Petition for Writ of Certiorari — Harwood v. United States (No. 74-861)

LIBRARY. — |

SUPREME COURT, U. & : JAN 14 1975 |

MICHAEL RODAK, JR., CLE

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER 1974

. 24-861

Ricuarp Lioyp Harwoon, Petitioner

v.

Usrrep States or Amentoa, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

_ THE SIXTH CIRCUIT

Rexw J. Onrims

Attorney of Record

Suite 100 Old Elks Building

142 W. Second Street

313/232-2193

AMERICAN BRIEF AND RECORD COMPANY, FIFTY MARKET AVENUE, N.W.,

GRAND RAPIDS, MICHIGAN 49502 — PHONE 458-5326

INDEX

Page

RIN IN ec Oko 1

II chsibitticas hancicslscanitvsdeteboriiansnannsia Gincoekedeadace.: 2

Questions Presented ..0................ccceccccescecsesscesscseecsee socseees 2

Statutes, Federal Rules Involved .............. 2

PI ME I CG acini scence ssc nnscctnncocenorecceiscsscensensecs 3

Reasons for Granting the Writ ..00..00.00 oe. 4

Appendix A. District Court Opinion .......000000000...... 10

Appendix B. Cireuit Court Opinion 0... 19

Appendix B-2. Order Staying Issuance of Mandate. 21

Appendix C. Rule 11 F.R. Crim. P. 0 22

Appendix D. Rule 32 F.R. Crim. P. 0... 22

Appendix E. 5th Amendment U.S. Constitution ....... 24

CITATIONS

Cases:

Estes v Texas, 381 U.S. 532 (1965) 00. 6

McCarthy v United States, 394 U.S. 459 (1969) ....2, 3, 4, 5, 6

MeNabb v United States, 318 U.S. 332 (1943) ............. 6

In Re Murchison, 349 U.S. 133 a ae 6

Palko v Connecticut, 302 U.S. 319, 325 (1937) ........ 8

United States v Lowe, 482 F.2d 1357 (6th Cir. 1973) ..4, 7, 20

United States v McKinney, 450 F.2d 943 (4th Cir.

a REITER ye ec A NNEC MCS A ey ae 7

United States v Stidham, 459 F.2d 297 (10th Cir.

AP RLITEE REE HY Oa eae A eS ee 7

ii

INDEX (CONT'D)

Page

United States v Warren, 432 F.2d 772 (5th Cir. 1970) 7

United States v Weston, 448 F.2d 626 (9th Cir. 1971) 7,8

‘Verdugo v United States, 402 F.2d 559, 613 (9th Cir.

1968) Cert. den. 402 U.S. 961 (1971) 20... 7,8

Statutes:

28 U.S.C. §1254(1) ....0000.... Lar a Ey tat 2

28 U.S.C. §2256 ........... j 2, 3, 15, 16, 17, 19

Miscellaneous:

Federal Rules of Criminal Procedure:

os ee PR. AAPL TUMS CNS cee A A: 2, 3, 4, 6, 16, 19

SE I Geec ecbecciahnta cistaishccetichical 2, 3, 8, 10, 15, 16, 17, 19

Secondary Sources:

Note, Procedural Due Process at Judicial Sentencing

for a Felony, Harv. L. Rev. 821-825 (1968) .......... 8

IN THE SUPREME COURT OF THE

«aITED STATES

OCTOBER TERM, 1974

___ peeerenntaen

Ric#arp Luoyp Harwoon, Petitioner

Vv.

Unrrep States or America, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

Rene’ J. Ortlieb, Attorney, on behalf of Petitioner, prays

that a writ of Certiorari issue to review the judgments of

the United States Court of Appeals for the Sixth Circuit

entered in the above case on October 22, 1974.

Opinions Below

The opinion of the District Court for the Eastern Dis-

trict of Michigan, is not a reported decision. It is there-

fore appended. Appendix A.

The opinion of the United States Court of Appeals for

the Sixth Circuit, is not a reported decision. It is therefore

appended. Appendix B.

The Sixth Circuit granted Petitioner’s motion to stay

issue of the mandate, by Order dated December 3, 1974 so

that Petitioner could continue on bond, Appendix B-2.

4

Pa

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2

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2

4

JURISDICTION

The judgment of the United States Court of Appeals for

the Sixth Circuit was made and entered on October 22,

1974, and a copy thereof is appended to this Petition in the

Appendix B. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1). The petition was first initiated

to review petitioner’s conviction in Federal Court by guil-

ty plea, pursuant to habeas corpus under 28 U.S.C. $2255.

QUESTIONS PRESENTED

1. Did the Sixth Circuit decide the federal question,

of ‘‘addressing the defendant personally’’, as re-

quired by Rule 11, in conflict with the applicable

decision of this Court, McCarthy, infra?

2. Can a pre-sentence report presented to the sentenc-

ing judge seven months after a plea of guilty, and

never disclosed to the defendant or counsel, satis-

fy the Rule 11 requirement that t+° Court be ‘‘sat-

isfied that there is a factual basis fer the plea’’?

3. Is non-disclosure of the pre-sentence report to the

petitioner a denial of due process?

CONSTITUTIONAL PROVISIONS AND FEDERAL

RULES OF CRIMINAL PROCEDURE INVOLVED

The pertinent rules involved are:

1. Rule 11 reproduced in Appendix (,

2. Rule 32 reproduced in Appendix D.

The Constitutional Provision involved is the 5th Amend-

meut, reproduced in Appendix KF.

The United States Supreme Court Rule involved is Rule

(19)(1)(b) giving supervisory powers over’ the lower

courts, ‘‘or so far sanctioned such a departure by lower

court, as to call for an exercise of this court’s power of

supervision. ’’

te

STATEMENT OF THE CASE

The petitioner is before this Court after having entered

pleas of guilty to three counts of false entry in a bank’s

records. Petitioner’s motions to vacate under 28 U.S.C.

§2255 were denied by the district court and affirmed by the

Sixth Circuit. Petitioner also raised issues on the uncon-

stitutionality of non-disclosure of the pre-sentence report,

which were denied.

Under Rule 11, of the Federal Rules of Criminal Proce-

dure, ‘‘The [district] court may refuse to accept a plea of

guilty, and shall not accept such plea . . . without. first ad-

dressing the defendant personally and determining that

the plea is made voluntarily with understanding of the na-

ture of the charge and the consequences of the plea.’’

In addition under Rule 11, ‘‘The [district] court shall

not enter a judgment upon a plea of guilty unless it is sat-

isfied that there is a factual basis for the plea.’’

Rule 32 of the Federal Rules of Criminal Procedure did

not require a mandatory disclosure to defendant, of pre-

sentence materials relied upon for sentence on October 1,

1973 when defendant was sentenced, and no report was dis-

closed.

The district court, in this case, accepted defendant’s

pleas of guilty under Rule 11, without addressing the de-

fendant personally as required by McCarthy v United

States, 394 U.S. 459, 22 L.Ed 2d 418, 89 S.Ct. 1166 (1969).

Neither did the district Court inquire of defendant for any

factual basis for the pleas. There was no discussion by

anyone as to any factual basis, either at the taking of the

pleas or at the sentencing.

The Court of Appeals affirmed the petitioner’s convie-

tion after consideration of ‘Motions to vacate the pleas.

The Sixth Circuit found from the lower court record that:

‘“‘At the time the plea was received the district court

addressed the defendant personally and made a de-

termination that the plea was voluntarily given with

understanding of the nature of the charge and the con-

Sequences of the plea.’? Appendix B.

SS

4

Petitioner is at a loss to find any basis for such a finding

in the lower court record, which is contained in the dis-

trict court’s opinion (attached in Appendix A), within the

meaning of McCarthy, supra.

As to no factual basis the Sixth Circuit found and held

that:

“‘The [lower] Court did not inquire as to the factual

basis for the plea at that time. However, prior to

passing sentence the Court had received an extensive

pre-sentence report which this court has examined

m camera and this report contained a factual basis for

the plea of guilty.”’ Appendix B.

Petitioner’s main contention as a question for review is

the Sixth Circuit’s holding that:

‘‘Rule 11 only requires that the Court be satisfied

that there is a factual basis for the plea of guilty be-

fore entry of the judgment, not at the time the plea is

received.’’ Appendix B.

The Sixth Cireuit cites no authority for this announce-

ment.

The petitioner contends that the failure of the district

court to disclose the pre-sentence report is a denial of due

process. The courts below reject petitioner’s contention

relying on United States vy. Lowe, 482 F.2d 1357 (6th Cir.

1973).

The Sixth Circuit granted petitioner’s motion to stay

the mandate to perfect this petition, by Order dated Decem-

ber 3, 1974 so that Petitioner can continue on bond pend-

ing disposition in this Court. See Appendix B-2.

REASONS FOR GRANTING THE WRIT

The decision below should be reviewed for several good

reasons, as to each of the three questions presented.

1. The first question presented, on the lower court’s

finding that the ’’district court addressed the defendant

personally’’ on the voluntary nature and the consequences

5

of the plea, defies and flies in the face of this Court’s de-

cision in McCarthy « United States, 394 U.S. 459 (1969).

In the case at bar, the Jower court simply asked the peti-

tioner whether or not he knew what was contained in the 3

counts that he was changing his plea to guilty on. The pe-

titioner answered in the affirmative. There was no diseus-

sion on the code sections alleged or the facts. Sec Appen-

dix A. :

This Court held in McCarthy, supra at pp. 466 and 467

that:

‘‘Moreover, because a guilty plea is an admission of

all the elements of a formal criminal charge, it cannot

be truly voluntary unless the defendant possesses an

understanding of the law in relation to the facts.

‘‘Thus, in addition to directing the judge to inquire

into the defendant’s understanding of the nature of

the charge and the consequences of his plea, Rule 11

also requires the judge to satisfy himself that there

is a factual basis for the plea. The judge must deter-

mine ‘that the conduct which the defendant admits

constitutes the offense charged in the indictment or

information or an offense included therein to which

the defendant has pleaded guilty.’ Requiring this ex-

amination of the relation between the law and the acts

the defendant admits having committed is designed

to ‘protect a defendant who is in the position of plead-

ing voluntarily with an understanding of the charge

but without realizing that his conduct does not actu-

ally fall within the charge.’ ’’ [Internal cites are to

F.R.C.P. 11, Notes of Advisory Committee on Crimi-

nal Rules]

Petitioner submits that such a departure from this

Court’s precedent by the lower court constitutes a decision

on a ‘‘federal question in a way in conflict with applicable

decisions of this court; or has so far departed from the ac-

cepted and usual course of judicial proceedings, or so far

sanctioned such a departure by a lower court, as to call for

an exercise of this court’s power of supervision,’’ within

the meaning of this Court’s Rule 19.

6

Petitioner has proceeded to date under this present ha-

beas corpus petition relying on this Court’s precedent. Due

process requires fundamental fairness. In Re Murchison,

349 U.S. 133 (1955). The fair application of the Criminal

Rules is the obligation of the district courts. McNadb v

United States, 318 U.S. 332 (1943). As this Court held in

Estes v Texas, 381 U.S. 532 (1965), where the probability

of prejudice to the accused is inherent in the circumstances, .

it is uot necessary to find indentifiable prejudice in order

to conclude that due process is wanting.

2. The second question presented, demonstrates more

reasons why this Court should grant review. The Sixth

Circuit held below, without recitation of authority, that a

pre-sentence report presented to the sentencing judge seven

months after the court accepted th defendant’s pleas of

guilty, substitutes for the Rule 11 requirement that the

court be satisfied that there is a factual basis for the plea

betore entering judgment.

In the decision below the appeals court held that there is

a sufficient distinction between the ‘fentry of judgment’’

and the ‘‘time that the plea is received.’? Appendix B.

This Court held in McCarthy, supra, at 470, that:

‘‘There is no adequate substitate for demonstrating

in the record at the time the plea is entered the de.

fendant’s understanding of the nature of the charge

against him.’’

The Court in McCarthy, supra, diseusses in great de-

tail the design and contemplation ot Rule 11 to require

the district court to make a complete record to assure good

pleas as well as provide a complete record for direct and

collateral attack. It is illogieal to think that the factual

hasis is a disjunctive requirement of Rule 11, satisfied

simply by a judge sifting through a pre-sentence report

seven months after the plea was accepted. A report that

neither the defendant nor his counsel ever read.

The McCarthy Court did not decide the issue of “fiact-

ual basis for the plea’’, stating that reversal on the issue

of free and voluntary inquiry negated any need to con-

sider the issue in the case, supra, at page 464, footnote No.

7

9. Petitioner contends that this issue should he decided

by this Court in the case at bar.

These questions should be reviewed by this Court in

light of the fact that most Federal criminal defendants

plead guilty.

“During 1968 approximately 86% (22,055 out of 25.-

674) of all convictions obtained in the United States

district couric were pursuant to a plea of guilty or

its substantial equivalent, a plea of nolo contendere.

1968 Director of Administrative Office of the United

States Courts Annual Report 261.’ McCarthy, at

p. 464 footnote 7.

3. The third question presented for review raises ad-

ditional reasons why this petition should be granted. Pe-

titioner submits that failure to disclose the pre-sentence

report in this case is a denial of due process.

The law in the Sixth Cirenit is that there is no require-

ment that pre-sentence reports be disclosed to defendants

or their counsel. United States vy Lowe. 482 F.2d 1957

(6th Cir. 1973),

In the Tenth Cirenit there is no obligation for diselo-

sure of pre-sentence reports. United States v Stidhain.

459 F.2d 297 (10th Cir. 1972). Likewise in the Fourth

Cirenit. United States v McKinney, 450 F.2d 943 (4th

Cir, 1971). Likewise, in the Fifth Cirenit. United States

v Warren, 432 F.2d 772 (5th Cir. 1970).

The Rule appears to be full disclosure in the Ninth Cir-

cuit. Coneurring opinion of Judge Browning, Verdugo v

United States, 402 F.2d 599, 613 (9th Cir. 1968), Cert. de-

nied 402 U.S. 961 (1971). See also United States v Wes-

ton, 448 F.2d 626 (9th Cir. 1971).

Petitioner submits that the variation of practice on this

issue is an important federal question that should be de-

eided by this Court.

Tn addition petitioner submits that this question should

he reviewed to ascertain whether or not non-disclosure of

pre-sentence reports is in violation of due process.

During the pendency of a defendant's contacts with the

sanctions of the criminal law, sentencing is by defiiiition

of primary importance to defendant’s freedom. When a

8

defendant stands subject to lose, at the very least, some

form of freedom, the ultimate of humane treatment and

due process are in order. Sentence must be imposed in a

manner that will best protect society through effectively

balancing its goals of criminal sanctions, i.e., deterrence,

incapacitation and reformation, and its cherished princi-

ples of justice and fair play, while at the same time seck-

ing to correct and rehabilitate offenders so that upon their

return to full members of society they will be functioning

productive members of society. See Note, Procedural Due

Process at Judicial Sentencing for a Felony, 81 Harv. L.

Rev. 821-825 (1968).

This crucial and critical step in the administration of

our criminal just.ce system is subject to all of the proce-

dural safeguards of due process. Any sentencing which

lacks adherence to the Constitution’s fundamental scheme

of ordered liberty is contrary to due process. Palko y

Connecticut, 302 U.S. 319, 325 (1937), Verdugo v United

States, supra.

The Ninth Cireuit in United States v Weston. supra,

said:

‘*A rational penal system must have some concern

for the probable accuracy of the informational inputs

in the sentencing process.”’

If the defendani’s right to speak prior to sentence

under Rule 32 (a)(1) of the Federal Rules of Criminal

Procedure, is to have meaning, the defendant must know

the factual questions before the judge, if the right is to

be more than a hollow shell of ‘‘speak now or forever hold

vour peace.’’

CONCI.USION

For the reasuns discussed above petitioner prays this

Honorable Court to review his conviction in this cause.

It is respectfully submitted that this petition for a writ of

Certiorari should be granted.

Rene’ J. Ortlieb, Attorney of Record

Suite 100 Old Elks Building

142 W. Second Street

Flint, Michigan 48502

313/232-2193

Barry L. Moon, of Counsel

1023 Church Street

P.O. Box 3008

Flint, Michigan 48502

313 /234-3693

James B. VeuCasovic, of Counsel

777 Pontiae Place

140 South Saginaw Street

Pontiac, Michigan 48058

313/338-6458

| atin SOF RIL OM PE TERE, RES

-

10

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Usrrep States or AMERICA,

Plaintiff, Respondent, Criminal No. 5613

vs. Civil No. 74-10032

Ricuarp Lioyp Harwoop,

Defendant, Petitioner.

ORDER DENYING MOTION FOR WITHDRAWAL OF

PLEA OF GUILTY PURSUANT TO RULE 32 OF THE

FEDERAL RULES OF CRIMINAL PROCEDURE AND

OF MOTION TO SET ASIDE PLEA OF GUILTY PUR.

SUANT TO SECTION 2255. TITLE 18 U.S.C.

Under date of February 5, 1973 the within defendant Har-

wood, in the presence of his retained counsel, entered a

plea of guilty to Count One, Count Three and Count Five

of a 36-count Indictment; Count One charging the said

defendant with a violation of Section 1005, Title 18 U.S.C.,

Count Three charging a violation of the same section, and

Count Five charging a violation of the same section; all

three of the counts charging the defendant with a false en-

try in the books and records of the Peoples State Bank

of East Tawas, East Tawas, Michigan, at a time when the

defendant was President of the said bank. The entire

thirty-six counts involve allegations charging the defend-

unt Harwood, as President of the said bank, with irregu-

larities in the operation of the said bank during the period

of time covered by the said separate counts.

The transcript of the proceedings involving the forego-

ing plea of guilty is as follows:

11

Detroit, Michigan

Monday, February 5, 1973

11:00 a.m.

CLERK OF THE COURT: 5613, United States

v. Richard L. Harwood.

MR. HAUSNER: Good morning, your Honor.

We are here this morning for the purpose of a

change of plea, partial change of plea. I have been

informed by Mr. Woods, who is here with his client,

Mr. Harwood, that at this time his client wishes to

withdraw his plea of Not Guilty entered by the Court

on January 8 as to Counts 1, 3 and 5 of the Indict-

ment.

Should the Court see fit to accept the plea of Guil-

ty as to those three counts, the Government would

move that Counts 2, 4 and 6 through 36 be held in

abeyance.

THE COURT: Is that plea agreeable to the Gov-

ernment?

MR. HAUSNER: Yes, it is, your Honor.

THE COURT: All right, Mr. Woods.

MR. WOODS: I have discussed this matter in

depth and at length on several occasions with Mr.

Harwood, your Honor. He has been advised that he

could be tried either by the Court or J ury in this mat-

ter. He knows that each one of the three counts car-

ries a maximum of $5,000 fine and/or five years im-

prisonment.

He also understands that the plea must be volun-

tarily made on his part and only for the reason that he

is, in fact, guilty of those three counts.

He understands that no threats, promises or induce-

ments have been made to him, and he is here this

morning, your Honor, for the purpose of offering a

plea of Guilty to Count 1, Count 3 and Count 5.

I might say for the purpose of the record that this

is a Northern Division case before your Honor.

THE COURT: All right, Mr. Harwood, you have

heard your attorney, Mr. Woods, advise the Court that

you desire to withdraw your plea of Not Guilty to

:

Sie ideas iad

aS

RO bte

12

Counts 1, 3 and 5 and enter pleas of Guilty to each one

of those three counts, is that correct?

DEFENDANT HARWOOD: Yes, sir, I am.

THE COURT: And have you discussed this matter

with your counsel, Mr. Woods?

DEFENDANT HARWOOD: Yes, sir.

THE COURT: And as indicated by his statement

to the Court, has he advised you as to your rights?

DEFENDANT HAP WOOD: Yes, completely, sir.

THE COURT: And are you truly conscious of

what your rights are in this matter?

DEFENDANT HARWOOD: Yes, sir.

THE COURT: You know what you are entitled

to have?

DEFENDANT HARWOOD: Yes, sir.

THE COURT: He has so advised you, is that it?

DEFENDANT HARWOOD: Yes, sir.

THE COURT: And is there anything about it that

you don’t understand in the proceeding?

DEFENDANT HARWOOD: No, sir.

THE COURT: I see, and have you been furnished

at one time with a copy of the Indictment?

DEFENDANT HARWOOD: Yes, your Honor, I

have.

THE COURT: And are you familiar with the

charges that are contained in Counts 1, 3 and 5?

DEFENDANT HARWOOD: Yes, sir, I am.

THE COURT: And how do you plead as to Count

I?

DEFENDANT HARWOOD: Guilty, sir.

THE COURT: And how do you plead as to Count

3?

DEFENDANT HARWOOD: Guilty.

THE COURT: And how do you plead as to Count

5?

DEFENDANT HARWOOD: Guilty.

THE COURT: And in relation to each one of those

pleas of Guilty, you know what you are charged with

in the counts, is that correct?

DEFENDANT HARWOOD: Yes, sir.

13

THE COURT: And you have discussed the matter

with your attorney? .

DEFENDANT HARWOOD: Yes, sir, your Honor,

I have.

THE COURT: And are you pleading Guilty to

Counts 1, 3 and 5 because you are guilty of the charges

contained in those three counts?

DEFENDANT HARWOOD: Yes, your Honor, I

am.

THE COURT: In talking about your plea of Guil-

ty te all three counts, has anyone promised you any-

thing in return for your plea of Guilty to those counts?

DEFENDANT HARWOOD: No, your Honor.

THE COURT: And has anyone threatened you in

any way to have you plead Guilty to any one of those

three counts or all three counts?

DEFENDANT HARWOOD: No, si».

THE COURT: And you offer that plea realizing

the full consequence of your plea, you may be re-

quired to serve a term of imprisonment of five years

on each one of the three counts or any part of fivé

vears?

DEFENDANT HARWOOD: Yes, sir.

THE COURT: And/or pay a fine of $5,000 or any

part of $5,000 as to each one of those three counts?

DEFENDANT HARWOOD: Yes, sir.

THE COURT: And knowing of those conse-

quences, do you still plead Guilty?

DEFENDANT HARWOOD: Yes, sir, I do.

THE COURT: All right, the plea will be accepted

and the matter will be referred to the Probation De-

partment, and the remaining counts in the Indictment

will be taken under advisement for disposition at the

time the matter is determined, and the matter will

be investigated by the Probation Officer in Bay City.

MR. HAUSNER: Thank you, your Honor, and we

ask that the $25,000 personal bond be continued.

THE COURT: The bond will he continued.

MR. WOODS: Thank you.

THE COURT: The Probation Officer at Bay City

will contact you sometime in the near future.

pres iatn eet n

14

MR. WOODS: I have talked to Mr. Adams this

morning, your Honor, relative to this. He will check

in there, I will take him there at this point and Mr.

Adams will take over from there.

THE COURT: All right, Mr. Woods.

MR. WOODS: Thank you.

MR. HAUSNER: Thank you, your Honor.

THE COURT: We'll take a recess.

Under date of September 7, 1973, George E. Woods,

counse! for Harwood, directed a letter to Robert B. Smith,

the United States Probation Officer who had prepared the

pre-senteuce report for the Court, and a copy of the said

letter was directed to the Court, wherein Mr. Woods re-

quested the Probation Department to interview certain

persons tu ascertain the extent of cooperation that was

alleged to have been furnished by Harwood to the Federal

Bureau of Investigation and to the attorney for the bond-

ing company that covered the said bank and, accordingly,

the Court joined in this request and was furnished with a

supplemental Probation Department report, subsequent to

which the matter was set for sentence on October 1, 1973,

at which time the transcript of the said sentencing proce-

dure reflects the following:

THE CLERK: Case No. 5613. United States y.

Richard L. Harwood.

THE COURT: Mr. Harwood, do you have any-

thing to say before I impose sentence on vou?

DEFENDANT HARWOOD: No, sir.

THE COURT: Mr. Woods, do you have anything

to say?

MR. WOODS: Just very briefly, your Honor, We

have been given all the opportunity possible to coop-

erate with the Government, with the probation office.

Mr. Harwood has done so fully, completely and en-

tirely to the best of my knowledge. T am sure he feels

like a very old 47 year old man today and with the

six children he has, My personal reference with him

is he is remorseful and has come a long way from the

initial stages of this proceeding when he harbored

some initial passing thoughts of his own self-destrue-

15

tion for all of this wrong-doing and aggravation that

has been caused but he is here today, he is prepared

to, as he was earlier on the day of his plea, to put hiim-

self on the merey of this Court and whatever your

Honor’s judgment is in his regard he is man enough

here to take it.

Nothing further.

THE COURT: As yon know the matter has been

delayed for some time. The Court had the henefit of

a supplemental probation report in relation to the co-

operation and the Court has taken that into considera-

tion.

The sentence of the Court is you are confined to the

custody of the Attorney General of the United States

for a term oi imprisonment of five years under the

provisions of Section 4208(a)2, Title 18. Your attor-

ney, Mr. Woods, will explain that to you.

On October 29, 1973 Harwood, through his counsel Mr.

Barry L. Moon of Flint, Michigan, filed a Motion for With-

drawal of Plea of Guilty Rule 32 of the Federal Rules of

Criminal Procedure. Said motion reads as follows:

Now comes Defendant Richard Lloyd Harwood,

through his attorney Barry L. Moon and moves this

Honorable Court to allow withdrawal of his plea of

guilty in the instant matter on the basis of manifest

injustice worked upon Defendant.

1. Because of the violation of his rights on all prem-

ises in partial and as shown more fully by affidavit of

Defendant which will be provided for the Court at a

hearing on this Motion. A copy of which will be pro-

vided to the U.S. Attorney with service of this Mo-

tion.

2. Because as a matter of law the spirit of Rule 32 is

that due process must be provided in the pre-sentence

process and that such due process was not followed or

made available in this case. See Defendant’s memo-

randum in support of this Motion and the Companion

28 U.S. §2255 Motion.

Peete) weaert. SOMES CE IB! BYR one «

Pte hr SS

16

3. Because Defendant’s plea in light of Rule 11 of

the Federal Rules of Criminal Procedure, shoud be

re-examined because of pressure exerted on Defend-

ant by an officer of Defendant’s former employer,

Peoples State Bank of Tawas, Michigan, in that it was

threatened that a member of his family would lose his

job at said bank if Defendant did not give statements

and relent in all proceedings, and that such acts would

be rewarded with $500,000 to Defendant if Defend-

ant’s cooperation was successful as contemplated by

that bank officer.

4. And that if such relention was not forthcoming,

Defendant was threatened by said officer referred to

in 3, that he, Defendant, would be ground into the fi-

nancial dust.

On the same date the defendant, through his counsel,

filed the Motion to Set Aside Plea of Guilty in Criminal

File No. 5613 Under 28 U.S.C. §2255, and the allegations in

this motion are identical to the allegations in his motion to

set aside the plea under Rule 32.

Rule 32(d) of the Federal Rules of Criminal Procedure

reads as follows:

Withdrawal of Plea of Guilty. A motion to withdraw

a plea of guilty or of nolo contendere may be made

only before sentence is imposed or imposition of sen-

tence is suspended; but to correct manifest injustice

the court after sentence may set aside the judgment

of conviction and permit the defendant to withdraw

his plea.

On November 16, 1973 an evidentiary hearing was had,

at which witnesses appeared for the petitioner end for the

Government, and extensive testimony was taken in rela-

tion to the allegations contained in the motions. From the

said testimony the Court drew the conclusion that the issue

for determination was the mental status of the defendant

at the time he entered his plea of guilty to the three counts

set forth in the Indictment.

17

At the conclusion of this hearing the Court stated, in

part, as follows:

THE COURT: I have to write a memorandum on

it, so insofar as the matter itself is concerned I think

I have expressed my feelings on it. I feel there is a

total lack of support, evidentiary support to the alle-

gations of the motion, the grounds for the motion. I

will support that with a written memorandum. [First

Tr., p. 162]

On November 21, 1973 Harwood, through his counsel,

filed a pleading in both cases entitled “Petition to Reopen

and Continue 28 U.S.C. 2255, and Federal Rules of Crimi-

nal Procedure 32(d) Hearing,’’ wherein it is alleged, in

part, as follows:

1. Petitioner, Defendant wishes to have his former

counsel Tyrone Gillespie, Attorney at Law, testify as

to matters relevant and believed to be critical to the

substance of his motions at bar.

(a) Petitioner, Defendant tried to have Ty-

rone Gillespie present on November 16, 1973

but Mr. Gillespie was unable and unreach-

able at the time he was sought.

(b) Petitioner, Defendant believes Tyrone Gil-

lespie to have knowledge critical to his case.

2. In addition Petitioner, Defendant would like to

take the testimony of Leopold P. Borrello, Attorney

at Law and any persons in his employ, because Peti-

tioner, Defendant believes that person and staff mem-

ber to possess testimonial and documentary evidence

that can be considered by this Court as it pertains to

Defendants Motions at bar.

3. In addition Petitioner, Defendant wishes to make

available for this Court’s consideration the testimony

of other persons that Petitioner, Defendant believes

will corroborate testimony and which may elaborate

upon testimony that he believes Mr. Gillespie and Mr.

Borrello will give.

oe

|

—

aah ae Nad PRS OS DRT

-

Soe Poke

18

As a result of this petition for reopening, the hearing

was continued on November 28, 1973, at which time Har-

wood produced the testimony of six witnesses, which in-

cluded Mr. Tyrone Gillespie who was counsel for Har-

wood in the criminal matters that grew out of the bank

transactions prior to the time that Harwood entered his

plea of guilty. As part of his testimony Mr. Gillespie tes-

tified that he had numerous conferences with Assistant

United States Attorney James Russell in an effort to ne-

gotiate a plea, subsequent to which he, Gillespie, recom-

mended to Harwood that he enter a plea to three counts in

the Indictment. (Transcript of the hearing of November

28, 1973, at page 25) The substance of the matters pre-

sented to the Court at both hearings in support of the de-

fendant’s motions involve numerous incidents that are al-

leged to have happened previous to the time that Harwood

entered his plea of guilty to the three counts upon the ree-

ommendation of Mr. Gillespie, one of his attorneys. As

reflected by the foregoing transcripts of the entry of the

pleas of guilty and of the sentence of Harwood, he was in-

vited by the Court to make known any matters that might

have affected his ability to enter free and voluntary pleas

to the three counts; his failure to inform the Court of any

of the matters that he is now relying upon in support of his

motions permits the conclusion that he is dissatisfied with

the sentence meted out by the Court.

The contention by counsel for the defendant ‘‘that such

due process was not followed or made available in this

case’’ is without merit. Tollett v Henderson, 411 U.S. 258,

267 is authority for the following:

We thus reaffirm the principle recognized in the

Brady trilogy: a guilty plea represents a break in the

chain of events which has preceded it in the crimiual

process. When a criminal defendant has solemnly ad-

mitted in open court that he is in fact guilty of the

offense with which he is charged, he may not there-

after raise independent claims relating to the depri-

vation 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

19

by showing that the advice he received from counsel

was not within the standards set forth in McMann.

The motion to withdraw the pleas of guilty pursuant to

Rule 32 of the Federal Rules of Criminal Procedure is de-

nied, and the motion to set aside pleas of guilty pursuant

to 28 U.S.C. §2255 is denied.

(s) Thomas ?. Thornton

United States District Judge

Dated: Dec. 17, 1973.

APPENDIX B

- NO. 74-1301

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Ricnarp Lioyp Harwoop,

Petitioner-Appellant,

V.

Unitrep States or AMERICA,

Respondent-A ppellee.

ORDER

(Filed October 22, 1974)

BEFORE: MeCREEF, LIVELY and ENGEL, Circuit

Judges.

In this appeal from denial of a motion to withdraw a

guilty plea, it is contended that the district court failed to

comply with requirements of Rule 11 of the Federal Rules

20

of Criminal Procedure in that there was no factual basis

for accepting the plea of guilty. At the time the plea was

received the district court addressed the defendant per-

sonally and made a determination that the plea was volun-

tarily given with understanding of the nature of the charge

and the consequence of the plea. The court did not inquire

as to the factual basis for the plea at that time. However,

prior to passing sentence the court had received an exten-

sive pre-sentence report which this court has examined

im camera and this report contained a factual basis for the

plea of guilty. Rule 11 only requires that the court be

satisfied that there is a factual basis for the plea of guilty’

before the entry of judgment, not at the time that the plea

is received.

It is also contended that the district court deprived the

defendant of a full evidentiary hearing on his motion to

withdraw the guilty plea in that the court limited the proof

at the hearing. We are of the opinion that the court acted

within its sound diseretion in determining what evidence

to hear and that it did receive sufficient evidence to make a

determination as to the voluntariness of the plea.

The defendant also contends that he was entitled to ex-

amine the pre-sentence report. Taking note of the argu-

ments made in his brief and before the court, we conclude

that the issue is foreclosed by the opinion of this court in

United States v Lowe, 482 F.2d 1357 (1973).

Wherefore it is ORDERED that the judgment of the

district court be and it hereby is affirmed.

ENTERED BY ORDER OF THE COURT

John P. Hehman

Clerk

21

APPENDIX B2

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 74-1301

Ricuarp Lioyp Harwoop,

Petitioner-A ppellant,

Vv.

Unirep Stares or AMERICA,

Respondent-A ppellee.

ORDER STAYING MANDATE

(Filed December 3, 1974)

ORDERED, That motion to stay mandate herein pend-

ing application to the Supreme Court for writ of certiorari

is hereby granted and the mandate is stayed for thirty

days from this date; provided that, if within such thirty

days, the applicant shall file with the Clerk of this Court

the certificate of the Clerk of the Supreme Court that the

certiorari petition, record, and brief have been filed, the

stay shall continue until the final disposition of the case

by the Supreme Court. Unless this condition is complied

with within such thirty days or any extension thereof made

by the Court or any judge thereof, or if the condition is

complied with, then upon the filing of copy of an order

denying the writ applied for, the mandate shall issue.

ENTERED BY ORDER OF THE COURT.

(s) John P. Hehman

Clerk

22

APPENDIX C€

RULE 11 — FEDERAL RULES OF CRIMINAL

PROCEDURE

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 defendant

refuses to plead or if the eourt refuses to accept a plea of

guilty or if a defendant corporation fails to appear, 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.

APPENDIX D

RULE 32 — FEDERAL RULES OF CRIMINAL

PROCEDURE

(a) SENTENCE.

(1) Imposition of Sentence. Sentence shall be im-

posed without unreasonable delay. Pending sentence

the court may commit the defendant or continue or

alter the bail. Before imposing sentence the court

shall afford counsel an opportunity to speak on behalf

of the defendant and shall address the defendant per-

sonally and ask him if he wishes to make a statement

in his own behalf and to present any information in

mitigation of punishment.

(2) Notification of Right To Appeal. After impos-

ing sentence in a case which has gone to trial on a plea

of not guilty, the court shall advise the defendant of

his right to appeal and of the right of a person who is

unable to pay the cost of an appeal to apply for leave

(b)

(c)

23

to appeal in forma pauperis. If the defendant so re-

quests, the clerk of the court shall prepare and file

forthwith a notice of appeal on behalf of the defend-

ant.

JUDGMENT.

(1) In general. A judgment of conviction shall set

forth the plea, the verdict or findings, and the adjudi-

cation and sentence. If the defendant is found not

guilty or for any other reason is entitled to be dis-

charged, judgment shall be entered accordingly. The

judgment shall be signed by the judge and entered

by the clerk.

(2) Criminal forfeiture. Whey a verdict contains

a finding of property subject to a criminal forfeiture,

the judgment of criminal forfeiture shall authorize

the Attorney General to seize the interest or property

subject to forfeiture, fixing such terms and conditions

as the court shall deem proper.

PRESENTENCE INVESTIGATION.

(1) When Made. The probation service of the

court shall make a presentence investigation and re-

port to the court before the imposition of sentence or

the granting of probation unless the court otherwise

directs. The report shall not be submitted to the court

or its contents disclosed to anyone unless the defend-

ant has pleaded guilty or has heen found guilty.

(2) Report. The report of the presentence invyes-

tigation shall contain any prior criminal record of the

defendant and such information about his character-

istics, his financial condition and the circumstances

affecting his behavior as may be helpful in imposing

sentence or in granting probation or in the corree.

tional treatment of the defendant, and such other in-

formation as may be required by the court. The court

before imposing sentence may disclose to the defend-

ant or his counsel all or part of the material contained

in the report of the presentence investigation and af-

24

ford an opportunity to the defendant or his counsel to

comment thereon. Any material disclosed to the de-

fendant or his counsel shall also be disclosed to the

attorney for the government.

(d) WurHprawaL oF PLEA or Gvuitty. <A motion to

withdraw a plea of guilty or nolo contendere may be made

only before sentence is imposed or imposition of sentence

is suspended; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction

and permit the defendant to withdraw his plea.

(e) Prosarion. After conviction of an offense not pun-

ishable by death or by life imprisonment, the defendant

may be placed on probation as provided by law.

(f) Revocation or Propation. The court shall not re-

voke probation except after a hearing at which the de-

fendant shall be present and apprised of the grounds on

which such action is proposed. The defendant may be ad-

mitted to bail pending such hearing.

APPENDIX E

U. $. CONSTITUTIONAL AMENDMENT [V.]

Capital crimes; double jeopardy; self-incrimination; due

process; just compensation for property

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just com-

pensation.

eee PLE ARIAS AE BM TIT ORRIN

Bae SR AStoriur:

es

I PAR OMIT TTWN MAORI. Te SRST RCAC LN