# Petition for Writ of Certiorari — Harwood v. United States (No. 74-861) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0623%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 ## Text 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 ne 2 zg 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.