United States v. David D. Johnson

507 F.2d 826
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 18, 1974
Docket73-1509
StatusPublished
Cited by23 cases

This text of 507 F.2d 826 (United States v. David D. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. David D. Johnson, 507 F.2d 826 (7th Cir. 1974).

Opinions

ESCHBACH, District Judge.

Defendant-appellant David D. Johnson pleaded guilty on December 6, 1972, to both counts of a two-count indictment. The indictment charged in Count I that on November 18, 1971, Johnson violated Title 26, U.S.C. § 5861(d), by having in his possession a sawed-off shotgun which was not properly registered. Count II charged Johnson with possession of a different unregistered weapon on January 7, 1972, also in violation of Title 26, U.S.C. § 5861(d). On appeal, the defendant-appellant raises essentially three issues. We affirm.

The first question presented by this appeal is whether the trial judge followed the procedures mandated by Rule 11, Fed.R.Crim.P. when he accepted Johnson’s guilty pleas.1 We are satis[828]*828fied that the procedures set forth in Rule 11 were followed.

I.

Defendant-appellant argues that the district court totally failed to explain the elements of the offense of knowingly and unlawfully possessing an unregistered sawed-off shotgun as set forth in Count I of the indictment. As a result, it is argued that the defendant-appellant did not understand the charge against him and that the district court failed to personally inquire whether the defendant-appellant understood the nature of the charge.

Rule 11 expressly directs the district judge to make a personal inquiry to determine whether a defendant who pleads guilty understands the nature of the charge against him and to determine whether he is aware of the consequences of his plea. McCarthy v. United States, 394 U.S. 459, 464, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Rule 11 also requires that the district judge satisfy himself that there is a factual basis for the plea. The judge must decide that the conduct which the defendant admits constitutes the offense charged in the indictment. McCarthy v. United States, Id. at 467, 89 S.Ct. at 1171. The character of the defendant’s understanding relates to the question of whether the plea was entered voluntarily while the requirement that the court be satisfied that there is a factual basis for the plea entered relates to the question of the guilt or innocence of the defendant. Arias v. United States, 484 F.2d 577, 579 (7th Cir. 1973). In this direct appeal we are concerned with both of these Rule 11 Requirements.

The transcript reflects that a clear and complete explanation of both charges in the indictment was made to the defendant-appellant and that he fully understood the essence of the indictment. In addition, the transcript reveals that the court by personal interrogation of the defendant-appellant did elicit from him a factual basis to support the guilty plea. The court first explained the indictment to the defendant-appellant who indicated that he understood it. The court then determined that the guns in question were not registered. The court next inquired of defendant-appellant whether he was in possession of the guns on the dates in question. The defendant implied that he had been in possession of the one gun charged in Count I but that he did not have actual possession of the gun involved in Count II at the time of his arrest.2 The court interrogated the defendant-appellant further to ascertain whether in fact the defendant did have possession of the gun charged in Count II and determined that he did have possession. The court informed the defendant-appellant of the possible penalties which he faced, informed him that he had a right to a trial, either before the court or to a jury, and asked the defendant-appellant if he understood his rights. The defendant-appellant indicated that his counsel had explained his [829]*829rights to him, that he was pleading guilty because he was in fact guilty, that no promises had been made to him and that he was pleading guilty of his own free will. These explanations, coupled with the presence of competent counsel were sufficient to establish that he did understand the essence of the indictment. See, Arias v. United States, Id. at 579. On at least three occasions, the defendant indicated that he understood the charges and was pleading guilty of his own free will. We are, therefore, satisfied that the plea was voluntarily and understandingly entered and that the court accepted the plea after establishing a factual basis for the defendant-appellant’s guilt.

II.

The second issue presented is whether the district court erred in receiving testimony, after the plea was entered but before sentencing, relating to a crime with which the defendant had been charged in state court and to which he intended to plead not guilty.

After the plea of guilty had been entered and a presentence report had been prepared, a hearing was held for disposition on January 16, 17 and 19, 1973. Before sentencing, the court was informed that the defendant had been charged with an armed robbery that had occurred shortly before defendant-appellant’s arrest on November 18, 1972, for the violation charged in Count I of the federal indictment. The defendant-appellant had been identified in a lineup the next day as a participant in that armed robbery. The court decided that before disposition of the defendant-appellant it would be necessary to learn about the circumstances surrounding the robbery in order to determine the reason why the defendant-appellant had been in possession of the sawed-off shotgun.

It is an accepted principle that a federal trial judge has wide discretion in determining what sentence to impose on a convicted person. “It is also true that before making that determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the sources from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). See also, United States v. Trigg, 392 F.2d 860 (7th Cir. 1968), cert. denied, 391 U.S. 961, 88 S.Ct. 1863, 20 L.Ed.2d 874. It has been held that it is proper for the sentencing judge to consider evidence of other crimes for which appellant was neither tried nor convicted when determining the sentence to impose. See United States v. Cifarelli, 401 F.2d 512, 514 (2nd Cir. 1968), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448; United States v. Doyle, 348 F.2d 715, 721 (2nd Cir. 1965), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84. As Judge Friendly stated for the court in United States v. Doyle, supra at 721:

The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it. Its synopsis should include the unfavorable, as well as the favorable, data, and few things could be so relevant as other criminal activity of the defendant, particularly activity closely related to the crime at hand. (Emphasis added).

Judge Friendly went on to point out that nothing warranted a distinction between considering the persons’ past criminal record or crimes not passed on by a court. Id. at 721.

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United States v. David D. Johnson
507 F.2d 826 (Seventh Circuit, 1974)

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Bluebook (online)
507 F.2d 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-d-johnson-ca7-1974.