Appendix — Brown v. United States

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APPENDICES

APPENDIX “A”

: Ju the

United States Court of Appeals

Dor the Seventh Circuit

SEPTEMBER 'ERM, 1973 Apri Session, 1974

No. 74-1182

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

vs.

PAUL BROWN, COMETAS DILANJIAN, THOMAS

SHERIDAN, ELLEN SUE STEWART and

SANDRA STEWART,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of Illinois,

Eastern Division.

No. 73 CR 630

Tuomas J. McMuuen, Judge.

Arcurp June 6, 1974—Decwep Juty 3, 1974

Before Cuark, Associate Justice,* Sprecner, Circuit

Judge, and Beamer, District Judge. **

* Associate Justice Tom C. Clark of the Supreme Court of the

United States (Retired) is sitting by designation.

** District Judge George N. Beamer of the Northern District of

Indiana is sitting by designation.

App. 2

Sprecuer, Circuit Judge. This appeal pivots upon the

validity of a warrantless ‘‘border search’’ made at Chi-

cago which resulted in the discovery of a large quantity of

cocaine.

I

Seven defendants, including three men (Paul Brown,

Cometas Dilanjian and Thomas Sheridan) and two sets

of sisters (Mary Ann and Susan Prader, and Ellen Sue

. and Sandra Stewart) were indicted in Count I for con-

spiracy in violation of 21 U.S.C. § 963 to import cocaine

into the United States in violation of 21 U.S.C. § 952{a)

_and to distribute cocaine outside the United States know-

ing that it would be imported in violation of 21 U.S.C.

$ 959. In addition, the Prader sisters were indicted in

Count II of importing 1,917.3 grams of cocaine in viola-

tion of section 952(a) and the Stewart sisters were in-

dicted in Count III of distributing the same quantity know-

ing it would be imported, in violation of section 959.

The indictment alleged and all the defendants admitted

at the time of pleading guilty to all counts that in March,

1973, the men and the Prader sisters discussed at Chicago,

Illinois, the importation of cocaine; that on April 2, 1973,

the Praders traveled by airplane from Chicago to Acapul-

co, Mexico; that on April 5, the Stewarts traveled from

Peru, South America, where they received the cocaine, to

Acapulco, where they delivered it to the Praders a few

days later; and that on April 8, the Praders traveled by

airplane from Acapulco to Chicago, carrying the 1,917.3

grams on their persons.

| App. 3

Mary Ann Prader had passed through Customs inspec-

tion at O’Hare International Airport on April 8 and was

waiting a short distance from the inspection area for her

sister. As Susan Prader was going through the Customs

| line, Customs Patrol Officer Goodson observed that her

dress or skirt ‘‘fitted rather tightly at the waistline and

then sort of flared out to a length to perhaps to her ankles’’

{ resulting in a bulge in the area of her stomach. He became

suspicious because the clothing did not appear normal on

her slender frame. Goodson then escorted Susan to a pri-

vate search room and sought the assistance of Sharon

Holihan and Violet Anderson, two female employees of the

Customs Service.

According to Mrs. Holihan’s testimony at the suppres-

sion hearing, ‘‘we were told by . . . Goodson that he was

m suspicious of Susan Prader because of her long clothing

and mostly because she appeared to have a bulge on her

abdomen below her waist.’’? When the three women were

alone, the Customs inspectors advised Susan that they

were concerned with the buige in the area of her waist or

midriff, whereupon she voluntarily unzipped her skirt,

pushed it four to six inches below her waist to expose

her abdomen, then held the skirt at that point for a few

seconds and brought it back up.

Because this movement was done without any instruc-

tions from the Customs inspectors and because Susan

‘*pushed the skirt down and then stopped . . . and brought

it back up,’’ Mrs. Holihan ‘‘became suspicious that per-

haps she had something underneath her skirt further

down on her legs.’’ Without removing any clothing, Mrs.

Holihan lifted Susan’s skirt up from the bottom to above

her knees where she discovered packages bandaged or

taped to her legs. One of the inspectors then left the

ese eEESSEESESEENNEEEEneE aummmeen

App. 4

private room and advised Goodson of their discovery.

After the contents of the packages were field tested and

found positive, Goodson identified himself to Mary Ann

and took her back to the inspection room, where similar

packages were found taped to her legs.

An evidentiary hearing was held on December 19, 1973

upon the motions of Susan and Mary Prader to suppress

the items seized from their persons at O’Hare Airport

on April 8. On December 27, the court denied the motions

in a written opinion in which it relied in part upon United

States v. Robinson, 414 U.S. 218 (1973).

On January 16, 1974 the three male defendants and

the Prader sisters pleaded guilty and on the following

day the Stewarts also pleaded guilty. In accepting the

Praders’ pleas, the district judge said that ‘‘I think you

could preserve your right to appeal on . . . [the motion

to suppress] even if you plead guilty, subject to that

condition.’’

The government did not acquiesce in the ‘‘condition’’

purporting to preserve the right to appeal the suppression

question. In fact the prosecutor pointed out that if

pleading guilty did not result in the waiver of the right

to appeal ‘‘every defendant that comes into the building

.. . [for] sentencing to see what they get, and if they

don’t like what they get .. . then they take it up on ap-

peal.’?

The three male defendants were each sentenced to three

years’ imprisonment, Susan Prader and Sandra Stewart

each to one year, and Mary Ann Prader and Ellen Sue

Stewart each to six months’ imprisonment.

App. 5

All seven defendants appealed. The Praders argued

that their motions to suppress should have been granted.

The other defendants argued the voluntariness of their

guilty pleas and their standing to seek suppression of

the evidence found on the persons of the Praders.

The government argued that the Praders waived the

suppression question by pleading guilty, that the other

defendants had no standing to raise it, that in any event

the suppression motions were properly denied, and that

the guilty pleas were voluntary and in full compliance

with Fev. R. Crm. P. il.

II

The facts of this case in relation to the suppression

question are quite similar to those in United States v.

Cox, 464 F.2d 937, 944 (6th Cir. 1972), where the Sixth

Circuit observed that “the district court allowed defen-

dants the best of two worlds”’ in that ‘‘[t]hey were al-

lowed to plead guilty to reduced charges, while reserving

their right to appeal as if they had maintained innocence

through trial.’’ The court concluded that the procedure

of allowing an appeal on nonjurisdictional grounds fol-

lowing intelligent and voluntary pleas of guilty violated

public and judicial policy and ‘‘will not be countenanced

in the future in this Circuit.’’ 464 F.2d at 945. Never-

theless the court decided in that case to honor the agree-

ment entered into between the defendants and the prosecu-

tor and accepted by the district court, as being required

by the plea bargaining process. In the present case the

prosecutor did not consent to the availability of the right

of appeal as part of any plea bargaining.

App. 6

The rationale of Cox appears to find support in Tollett

__v. Henderson, 411 US. = 267 (1973), where the Supreme

Court said:

.We thus reaffirm the principle shovigitnta in the

Brady trilogy:* a guilty plea represents a break in

the chain of events which has preceded it in the crimi-

nal process. When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of

the offense with which he is charged, he may not

thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred

prior to the entry of the guilty plea. He may only

attack the voluntary and intelligent character of the

guilty plea by showing that the advice, be received

from counsel was not within the standards set forth

in McMann. (Footnote supplied.)

_ However, as the Cox court, we hesitate to refuse to

consider the merits of the suppression guesticu inasmuch

as the district court held out some reason for the defen-

dants to believe that they were pleading guilty ‘‘subject

._to that condition,’’ albeit lacking the consent of the prose-

cutor to that condition. Cf. Santobello v. New York, 404

U.S. 257, 262 (1971). We proceed therefore to a considera-

tion of the propriety of the district court’s denial of the

motions for suppression.

Ii

Although Chicago is more than 1200 miles from the

Mexican border, the search of the Prader sisters at O’Hare

1 ai v. United States, 397 U.S.'742, 750 (1970), McMann v.

Richardson, 397 U.S. 759, 770 (1970), and Parker v. North

Carolina, 397 U.S. 790 (1970).

=—- saemeene

App. 7

International Airport upon their arrival on a nonstop

flight from Acapulco constituted a border search. ?

19 U.S.C. § 482 provides in part as follows:

Any of the officers or persons authorized to board

or search vessels may stop, search and examine .

any... person, on... whom he or they shall suspect

there is merchandise ‘which ... Shall have been intro-

duced into the United States in any manner contrary

to law ...; and if any such officer or other person

so authorized shall find any merchandise on or about

any such... person ... which he shall have reason-

able cause to believe to have been unlawfully intro-

duced into the United States .. ., he shall seize and

secure the same for trial.

‘‘When a person or vehicle is detained at the border

just after entering the Country, the agent’s statutory au-

thority to search is virtually unfettered except perhaps as

to due process concerning the manner, not the cause, of

the search... . Presumably, they are limited only by

common standards of decency and propriety.’’ United

States vy. Storm, 480 F.2d 701, 704 (5th Cir. 1973). ‘‘Border

searches, absent search warrants or probable cause, have

been uniformly upheld by the courts as long as the cus-

toms agents have had a reasonable suspicion of violations

’ of the customs laws.’’ United States v. Thompson, 475

F.2d 1359, 1362 (5th Cir. 1973).

What is required to be balanced in any particular case

is the level of suspicion of the agent against the level of

indignity perpetrated upon the traveler. ‘‘Mere suspi-

cion’’ does not justify a search within body cavities,

. . « [A] search of the passengers and cargo of an airplane

arriving at a St. Louis airport after a nonstop flight from Mexico

City would clearly be the functional equivalent of a border search.”

Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973).

ee eesecnsresseesenetesesnsscoeneatneeens semanas

App. 8

Henderson v. United States, 390 F.2d 805, 808 (9th Cir.

1967), nor the administration of emetics, United States

v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970).

Although both of those cases obviously involved a greater

indignity than simply a strip search, Henderson suggested

that strip searches should require a ‘‘real suspicion,’’ 390

F.2d at 808, and Guadalupe-Garza defined ‘‘real suspi-

cion.’’

‘*Real suspicion”’ justifying the initiation of a strip

search is subjective suspicion supported by objective,

articulable facts that would reasonably lead an ex-

perienced, prudent customs official to suspect that

a particular person seeking to cross our border is con-

cealing something on his body for the purpose of

transporting it into the United States contrary to

law.

421 F.2d at 879.

The indignity in the present case did not rise to a

stripping or strip search. Susan Prader, in a private room

in the presence of two other women, voluntarily pulled

her skirt a few inches down from her waist and bared her

midriff for a few seconds. Shortly thereafter one of the

female inspectors lifted Susan’s ankle-length skirt to a

point just above her knees. She was not requested to nor

did she strip, nor did the female inspectors strip her.

The suspicion developed first in the mind of the male

Customs inspector who found an incongruity in a long,

flared skirt with a waistline bulge on a slender girl.

In United States v. Berard, 281 F. Supp. 328 (D. Mass.

1968), suspicious bulges on the persons of two travelers

were found to warrant the opening of their shirts, which

revealed them both to be bound in tape from waist to

armpits with plastic bags of heroin. In United States v.

App. 9

Glaziou, 402 F.2d 8 (2d Cir. 1968), nervousness and a

waistline bulge justified a touching and squeezing search

which revealed heroin. In Shorter v. United States, 469

F.2d 61, 64 (9th Cir. 1972), heavy clothing in warm

weather and a ‘‘bulge, or irregularity, in his shirt at the

waist line’? provided a sufficient basis for requiring the

traveler to remove his overcoat and suit coat and to empty

his pockets, whereupon he voluntarily lifted his shirt, re-

vealing a waist girdle with plastic bags of heroin.

In United Staves v. Price, 472 F.2d 575 (Sth Cir. 1973),

a strip search had been conducted on the basis of a female

traveler’s nervousness during questioning and a suspicious

bulge around her waist. Heroin and cocaine were eventu-

ally found concealed between her lower limbs. A majority

of the court found the search to be excessive since early

in the examination it became apparent that the suspicious

bulge was simply body fat. In a dissenting opinion, Judge

Kilkenny pointed out the distinction between a strip search

and a body cavity search and concluded that the inspectors

had a ‘‘real suspicion’? sufficient to conduct the subsequent

strip search.

In the present case there was no strip search. Susan

Prader testified that none of her clothing had been re-

moved. In addition, although Susan’s voluntary baring of

her midriff had indicated, as in Price, that the bulge at her

waist was not contraband, that very act developed a new

suspicion in the minds of the inspectors. As Mrs. Holihan

testified, the quick, unrequested lowering of her skirt top

a few inches but no lower, followed by the rapid pulling

of the skirt back up, caused Mrs. Holihan to become sus-

picious ‘‘that perhaps she had something underneath her

skirt further down on her legs.’? We conclude that the

inspectors harbored ‘‘real suspicion.’’ Both Goodson and

Holihan were experienced Customs inspectors, Goodson

App. 10

for thirteen years and Holihan for three years. The dis-

trict judge who observed and heard the testimony conclud-

ed:

The patrol officer had a reasonable suspicion co"-

cerning what might be on Susan’s person, and this

justified detaining her for a reasonable search of her

person beyond the specified part which had aroused

suspicion. ... Furthermore the experienced searching

agent acquired her own suspicion because of the de-

fendant’s actions during the initial search.

The further search turned up the packages, and

these in turn afforded the patrol officer with reason-

able grounds to suspect sister Mary Ann who had

been passed previously. ... We see no reason why

this subsequent suspicion need to occur only while

the suspect was within the confines of the inspection

area; Mary Ann was still inside the International

Building, a mere fifteen feet outside the door of the

inspection area, and she admittedly had no intention

of leaving the building before her sister.

In United States v. Glaziou, 402 F.2d 8, 14-15 (2d Cir.

1968), two seamen had exited the pier gatehouse and were

200 feet up the street when the Customs officer noticed

the waistline bulge around one of them. The court ap-

proved the search of both of them, concluding that ‘‘the

officers were justified in searching Lemieux as soon as the

contraband was uncovered on his companion.’’ Here the

material found on Susan was field tested and determined

to be cocaine before Mary Ann was searched. The search

of Mary Ann consisted also of only the lifting up of her

skirt.

Upon the question of the possible indignity suffered by

the sisters, the district judge found:

App. 11

Nor was this an offensive invasion of defendants’

privacy. ... The two searches which produced the

results could have been performed by a thorough

pat-down in public, particularly if defendants had

not been wearing the long full skirts which in part

caused the suspicion which led to the searches in the

first place.

Actually the skirts of each girl were lifted in a com-

pletely private room in the presence only of the two

female inspectors.

We conclude that the level of suspicion was high enough

to justify the relatively dignified search to which both

girls were subjected. The trial court correctly denied

the motions to suppress the evidence obtained in the

searches.

IV

Inasmuch as we find the searches and seizures relating

to the Praders to have been justified, we need not con-

sider the standing of the other defendants to challenge

the evidence produced thereby. Cf. Alderman v. United

States, 394 U.S. 165 (1969).

In regard to the interrogation of the defendants by

the court before accepting their guilty pleas, we conclude

that the court adequately addressed each defendant per-

sonally and detern.ined that the plea was made voluntarily

with understanding of the charge and the consequences

of the plea as required by Rule 11 as it read at the time

of the trial and as it now reads. *

3 On April 23, 1974, the Supreme Court approved and transmitted

to Congress, to take effect on August 1, 1974 if approved, amend-

ments to the Federal Rules of Criminal Procedure, including an

amended Rule 11. See Moody v. United States, ........ aE cine

(7th Cir.), No. 73-1853, May 22, 1974.

App. 12

Specifically, the Stewart sisters complained that they

were not advised of the three-year special parole term,

but prior to sentencing when they still had the oppor-

tunity to withdraw their guilty pleas, the court discussed

the parole term in the presence of all defendants and their

counsel,

In regard to defendant Sheridan, it was argued that

it was not sufficiently determined whether his known use

of methadone influenced his plea. The record shows that

the court spent a relatively long period of time in the

presence of all of the defendants at the acceptance of the

pleas and again at sentencing and addressed all of them,

including Sheridan, personally on several occasions. At

sentencing, a representative of the Methadone Maintenance

Institute was present and said:

Mr. Sheridan is a patient at the Methadone Main-

tenance Institute. He has been very faithful in his at-

tendance at the clinic. We have weekly therapy ses-

sions. Mr. Sheridan has come to those sessions on a

sort of regular basis. We feel that he is trying very

hard to participate well in the program. We feel that

his regular attendance is testimony to that fact.

Whereupon the following took place:

THE COURT: Well, Mr. Sheridan’s statement to

the probation officer is, apparently, that he was not

getting very much treatment from your organization

and apparently wasn’t benefitting very much from it.

Is that correct?

DEFENDANT SHERIDAN: No, sir. That was

the Veterans Administration when I was under the

program over there. I switched over to the Methadone

Maintenance Institute which is much better, really.

App. 13

THE COURT: When did you switch over?

DEFENDANT SHERIDAN: I started in August

at the VA and I switched over in about September, I

believe.

THE COURT: Of ’731

DEFENDANT SHERIDAN: Yes.

Inasmuch as Sheridan never contended that he was

under the influence of drugs at the time of his plea, in

view of his satisfactory treatment for about five months

prior to his plea, and because of the court’s close personal

observation of him, we conclude that Sheridan’s guilty

plea, as that of the other defendants, was voluntary.

Convictions of all defendants are affirmed.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of —

Appeals for the Seventh Circuit.

App. 14

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 25, 1974

Before

Hon. Tom C. CiarK, Associate Justice*

Hon. Rosert A. Sprecuer, Circuit Judge

Hon. Grorce N. Beamer, Chief Judge*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 74-1182 vs.

PAUL BROWN, et al., Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

73 CR 630

On consideration of the petition fur rehearing and sug-

gestion that it be reheard en banc filed in the above-entitled

cause, no judge in active service having requested a vote

hereon, nor any judge having voted to grant the suggestion,

and all of members of the panel (or majority) having voted

to deny a rehearing,

IT IS ORDERED that the petition for a rehearing in

the above-entitled cause be and the same is hereby

DENIED.

*Hon. Tom C. Clark of the Supreme Court is sitting by desig-

nation.

* Hon. George N. Beamer of the Northern District of Indiana

is sitting by designation.

App. 15

APPENDIX “B”

RULE 11. Pleas

A defendant may plead not guilty, guilty or, with the

consent of the court, nolo contendere. The court may re-

fuse to accept a plea of guilty, and shall not accept such

plea or a plea of nolo contendere without first addressing

the defendant personally and determining that the plea

is made voluntarily with understanding of the nature of

the charge and the consequences of the plea. If a defen-

dant refuses to plead or if the court refuses to accept a

plea of guilty or if a defendant corporation fails to ap-

pear, the court shall enter a plea of not guilty. The court

shall not enter a judgment upon a plea of guilty unless

it is satisfied that there is a factual basis for the plea.

As amended Feb. 28, 1966, eff. July 1, 1966.

App. 16

APPENDIX “c”

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

vs.

PAUL BROWN, COMETAS DILANJLAN, MARY ANN

PRADER, SUSAN PRADER, THOMAS SHERIDAN,

ELLEN SUE STEWART, and SANDRA STEWART

Judge McMillen

No. 73 CR 630 — Violation: Title 21, United States Code,

Sections 952(a), 959, and 963

The JULY 1973 GRAND JURY charges:

1. rom on or about March 1, 1973 to on or about April

30, 1973, at Chicago, in the Northern District of Illinois,

Eastern Division, and elsewhere, the defendants,

PAUL BROWN /

COMETAS DILANJIAN /

MARY ANN PRADER,

SUSAN PRADER,

THOMAS SHERIDAN, /

ELLEN SUE STEWART, and

SANDRA STEWART,

unlawfully, wilfully and knowingly did combine, conspire,

confederate and agree together and with each other, to

commit certain acts, that is: to knowingly and intentionally

import a quantity of a substance containing cocaine, a

Schedule II Narcotic Drug Controlled Substance, into the

App. 17

United States from Acapulco, Mexico, in violation of Title

21, United States Code, Section 952(a); and, to knowingly

and intentionally distribute a quantity of a substance con-

taining cocaine, a Schedule II Narcotic Drug Controlled

Substance, at Acapulco, Mexico, a place outside the terri-

torial jurisdiction of the United States, knowing that said

substance would be unlawfully imported into the United

States, in violation of Title 21, United States Code, Sec-

tion 959.

2. It was part of the conspiracy that defendants would

obtain approximately 1,917.3 grams 07 a substance contain-

ing cocaine at a place outside the United States.

3. It was further a part of the conspiracy that defen-

dants would unlawfully import approximately 1,917.3 grams

of a substance containing cocaine into the United States.

4. It was further a part of the conspiracy that the de-

fendants would misrepresent, conceal, hide and cause to be

misrepresented, concealed and hidden, the purposes of and

the acts done in furtherance of the conspiracy and to ac-

complish the purposes and objectives of the conspiracy, the

defendants did perform, among others, the following overt

acts:

a. In or about March of 1973, defendants PAUL

BROWN, COMETAS DILANJIAN, and THOMAS

SHERIDAN had a conversation with defendants MARY

ANN and SUSAN PRADER, at Chicago, Illinois, concern-

ing the unlawful importation of a quantity of cocaine.

b. In or about the end of March, 1973 or the beginning

of April, 1973 COMETAS DILANJIAN and THOMAS

SHERIDAN paid MARY ANN and SUSAN PRADER

$1,000.00 each for the purpose of obtaining cocaine, a

narcotic drug controlled substance.

App. 18

e. On or about April 2, 1973, SUSAN and MARY ANN

PRADER traveled by plane from Chicago, Illinois to

Acapulco, Mexico.

d. On or about April 5, 1973, SANDRA and ELLEN

STEWART traveled from Peru, South America to Acapul-

co, Mexico for the purpose of distributing cocaine, a

narcotic drug controlled substance, to SUSAN and MARY

ANN PRADER.

e. On or about April 7, 1973, SANDRA and ELLEN

STEWART had a conversation with SUSAN and MARY

ANN PRADER, at Acapulco, Mexico concerning the un-

lawful importation of cocaine, a narcotic drug controlled

substance.

f. On or about April 7, 1973, SANDRA and ELLEN

STEWART met with SUSAN and MARY ANN PRADER

at Acapulco, Mexico for the purpose of distributing

cocaine, a narcotic drug controlled substance.

g. Onor about April 8, 1973, SUSAN and MARY ANN

PRADER traveled from Acapulco, Mexico to Chicago, II-

linois, in possession of approximately 1,917.3 grams of a

substance containing cocaine, a narcotic drug controlled

substance. ;

In violation of Title 21, United States Code, Section 963.

COUNT TWO

The JULY 1973 GRAND JURY further charges:

On or about April 8, 1973, at O’Hare International Air-

port, in the Northern District of Illinois, Eastern Division,

MARY ANN PRADER and

SUSAN PRADER,

defendants herein, knowingly and intentionally did import

approximately 1,917.3 grams of a substance containing

cocaine, a Schedule If Narcotic Drug Controlled Sub-

stance, into the United States from Acapulco, Mexico;

a a ee Leer etn an Se

eee

App. 19

In violation of Title 21, United States Code, Section

952(a).. é

COUNT THREE

The JULY 1973 GRAND JURY further charges:

On or about April 7, 1973, at Acapulco, Mexico, a place

outside the territorial jurisdiction of the United States,

ELLEN SUE STEWART and

SANDRA STEWART,

defendants herein, knowingly and intentionally did dis-

tribute approximately 1,917.3 grams of a substance contain-

ing cocaine, a Schedule II Narcotic Drug Controlled Sub-

stance, knowing that such: substance would be unlawfully

imported into the United States;

In violation of Title 21, United States Code, Section 959.

A TRUE BILL:

FOREMAN

UNITED STATES ATTORNEY

JBB:ekh

ps Maa ! "| App, 20

APPENDIX “‘D” |

21 § 952 Importation of controlled substances — Controlled

substances in schedules I or II and narcotic drugs in

schedules III, IV, or V; exceptions

(a) It shall be unlawful to import into the customs terri-

tory of the United States from any place outside thereof

(but within the United States), or to import into the United

States from any place outside thereof, any controlled sub-

stance in schedule I or II of subchapter I of this chapter,

or any narcotic drug in schedule III, IV, or V of subchapter

I of ‘this chapter, except that—

(1) such amounts of crude opium and coca leaves

as the Attorney General finds to be necessary to pro-

vide for medical, ‘scientific, or other legitimate pur-

poses, and

(2) such amounts of any controlled substance in

schedule I or II or any narcotic drug in schedule III,

IV, or V that the Attorney General finds to be neces-

sary to provide for the medical, scientific, or other

legitimate needs of the United States—

(A) during an emergency in which domestic

supplies of such substance or drug are found by

the Attorney ——— to Leg inadequate, or

21 § 959. Manafctare of dstebton for page of slants

importation

It shall be unlawful for any person to manufacture or

distribute a controlled substance in schedule I or II—

(1) intending that such substance will be unlawfully

imported into the United States; or

‘

App. 21

(2) knowing that such substance will be unlawfully

imported into the United States.

This section is intended to reach acts of manufacture or

distribution committed outside the territorial jurisdiction

of the United States. Any person who violates this section

shall be tried in the United States district court at the

point of entry where such person enters the United States,

or in the United States District Court for the District of

Columbia.

Pub.L. 91-513, Title III, § 1009, Oct. 27, 1970, 84 Stat. 1289.

*

21 § 963 Attempt and conspiracy

Any person who attempts or conspires to commit any

offense defined in this subchapter is punishable by imprison-

ment or fine or both which may not exceed the maximum

punishment prescribed for the offense, the commission of

which was the object of the attempt or conspiracy.

Pub.L. 91-513, Title ITI, § 1013, Oct. 27, 1970, 84 Stat. 1291.

App. 22

APPENDIX “E”

In the

United States Court of Appeals

For the Seventh Circuit

SepremBee Trem, 1973 Apri Szssion, 1974

No. 73-1853

JosE Moopy, Petitioner-Appellant,

vs.

Unrrep States or AMERICA,

Respondent-A ppellee.

Appeal from the United States District Court for the

Eastern District of Illinois. — No. CR-72-40-D

Henry S. Wise, Judge.

Arcuep Apri. 19, 1974—Dercipep May 22, 1974

Before Swyaert, Chief Judge, Castiz, Senior Circuit

Judge, and Sprecuer, Circuit Judge.

SprecHer, Circuit Judge. Although the conviction in-

volved here is affirmed, we are using this appeal to attempt

to forestall unnecessary appeals and retrials in the future

based upon alleged plea bargaining not shown of record.

I

Defendant Jose Moody was indicted for possession, with

intent to distribute, of approximately 295 grams of heroin

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

On August 28, 1972, he appeared with retained counsel

and pleaded not guilty. On September 13, he reappeared

App. 23

with the same retained counsel and withdrew his not guilty

plea and pleaded guilty. At that time the court addressed

the defendant personally and attempted to determine

whether the plea was made voluntarily with understanding

of the nature of the charge and the consequences of the

plea. Rule 11, Fev. R. Crrm P. Defendant was sentenced

on October 10, 1972 to five years’ imprisonment and, in

addition, to a special parole term of three years.

On January 3, 1973, defendant submitted pro se his

sworn petition for reduction of sentence in which he claimed

that ‘‘petitioner’s attorney .. . used his position to coerce

the guilty plea by offering a ninety day jail sentence with

five years probation to follow.’’ The petition was denied

on January 11, the court upon review of the record find-

ing that the plea of guilty was entered freely and volun-

tarily by the defendant.

On February 8, 1973, defendant submitted pro se his

signed but not sworn motion to withdraw his guilty plea

- and to vacate the illegal sentence in which he alleged that

his retained counsel had told him ‘‘that he has made a

deal with the U. S. Attorney through a plea bargaining

action’? whereby defendant ‘‘would receive not over a nine

(9) month sentence of imprisonment and the remaining

part of his sentence on probation.’’ He further alleged

that his counsel had instructed him as to the answers

to be given to the sentencing judge and that ‘‘the judge

was in on the deal.’’ The motion was denied on March

26, 1973, the court upon another review of the record

finding that defendant ‘‘knew and understood the charges

against him, and the consequences of a plea of guilty,’’

and that defendant ‘‘was represented by competent counsel

. of his own choosing, and no dissatisfaction was ex-

pressed’’ by him ‘‘until approximately four months after

judgment was enter

App. 24

In permitting defendant to proceed in forma pauperis

in this court, Judge Stevens on September 7, 1973 raised

the question: ‘‘Would it be appropriate to require the

petitioner, in order to obtain an evidentiary hearing,

to support his general allegations by either (a) affidavit

of the lawyer who represented him at the arraignment,

or (b) an affidavit of his own containing sufficient specific

factual detail to indicate that there is probable merit to

his claim.’’

The defendant appealed on the grounds that (1) the

district court failed to address the defendant personally,

(2) the record does not show that defendant voluntarily

and understandingly entered the plea of guilty, and (3)

the defendant was entitled to an evidentiary hearing upon

his allegation that his guilty plea was induced by his

retained attorney’s promise of a lighter sentence.

II

Prior to accepting defendant’s guilty plea on September

13, 1972, the district court addressed twenty-one questions

to the defendant personally, covering the maximum pos-

sible penalty, the defendant’s right to plead not guilty and

right to a jury trial, whether the defendant desired to plead

guilty and to waive a jury trial, whether he was coerced

or given promises or threatened or intimidated, whether

defendant was physically or mentally ill, addicted to

narcotics or alcohol, and whether he knew the charges

against him and was guilty of those charges. Defendant’s

challenge to the completeness of these Rule 11 inquiries

went to the requirement that the judge satisfy himself

that ‘‘there is a factual basis for the plea.’? McCarthy v.

United States, 394 U.S. 459, 467 (1969).

App. 25

On September 13, the court asked the defendant per-

sonally whether he knew the charge against him and

whether he was guilty of that offense. Two weeks earlier

when he had pleaded not guilty, the charge was stated

in detail to him by the court and by the prosecutor. Prior

to sentencing on October 10, when he still had an oppor-

tunity to withdraw his guilty plea, the court asked the

following questions of the defendant relative to the factual

basis for the plea:

THE COURT: You did have this heroin in your

possession, is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: How much did you have?

THE DEFENDANT: About twelve ounces.

THE COURT: What would twelve ounces of

heroin be worth?

THE DEFENDANT: I don’t know. The man was

going to give me a thousand dollars for each one.

THE COURT: A thousand dollars an ounce?

THE DEFENDANT: Yes. That is what he say.

THE COURT: How long had you had this heroin?

THE DEFENDANT: Well, I had it about a month.

THE COURT: About a month.

THE DEFENDANT: He bring it to me and I

put it on the farm.

THE COURT: Sir?

THE DEFENDANT: A friend of mine brought

it to me so I can sell it and I keep it on the farm.

I didn’t want to sell it. I didn’t know anybody so I

had a friend of mine come to me and asked if I could

find some so I said, ‘‘ Yes, I know where I can find

some.’’ That is how it happened.

cs * *

THE COURT: Where did you get this heroin?

THE DEFENDANT: A friend of mine brought it

to me.

App. 26

THE COURT: You kept it in your possession?

THE DEFENDANT: I put it on the farm. I put

it in a can and dropped it in a hole there because

I don’t want to fool with it.

We conclude that the district court adequately addressed

the defendant personally and determined that the plea

was made voluntarily with understanding of the nature

of the charge and the consequences of the plea, as re-

quired by Rule 11 as it read at the time of the trial and

as it now reads.

Defendant’s final contention was that he was entitled

to an evidentiary hearing regarding his allegation of plea

bargaining.

The Supreme Court said in McCarthy that ‘‘Rule 11

is designed to eliminate any need to resort to later fact-

finding proceeding ‘in this highly subjective area.’’’ 394

U.S. at 469. At present, Rule 11 makes no requirement

relating to the disclosure of alleged plea bargains (see

Part III hereof).

In Machibroda v. United States, 368 U.S. 487 (1962),

the prisoner filed a motion under 28 U.S.C. § 2255 to

vacate his sentence, stating that in violation of Rule 11

the court had accepted the guilty plea without first

determining its voluntariness when in fact plea bargaining

had taken place. The opinion does not disclose what,

if anything, the trial court had done in regard to a Rule

11 interrogation, but the defendant did file an extensive

and highly detailed affidavit recounting the specifics of

the promises made. The Court’s opinion contains the

complete affidavit and it is characterized as ‘‘detailed and

specific.”” 368 U.S. at 495. The Court vacated the judg-

ment denying a hearing in order that a hearing be held.

However the Court said at 495-96:

App. 27

What has been said is not to imply that a movant

must always be allowed to appear in a district court

for a full hearing if the record does not conclusively

and expressly belie his claim, no matter how vague,

conclusory, or palpably incredible his allegations may

be. The language of the statute does not strip the

district courts of all discretion to exercise their com-

mon sense.

. « *

There wi!l always be marginal cases, and this case

is not far from the line. But the specific and detailed

factual assertions of the petitioner, while improbable,

cannot at this juncture be said to be incredible.

Machibroda’s detailed affidavit was made several years

after his conviction. In the present case a few months

after his conviction, defendant made the bare-bones allega-

tion that he was promised a ninety-day jail sentence and

a month later he made the general allegation that he was

promised a nine-month sentence of imprisonment. We

do not believe that defendant triggered the need for an

evidentiary hearing. See Fontaine v. United States, 411

U.S. 213 (1973), for another example of the detail required

to be alleged in order to be entitled to a hearing.

We conclude therefore that the district court did not

abuse its discretion in denying without hearing the defen-

dant’s motion to withdraw his guilty plea and to vacate his

sentence.

iil

In exercise of our supervisory power’ and because of

1 Since we are not issuing a mandamus (Note, Supervisory and

Advisory Mandamus Under the All Wriis Act, 86 Harv. L. Rev.

595 (1973) ), our action is more closely akin to a “Sunburst.” Great

Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S.

358 (1932); Schaefer, The Control of ‘Sunbursts’: Techniques of

Prospective Overruling, 42 N. Y. U. L. Rev. 631 (1967).

App. 28

a substantial number of appeals raising the same issue

of off-the-record plea bargaining, we are taking this

opportunity to attempt to conserve judicial energy in this

circuit. See United States v. Silvern, 484 F.2d 879 (7th

Cir. 1973).

_The negotiated plea of guilty or ‘‘plea bargaining’’

has been a traditional anomaly of the judicial system.

Although a substantial number of guilty pleas, which

in turn account for about 90 percent of all convictions,

have been the product of negotiations between prosecu-

tors and defense counsel, with occasional participation

or knowledge on the part of the trial judge, the whole

process had been largely invisible and carried on with the

pretext that it did not exist?

In 1967, the President’s Commission on Law Enforce-

ment and Administration of Justice recommended’:

If a negotiated agreement to plead guilty is

reached, care should be taken by prosecutor and

defense counsel to state explicitly all its terms.

2 President’s Commission on Law Enforcement and Administra-

tion of Justice, Task Force on Administration of Justice, Task

Force Report: The Courts 9 (1967): “The system usually operates

in an informal, invisible manner. There is ordinarily no formal

recognition that the defendant has been offered an inducement to

plead guilty. Although the participants and frequently the judge

know that negotiation has taken place, the prosecutor and defendant

must ordinarily go through a courtroom ritual in which they deny

that the guilty plea is the result of any threat or promise.” See

also, Justice Erickson, The Finality of a Plea of Guilty, 48 Notre

Dame Lawyer 836, 839-41 (1973).

* THe CHALLENGE or CrIME IN A Free Society 136 (1967).

App. 29

Upon the plea of guilty in open court the terms

of the agreement should be fully statec on the record

and, in serious or complicated cases. reduced to

writing.

In 1968, the American Bar Association Standards for

criminal justice relating to pleas of guilty were approved

by the ABA House of Delegates and contained the fol-

lowing standard as part of Section 1.5*:

* American Bar Association Project on Standards for Criminal

Justice, Standards Relating to Pleas of Guilty 29 (1968).

Section 1.8 at 36-37 provides:

Consideration of plea in final disposition.

(a) It is proper for the court to grant charge and sentence

concessions to defendants who enter a plea of guilty or nolo con-

tendere when the interest of the public in the effective adminis-

tration of criminal justice would thereby be served. Among the

considerations which are appropriate in determining this ques-

tion are:

(i) that the defendant by his plea has aided in ensuring

the prompt and certain application of correctional measures

to him;

(ii) that the defendant has acknowledged his guilt and

shown a willingness to assume responsibility for his con-

duct ;

(iii) that the concessions will make possible alternative

correctional measures which are better adapted to achieving

rehabilitative, protective, deterrent or other purposes of cor-

rectional treatment, or will prevent undue harm to the

defendant from the form of conviction ;

(iv) that the defendant has made public trial unneces-

sary when there are good reasons for not having the case

dealt with in a public trial;

(v) that the defendant has given or offered cooperation

when such cooperation has resulted or may result in the

successful prosecution of other offenders engaged in equal-

ly serious or more serious criminal conduct ;

App. 30

The court should not accept a plea of guilty or

nolo contendere without first determining that the

(footnote continued)

(vi) that the defendant by his plea has aided in avoid-

ing delay (including delay due to crowded dockets) in the

disposition of other cases and thereby has increased the

probability of prompt and certain application of correction-

al measures to other offenders.

(b) The court should not -impose upon a defendant any

sentence in excess of that which would be justified by any of

the rehabilitative, protective, deterrent or other purposes of the

criminal law because the defendant has chosen to require the

prosecution to prove his guilt at trial rather than to enter a plea

of guilty or nolo contendere.

Section 3.3 at 71-72 provides:

Responsibilities of the trial judge.

(a) The trial judge should not participate in plea discus-

sions.

(b) If a tentative plea agreement has been reached which

contemplates entry of a plea of guilty or nolo contendere in the

expectation that other charges before that court will be dismissed

or that sentence concessions will be granted, upon request of the

parties the trial judge may permit the disclosure to him of the

tentative agreement and the reasons therefor in advance of the

time for tender of the plea. He may then indicate to the prose-

cuting attorney and defense counsel whether he will concur in

the proposed disposition if the information in the presentence

report is consistent with the representations made to him. If

the ‘-ial judge concurs but the final disposition does not in-

clude the charge or sentence concessions contemplated in the

plea agreement, he shall state for the record what information in

the presentence report contributed to his decision not to grant

these concessions.

(c) When a plea of guilty or nolo contendere is tendered or

received as a result of a prior plea agreement, the trial judge

should give the agreement due consideration, but notwithstand-

ing its existence he should reach an independent decision on

whether to grant charge or sentence concessions under the

principles set forth in section 1.8.

App. 31

plea is voluntary. By inquiring of the prosecuting

attorney and defense counsel, the court should deter-

mine whether the tendered plea is the result of prior

plea discussions and a plea agreement, and, if it is,

what agreement has been reached.

This standard was supplemented by additional standards

approved in 1972 relating to the function of the trial

judge, which provided in Section 4.1(b)°:

5 American Bar Association Project on Standards for Criminal

Justice, Standards Relating to the Function of the Trial Judge 51-

52 (1972). The entire section 4.1 reads as follows:

Role of the judge in plea discussions and plea agreements.

(a) The trial judge should not be involved with plea dis-

cussions before the parties have reached an agreement other than

to facilitate fulfillment of the obligation of the prosecutor and

defense counsel to explore with each other the possibility of dis-

position without trial.

(b) The trial judge should not accept a plea of guilty or nolo

contendere without first inquiring whether there is a plea agree-

ment and, if there is one, requiring that it be disclosed on the

record.

(c) If the plea agreement contemplates the granting of

charge or sentence concessions by the trial judge, he should:

(i) unless he then and there grants such concessions,

inform the defendant as to the role of the judge with

respect to such agreements, as provided in the following

subparagraphs ;

(ii) give the agreement due consideration, but notwith-

standing its existence reach an independent decision on

whether to grant charge or sentence concessions ; and

(iii) permit withdrawal of the plea (or, if it has not vet

been accepted, withdrawal of the tender of the plea) in any

case in which the judge determines not to grant the charge

or sentence concessions contemplated by the agreement.

(d) The trial judge may decline to give consideration to a

plea agreement until after completion of a presentence investiga-

tion or may, in accordance with ABA Standards, Pleas of

Guilty § 3.3(b), indicate his conditional concurrence prior

thereto.

App. 32

The trial judge should not accept a plea of guilty

or nolo contendere without first inquiring whether

there is a plea agreement and, if there is one, re-

quiring that it be disclosed on the record.

Chief Justice Burger, speaking for a unanimous court

on this point, said in Santobello v. New York, 404 US.

257, 260-61:

. . . The disposition of criminal charges by agree-

ment between the prosecutor and the accused, some-

times loosely called ‘‘plea bargaining,’’ is an essential

component of the administration of justice. Properly

administered, it is to be encouraged. If every criminal

charge were subjected to a full-scale trial, the States

and the Federal Government would need to multiply

by many times the number of judges and court

facilities.

Disposition of charges after plea discussions is

not only an essential part of the process but a highly

desirable part for many reasons. It leads to prompt

and largely final disposition of most criminal cases;

it avoids much of the corrosive impact of enforced

idleness during pretrial confinement for those who are

denied release pending trial; it protects the public

from those accused persons who are prone to continue

criminal conduct even while on pretrial release; and

by shortening the time between charge and disposition,

it enhances whatever may be the rehabilitative pros-

pects of the guilty when they are ultimately im- |

prisoned.

On April 23, 1974, the Supreme Court approved and

transmitted to Congress, to take effect on August 1, 1974

if approved, amendments to the Federal Rules of Criminal

Procedure, including a greatly expanded Rule 11 which

details plea agreement procedure.

App. 33

f Amended Rule 11 includes in paragraphs (e)(2),(e) (5)

and (g) the following:

(e)(2) Notice of such agreement.—If a plea agree-

ment has beén reached by the parties which con-

templates entry of a plea of guilty or nolo contendere

in the expectation that a specific sentence will be

imposed or that other charges before the court will '

be dismissed, the court shall require the disclosure

of the agreement in open court at the time the plea

is offered. —

e e & :

(e)(5) Time of plea agreement procedure.—Except

for good cause shown, notification to the court of

the existence of a plea agreement shall be given

at the arraignment or at ‘such other time, prior to

trial, as may be fixed by the court.

j & 8 *

(g) Record of Proceedings—A verbatim record

of the proceedings at which the defendant enters —

a plea shall be made and, if there is a plea of guilty

or nolo contendere, the record shall include, without

limitation, the court’s advice to the defendant, the

inquiry into the voluntariness of the plea including

any plea agreement, and the inquiry into the accuracy

of a guilty plea.

In order to forestall unnecessary appeals, district judges

in this circuit should immediately expand their Rule 11

inquiry substantially as follows:

I now inquire of the United States Attorney and

of the prisoner and his counsel whether or not there

have been plea negotiations. Before permitting you

to respond, I advise yeu that the United States

Supreme Court has specifically approved plea bar-

gaining and has said it is ‘‘an essential component

of the administration of justice . . . to be encouraged.”’

Wie ADP ANUATAR | PRR da: vas eaten

f /

App. 34

Yen should advise me truthfully and fully of any

plea negotiation without the slightest fear of i incurring

disapproval of the court.®

When and if amended Rule 11 takes effect, the language

can be appropriately modified to indicate that the informa-

, tion sought is expressly required by Rule 11.7

The conviction of defendant Jose Moody is affirmed.

A ¢FIRMED.

® Compare Walters:v. Harris, 460 F.2d 988, 993 (4th Cir. 1972)

with Paradiso v. United States, 482 F.2d 409, 413 (3d Cir. 1973)

and Bryan'v. United States, 492 F.2d 775, 781-782 (5th Cir. 1974).

. ™Due to the exercise of supervisory power in the opinion, we have

circulated it among all judges in regular active service and no judge

has requested that the case be reheard en banc. It should also be

noted that we recognize that many district judges in this circuit

ict follow the suggested practice.

‘

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