Johnny Trotter, Also Known as John Trotter v. United States

Second Circuit

Johnny Trotter, Also Known as John Trotter v. United States

359 F.2d 419, 1966 U.S. App. LEXIS 6405

CourtCourt of Appeals for the Second Circuit

DecidedApril 21, 1966

Docket30056_1

StatusPublished

Cited by28 cases

This text of 359 F.2d 419 (Johnny Trotter, Also Known as John Trotter v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Johnny Trotter, Also Known as John Trotter v. United States, 359 F.2d 419, 1966 U.S. App. LEXIS 6405 (2d Cir. 1966).

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PER CURIAM.

Appellant Trotter brings this consolidated appeal from the denial of two motions to vacate sentence made pursuant to-28 U.S.C. § 2255, on April 5, 1965 and July 30, 1965.

The first appeal, Docket No. 29990, is from an order denying appellant’s motion to vacate a sentence imposed on him, after a plea of guilty, for selling heroin. Appellant claimed that heroin is not a narcotic drug within the meaning of 26 U.S.C. § 4704(a) under which he was convicted.

[420]*420The Internal Revenue Code, 26 U.S.C. § 4731(a) (2) defines a narcotic drug as including:

“Any compound, manufacture, salt, derivative, or preparation of opium, isonipecaine, coca leaves, or opiate.”

Heroin is a derivative of opium, and therefore a narcotic drug within the purview of the relevant statute. See Naval v. United States, 278 F.2d 611, 612 n. 2 (9th Cir. 1960).

Appellant in his second motion, Docket No. 30056, asserted that his guilty plea had been induced and coerced by promises of a suspended sentence made by appellant’s court appointed counsel and an Assistant United States Attorney.

A pre-sentencing colloquy between a trial judge and defendant, of the type “conclusively” relied upon by the district court here, is “evidential on the issue of voluntariness, * * * not conclusive.” United States ex rel. McGrath v. LaVallee, 319 F.2d 308, 314 (2d Cir. 1963); see United States v. Tateo, 214 F.Supp. 560, 564 (S.D.N.Y.1963). The “making of such promises [as alleged here] in bad faith” may be trickery so flagrant as to violate appellant’s constitutional rights. United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 712 (2d Cir. 1960); see Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

We reverse because the district court in rejecting appellant’s petition did not have before it any reply by the government to the allegations of the petition either denying them or dealing with them otherwise. For all that appears from the record as we now have it, the government may be prepared to concede the validity of the petitioner’s position. On remand, the district court, after receiving the government’s reply, will be in a position to determine whether a hearing on appellant’s motion is needed. See, United States ex rel. Rambert v. New York, 358 F.2d 715 (2d Cir. decided April 1, 1966).

The first order is affirmed; the second is reversed and the case remanded for further proceedings not inconsistent with this opinion.

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PER CURIAM.

Appellant Trotter brings this consolidated appeal from the denial of two motions to vacate sentence made pursuant to-28 U.S.C. § 2255, on April 5, 1965 and July 30, 1965.

The first appeal, Docket No. 29990, is from an order denying appellant’s motion to vacate a sentence imposed on him, after a plea of guilty, for selling heroin. Appellant claimed that heroin is not a narcotic drug within the meaning of 26 U.S.C. § 4704(a) under which he was convicted.

[420]*420The Internal Revenue Code, 26 U.S.C. § 4731(a) (2) defines a narcotic drug as including:

“Any compound, manufacture, salt, derivative, or preparation of opium, isonipecaine, coca leaves, or opiate.”

Heroin is a derivative of opium, and therefore a narcotic drug within the purview of the relevant statute. See Naval v. United States, 278 F.2d 611, 612 n. 2 (9th Cir. 1960).

Appellant in his second motion, Docket No. 30056, asserted that his guilty plea had been induced and coerced by promises of a suspended sentence made by appellant’s court appointed counsel and an Assistant United States Attorney.

A pre-sentencing colloquy between a trial judge and defendant, of the type “conclusively” relied upon by the district court here, is “evidential on the issue of voluntariness, * * * not conclusive.” United States ex rel. McGrath v. LaVallee, 319 F.2d 308, 314 (2d Cir. 1963); see United States v. Tateo, 214 F.Supp. 560, 564 (S.D.N.Y.1963). The “making of such promises [as alleged here] in bad faith” may be trickery so flagrant as to violate appellant’s constitutional rights. United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 712 (2d Cir. 1960); see Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

We reverse because the district court in rejecting appellant’s petition did not have before it any reply by the government to the allegations of the petition either denying them or dealing with them otherwise. For all that appears from the record as we now have it, the government may be prepared to concede the validity of the petitioner’s position. On remand, the district court, after receiving the government’s reply, will be in a position to determine whether a hearing on appellant’s motion is needed. See, United States ex rel. Rambert v. New York, 358 F.2d 715 (2d Cir. decided April 1, 1966).

The first order is affirmed; the second is reversed and the case remanded for further proceedings not inconsistent with this opinion.

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359 F.2d 419, 1966 U.S. App. LEXIS 6405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnny-trotter-also-known-as-john-trotter-v-united-states-ca2-1966.

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