# Petition — Nunziata v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 907

## Text

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 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 —
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0460%3A1. Public record. Not legal advice.