535 (8th Cir. 1964), aff'd, 381

U.S. 214, 14 L. Ed. 2d 345 (1965), explained in United States

v. Doyle, supra, 348 F. 2d at 719. While the Second Circuit has

indicated that the necessary consents need not be expressly given

but can be implied from the reticence oi the prosecutor or the

district court (see United States v. Burke, supra, 517 F. 2d at

379; United States v. Rico, supra, 594 F. 2d at 321, n. 1), in its

opinion below the Second Circuit gave no consideration to the

fact that at the hearing on his motion to vacate his plea both

the District Court and the government did impliedly assent to

petitioner’s taking an appeal from his guilty plea, the District G@ourt

in granting petitioner’s requests to enlarge his time to notice an

appeal and to continue his bail, and the government in stating

it had no objection to either action.'*

In conflict with the decision below and with the D.C. and

Eighth Circuits, the Third Circuit not only does not require the

government’s consent to a conditional guilty plea but even permits

12. If the Second Circuit was relying on the chronological fact that these

implicit consents were not obtained until efter petitioner had changed his plea

to guilty and been convicted and sentenced thereon, deeming the consents to

be untimely, then its opinion raises for review the further question of whether

the availability of a conditional guilty plea can be restricted as to the time when

the accused must take the necessary steps to exercise the option.

13

the plea over the government’s objection. United States v. Moscow,

supra. This procedure recommends itself particularly inasmuch

as it removes the constitutional objectionability of requiring the

accused to obtain prosecutorial consent which, following successful

negotiation of a favorable plea bargain, will hardly be

forthcoming. There would be no reason at that point for the

prosecutor to give his consent to an appeal. For him the trade-

orf for a light sentence is a sure sentence. Rather than surrender

the benefit of the plea bargain for him, the prosecutor will withhold

his consent, thereby putting the accused in the same position he

would be in were the conditional plea not available: having to

either accept the lenient sentence offered him and thus forego

further assertion of his constitutional claims, or else proceed to

trial and appeal knowing that he will face a heavier sentence if

he loses.. The burden or chilling effect on the assertion of

constitutional claims is the same, whether the conditional plea

is proscribed entirely or whether it is allowed subject to the

government’s and the court’s consent. See United States v. Doyle,

supra, 348 F. 2d at 719 n. 4.

The right to appeal from a criminal conviction has been

described as ‘‘fundamental.’’ Nance v. United States, 422 F. 2d

' $90, 592 (7th Cir. 1970). An appeal from the district court’s

judgment of conviction is a matter of right. Coppedge v. United

States, 369 U.S. 438, 441, 8 L. Ed. 2d 21 (1962); Rodriquez v.

United States, 395 U.S. 327, 329-30, 23 L. Ed. 2d 340, 344 (1969).

Because of the importance of the right of appellate review

in federal criminal cases, and the potentially sizeable effect on

that right and on plea negotiations and trial calendar cong¢ :

of the conditional guilty plea, the Supreme Court should grant

certiorari in this case to thoroughly review this concept for the

_ first time and to unify the conflicting practices among the circuits

as to the availability of the plea option and the manner in which

and time when it can be exercised.

14

B. Waiver Effect of Guilty Plea on Defense of Legal Insufficiency

Under federal criminal procedure, a guilty plea constitutes

a break in the chain of events, bringing the case to a close.

Consistently with the expectation of finality, it is deemed to waive

all prior nonjurisdictional defects in the prosecution, even those

amounting to independent claims of deprivation of constitutional

rights. Blackledge v. Perry, 417 U.S. 21, 29-30, 40 L. Ed. 2d 628

(1974); Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d

235, 243 (1973); La Magna v. United States, 646 F. 2d 775, 778

(2d Cir. 1981); United States v. Cox, supra, 464 F. 2d at 940

(6th Cir.); Marteney v. United States, 216 F. 2d 760, 762 (10th

Cir. 1954).

By its own terms, however, this rule does not end the inquiry

of whether the criminal prosecution is at an end or whether, on

the other hand, the defendant may still take an appeal from his

conviction entered on his plea. If the alleged defect relates to lack

of jurisdiction, to the lack of power of the lower court to hale

defendant before it, then the claim is not waived and may be

raised on appeal. Blackledge v. Perry, supra, (double jeopardy

claim); Menna v. New York, 923 U.S. 61, 46 L. Ed. 195 (same).

The “‘fundamental premises for the conviction’’ remain appealable,

United States v. Doyle, supra, 348 F. 2d at 718-19 (mentioning

subject matter jurisdiction); Roeth v. United States, supra, 382

F. 2d at 98 (10th Cir. 1967).

Relying on United States v. Mann, supra, 415 F . 2d 346 (2d

Cir. 1971) (per curiam) holding the Sixth Amendment speedy trial

deprivation to be a nonjurisdictional defect, the Second Circuit

below ruled that petitioner’s claim of a Speedy Trial Act violation

was nonjurisdictional and therefore was waived by his guilty plea.

As to petitioner’s argument in the District Court on his Rule 35(b)

motion, and in the Court of Appeals in his brief, that the ‘‘M-16

lower receiver’’ petitioner admitted shipping was not a regulated

firearm or regulated component of a firearm, the Second Circuit

held that this was a question of fact for the jury that the defendant

waived by his plea.

The Second Circuit’s opinion is further supported by the

rationale such as appears in the Menna case, that a guilty plea

is an admission of factual guilt, resolving all questions of fact

and therefore obviating the need for a trial. Menna v. New York,

423 U.S. at 62, n. 2, 46 L. Ed. 2d at 197-98. As Mr. Justice White

pointed out in his dissent in Lefkowitz v. Newsome, supra, 420

U.S. at 299, a guilty plea conclusively establishes the defendant’s

factual guilt; there are no factual questions remaining for which

a trial is needed. See United States v. Moscow, supra, 588 F.

2d at 887.

On the other hand, as the Third Circuit observed in the same

Moscow case, a guilty plea is an admission, often tacit, to the

commission of the particular acts alleged to constitute the crime.

Id., 588 F. 2d at 888-89; see also, North Carolina v. Alford, 400

U.S. 25, 32, 27 L. Ed. 2d 162, 168 (1970). By the process of

deductive reasoning, if the acts do not cunstitute a crime, it follows

that there is no admission to the commission of a crime.

Thus, by the weight of authority, the rule in the circuits is

that the defense of failure to charge an offense is not waived by

a guilty plea, and the substantive sufficiency of the accusatory

instrument remains subject to review on appeal. Coleman v.

Burnett, supra, 477 F . 2d at 1195 (D.C. Cir.); Kolaski v. Unitec’

States, 362 F. 2d 847, 848 (Sth Cir. 1966); United States v. Sepe,

supra, 474 F. 2d at 789 (Sth Cir.); United States v. Briscoe, 428

F. 2d 954, 956 n. 2 (8th Cir. 1970), cert. denied, 400 U.S. 966,

27 L. Ed. 2d 386, reh. denied, 401 U.S. 926, 27 L. Ed. 2d 831

' (1971). The failure of the accusatory instrument to state an offense

is deemed a fundamental defect that, by virtue of that fact, can

be raised at any time, even in the face of a guilty plea.'’ United

States v. Pheaster, 544 F. 2d 353, 361 (9th Cir. 1976).

Eschewing both a strict jurisdictional/nonjurisdictional

dichotomy and the straightforward reasoning of the D.C., Fifth,

Eighth, Ninth and Tenth Circuits, the First Circuit analyzed the

appealability of a prosecutorial defect following a guilty plea on

the basis of whether or not the defect is ‘‘directly related to the

substantive matters that would have been presented at trial.’’

On that analysis, the court found in dictum that a claim of

a speedy trial deprivation is not waived by a guilty plea, not

involving the determination of the defendant’s guilt or innocence

by a trial that the defendant chooses to forego. United States

v. DeCosta, 435 F. 2d 630, 632 (1970). On that analysis, the instanty

claim that Count 6 of the indictment fails to allege shipment of

a “‘firearm’’, going directly to the elements of the crime, was

waived by his guilty plea. To that extent, the opinion of the Second

Circuit below accords with the First Circuit’s view. However, on

the issue of the Speedy Trial Act defense’s waiver, the two courts

are in direct conflict.

The question of exactly what defenses or types of defenses

to a federal criminal prosecution are waived as grounds for appeal

by a guilty plea is important and should b+ decided by the Supreme

Court. With the circuit courts presently hoiding conflicting views

on the subject, at times expressing divergent views in the context

of the same opinion, it seems impossible for an accused to know

13. In the words of the Tenth Circuit, ‘‘{O}ne cannot plead guilty to an

offense which is not affirmatively stated in the charge.’’ Marteney v. United

States, supra, 216 F. 2d at 760.

17

the consequences of a guilty plea on his appeal rights.'* As

petitioner brings out in Point II, infra, this confusion can

jeopardize the voluntariness of guilty pleas which rests in good

part upon the accused’s having knowledge of the rights and

defenses he is waiving. Certiorari should be granted to resolve

the conflict between the decision of the Second Circuit below and

the decisions of the D.C., Fifth, Eight, Ninth and Tenth Circuits

as to whether a criminal charge’s legal insufficiency is waived

as a defense by a voluntary plea of guilty.

THE SECOND CIRCUIT DEPARTED FROM THIS

COURT'S STANDARDS FOR ASSESSING A GUILTY PLEA’S

VOLUNTARINESS.

Point I of petitioner’s argument for granting certiorari

proceeds on the assumption that his guilty plea was voluntarily

made. The District Court recited the allocution required by Fed.

R. Crim. P. 11 [subds. (c), (d) and (f)] in order to ascertain whether

there was a factual basis for the plea and to insure that petitioner

was aware of the nature of the charge and of his constitutional

rights to defend same. The Court of Appeals made no finding on

the voluntariness issue, other than to note that petitioner’s prior

counsel obtained an advantageous plea bargain for his client and

that his error on the Speedy Trial Act motion dates may have

14. Judge Friendly’s influental opinion in Doyle, 348 F. 2d at 718-19, can

be read as supporting the result reached below in this case. Nevertheless, in

the same opinion, Judge Friendly advances the opposite view in favor of the

appealability of a failure-to-state-a-charge defense following an unconditional

guilty plea, stating, at 348 F. 2d 718, ‘‘{Fjailure of the indictment to charge

an offense may be treated as jurisdictional, ... ”

been harmless.'’ Petitioner raised in the Second Circuit the issue

of competency of counsel as it affected the voluntariness and

impact of his plea upon his appeal rights, both in his brief and

in an answering affirmation opposing the respondent’s motion

to dismiss Point I of petitioner’s brief. In a series of three cases

commonly known as the Brady Trilogy [Brady v. United States,

397 U.S. 742, 25 L. Ed. 2d 747; McMann v. Richardson, 397

U.S., 759, 25 L. Ed. 2d 763; Parker v. North Carolina, 397 U.S.

790, 25 L. Ed. 2d 790 (1970)], the Supreme Court established

that the proper standard for determining whether a waiver of post-

conviction relief by a counseled plea of guilty is voluntarily and

intelligently made and therefore that due process of law has been

satisfied is whether the advice received from counsel is “‘within

the range of competence required of attorneys representing

defendants in criminal cases.’” McMann v. Richardson, supra,

397 U.S. at 771, 25 L. Ed. 2d at 773; Tollet v. Henderson, supra,

411 U.S. at 266, 36 L. Ed. 2d at 243; see, McCarthy v. United

States, 394 U.S. 459, 466, 22 L. Ed. 2d 418, 425 (1969). Because

the Second Circuit decided the issue without regard to the

applicable decisions of the Supreme Court, and because, under

that standard, petitioner’s plea was not voluntary, the Second

Circuit’s decision constitutes reversible error. 4

A plea of guilty to be deemed voluntary must be made

intelligently and knowingly—an ‘‘inte!!igent relinquishment or

abandonment of a known right.’’ Johnson v. Zerbst, 304 U.S.

1S. Under the “farce and mockery”’ standard for gauging the denial of

the Sixth Amendment right to the effective assistance of counsel, that the Second

Circuit alone of all the federal circuits seems to follow, Barnes v. Jones, 665

F. 2d 427, 431 n. 4, 434 (2d Cir. Nov. 23, 1981), cert. granted, No. 81-1974

(U.S.L.W. 6/8/82), the result reached below may have been correct. But that

is not the correct standard applicable to a determination of the effectiveness

of a counseled guilty plea as a waiver of all otherwise appealable nonjurisdictional

issues.

458, 464, 82 L. Ed. 1461, 1466 (1938). Since a guilty plea is the

equivalent of a confession, it must be ‘‘an intelligent act done

with sufficient awareness of the relevant circumstances and likely

consequences.’’ Brady v. United States, supra, 397 U.S. at 748,

25 L. Ed. 2d at 756; McMann v. Richardson, supra, 397 U.S.

at 766, 25 L. Ed. 2d at 771; cf., Schneckloth v. Bustamante, 412

U.S. 218, 36 L. Ed. 2d 854 (1973) (knowledge of the consequences

is not prerequisite to the legitimacy of a car search since no

constitutional rights to a fair trial are being waived).

To make an intelligent decision to plead guilty the accused

must be informed and knowledgable as to the consequences of

his plea. Note, Conditional Guilty Pleas, supra, pp. 564, 568 n.

19. Specifically, if a guilty plea is to have the effect of waiving

the accused’s right to appeal adverse rulings on procedural claims,

the circuit courts have held that the defendant should be aware

that appellate review of meritorious claims will be lost. Coleman

v. Burnett supra, 477 F. 2d at 1195 (D.C. Cir.); United States

v. Caraway, supra, 474 F. 2d at 28-29 (Sth Cir.); United States

v. Benson, supra, 579 F. 2d at $11 (9th Cir.). A few courts have

intimated that it is necessary that the defendant had an idea of

his chances on appeal. United States v. Cox, supra, 464 F. 2d

at 943-44 (6th Cir.); United States v. Sepe, supra, 474 F. 2d at

789 (Sth Cir.). This is to prevent the guilty plea from becoming

a “‘trap for the unwary”’, Lefkowitz v. Newsome, supra, 420 U.S.

at 293, 43 L. Ed. 2d at 204.

Counsel need not advise defendant correctly as to his chances

on appeal, or fully as to the appeal procedure, but the advice

he gives must be reasonably competent. McMann v. Richardson,

supra. In Strader v. Garrison, 611 F. 2d 61 (4th Cir. 1979),

defendant’s counsel, by looking in the published regulations of

the North Carolina Department of Corrections, could have

determined the correct parole eligibility date. His telling defendant

that the date was years sooner then it was, on which defendant

relied in agreeing to plead guilty, constituted ‘‘gross misadvice”’

and a denial of the Sixth Amendment right to effective assistance

of counsel.

In Bradbury v. Wainwright, 658 F. 2d 1083, 1087 (1981),

the Fifth Circuit noted:

**Counsel must be familiar with the facts and the

law in order to advise the defendant meaningfully

of the options available . . . . This includes the

responsibility of investigating potential defenses

so that defendant can make an informed decision.”’

In the case at bar, petitioner’s counsel obviously did not

familiarize himself with either the facts or the law on the Speedy

Trial Act violation. Had he looked at the docket sheet in the court

clerk’s office, he would have apprised himself within a few minutes

of the correct dates of arrest and dismissal. Had he read the

relevant statutes, he would have been in a position to correctly

urge the correct timetables on the court.'* Had he looked up the

statutory definition of firearm, which is found in the same chapter

of Title 26 as that containing the prohibition of an unregistered

firearm’s shipment, he would have been in a position to advise

his client that there was a fair argument to be made that the count

did not state an offense. He could then have advised petitioner

that, if he did plead to the count, then he should enter a conditional

plea conditioned upon reservation of the right to appeal the

16. Counsel’s affirmation in support of petitioner’s motion to dismiss was

wrong on every other point of law urged with respect to prosecutorial time

limits; viz., that the government had 10 days after arraignment to bring an

indictment (no such time limitation existed) and the government had to be

prepared for trial within six months of arrest [the correct time limit under the

Speedy Trial Act was 100 days, see 26 U.S.C. §§3161(b), 3161(c(1)].

21

insufficiency of the count and the. . .Al of the Speedy Trial Act

motion.'’

These shortcomings are a far cry from a lawyer’s failure to

anticipate changes in the law such as were involved in the Brady

trilogy and in Tollet, which the Supreme Court found not to fall

short of the McMann standard. But where counsel is unaware

of present controlling law and procedure, is ignorant of critical,

basic and controlling information and, moreover, fails to take

‘any steps to reargue the defendant’s defenses after being notified

of the correct information by the government, then he has acted

beneath the applicable standard of r sonable competence and

his client’s plea may not stand. Had | se Second Circuit applied

the applicable standard, it would have had to reverse petitioner’s

conviction as being predicated on an involuntary and unintelligent

plea made without competent advice of counsel.

17. Petitioner disagrees with the Second Circuit’s suggestion that the result

the district court reached, using petitioner’s counsel's dates, was correct. Given

the questionability of the argument that the prohibitions of the Speedy Trial

Act against untimely prosecutions and against reprosecution for the same charge

once its initial ur nely prosecution has been dismissed are rendered inoperative

where the government and not the accused moves to dismiss the initial

prosecution, and even were that argument ultimately sustained, reasonably

competent counsel would have moved to dismiss the second prosecution, on

the basis of the correct Speedy Trial Act dates. The argument for a Speedy

Trial Act violation calling for the reprosecution’s dismissal, at least as to Count

6, was substantial enough that a reasonably competent criminal lawyer would

have urged it and would have counseled the petitioner to preserve it and the

failure-to-state-an-offense issue for appeal by taking a conditional guilty plea.

Judging from the subsequent history of the case, it is not at all certain that

the government would not have consented, for when substituted counsel on

October Sth asked for substantial concessions of extension of time and

continuation of bail so as to appeal these issues, the government did not hesitate

to state it had no opposition to these efforts to take an appeal.

22

Because the Second Circuit decided the voluntariness issue

in a way in conflict with the appiicable decisions of the Supreme

Court, certiorari should be granted to review the decision. In

granting certiorari recently in Jones v. Barnes, supra, 50 U.S.L.W.

3963 (June 7, 1982), in which federal habeas corpus relief from

a state conviction after trial was granted because of the

inadequacies of appellate counsel in not urging points for reversal

of the conviction suggested by the defendant, the Supreme Court |

has indicated that the effectiveness of a criminal lawyer’s

representation is an important and timely federal question that

is ripe for review. The instant case raises the same question and,

therefore, it should be reviewed by the Court in order to arrive

at a thorough disposition of the issue.

CONCLUSION

The petition for a writ of certiorari to review the decision

of the United States Court of Appeals for the Second Circuit

should be granted.

Dated: New York, N.Y.

July 14, 1982

Respectfully submitted,

CHARLES A. GIULINI, JR.

Attorney for Petitioner

MICHAEL JOSEPH J. BARNAS

Of Counsel