United States v. John Craige Terrack

515 F.2d 558, 1975 U.S. App. LEXIS 15124

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 1975
• Docket: 74-1283
• Status: Published

Opinions

OPINION

Before ELY and WALLACE, Circuit Judges, and POWELL,* District Judge.

POWELL, District Judge.

A complaint was filed against the appellant Terraek on April 9, 1971, charging him with the smuggling of narcotics into the United States. On June 4, 1973 Terraek was arrested. An indictment was returned on August 13, 1973 charging Terraek with conspiring to import narcotics into the United States and with the importation of narcotics in violation of 21 U.S.C. § 174. Terraek was arraigned in the District Court on September 17, 1973. His attorney moved to dismiss the indictment on the ground that Terrack’s right to a speedy trial had been violated. That motion, made on October 11, 1973 was denied' by the District Court on October 29, 1973. A superseding information was filed against Terraek on November 13, 1973, charging him with the unlawful distribution of a narcotic not contained in its original stamped package, a violation of 26 U.S.C. § 4704(a). On that same day a stipulation of facts was filed by the prosecution and Terraek through Terrack’s then defense attorney. Solely on the basis of this stipulation, Terraek was found guilty by the district judge.

The first issue raised in this appeal is whether Terraek was denied his right to a speedy trial as a result of government delays in issuing a complaint against him, arresting him, indicting him, or arraigning him. In Northern v. United States, 455 F.2d 427 (9th Cir. 1972), our court recognized that “the filing of a criminal complaint, or indictment where there is no complaint, marks the inception of the speedy trial guarantee of the Sixth Amendment.” Id. at 429. And the Supreme Court has held, in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), that the right to speedy trial attaches once “the putative defendant in some way becomes an ‘accused.’ ” Id. at 313, 92 S.Ct. at 459. Black’s Law Dictionary defines a complaint as “A charge, preferred before a magistrate having jurisdiction, that a person named (or unknown person) has committed a specified offense . .” Similarly, Rule 3 of the Federal Rules of Criminal Procedure describes a complaint as “a written statement of the essential facts constituting the offense charged.” Clearly, once a suspect is “charged” with an offense, he is an “accused” within the meaning of United States v. Marion, supra. But cf. Favors v. Eyman, 466 F.2d 1325 (9th Cir. 1972); United States v. Griffin, 464 F.2d 1352 (9th Cir. 1972). In the present case, however, all pre-indictment delays were primarily caused by Terrack’s successful evasion of capture. Federal officers had obtained an arrest warrant, attempted to locate Terraek, notified local law enforcement agencies in areas where Ter-rack had previously resided, and eventually designated Terraek as a fugitive from justice. Terraek cannot claim a violation of his Sixth Amendment rights by reason of delays of his own making.

Furthermore, the delay between arrest and indictment was the result of an on-going negotiations between Ter-rack and the Government regarding Ter-rack’s possible cooperation in the investigation of other narcotics violators. When those negotiations broke down, the Government swiftly indicted Terraek. Terraek was arraigned on the indictment approximately one month after the indictment was filed, and he has made no showing of prejudice as a result of that delay. Although over two years elapsed between the filing of the complaint and the arraignment, Terrack’s right to a speedy trial has not been violated according to the standards set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The appellant here also contends that the stipulation signed by him and his trial counsel and filed with the court was a de facto guilty plea which required the trial judge to conduct an examination of the defendant pursuant to Rule 11, Federal Rules of Criminal Procedure.¹ The stipulation admitted the facts alleged in the information, followed the statute on which the charge was based and recited facts peculiarly within appellant’s knowledge. No exhibits were filed or testimony taken. A jury had been waived. The trial judge found the defendant guilty after personally questioning him as to his understanding of the consequences of filing the stipulation.² We hold that a Rule 11 examination is inapplicable here and that the examination of the defendant was sufficient.

In United States v. Garcia, 450 F.2d 287 (9th Cir. 1971), this court passed on the question presented here. It held that on the filing of a stipulation amounting to a “defacto guilty plea,” Rule 11 did not require extensive examination of the defendant.

“The second complaint urged is that the Stipulation of Facts constituted a de facto plea of guilty and that the court was required to question the appellant as to his knowledge of the consequences of the filing of the stipulation as though it were a guilty plea, pursuant to Rule 11 Fed.R.Crim.P. The record discloses, however, that the trial court did question appellant carefully as to appellant’s knowledge of the document and consent to its filing before he accepted it in evidence. R.T. 6—7. That record does not support appellant’s contentions.” Id. at 288.

Other jurisdictions have held that the requirements of Rule 11 are applicable only to guilty pleas and not to stipulations. See, United States v. Dorsey, 146 U.S.App.D.C. 28, 449 F.2d 1104, 1107 (1971); United States v. Brown, 138 U.S.App.D.C. 398, 428 F.2d 1100, 1102 (1970). No authority has been cited which holds that Rule 11 is triggered by anything other than a plea of guilty or nolo con-tendere. Here appellant pleaded not guilty and signed and filed his stipulation.

In the Brown case, the trial judge did not personally address the defendant to determine the voluntariness of the waivers involved. United States v. Brown, supra at 1103—1104. Here, the appellant was addressed personally. He signed a simple, straightforward, four-paragraph stipulation. It was signed in nearly identical form on two separate occasions, once on November 13, 1973 (R.T. 18) and again on November 14, 1973 (R.T. 25).

Rule 11 requires the trial judge to personally address the defendant as to his knowledge of the charge and the consequences of his guilty plea before the court will accept the plea. These procedures are intended to establish on the record that the plea of guilty is voluntarily entered by the defendant. See, McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Halliday v. United States, 394 U.S. 831, 832, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). A guilty plea waives important constitutional rights including the right to confront one’s accusers. McCarthy v. United States, supra, 394 U.S. at 466, 89 S.Ct. 1166. Rule 11 procedures are designed to show that the defendant’s waivers are intentional relinquishment or abandonment of known rights. Groves v. Prickett, 420 F.2d 1119, 1125 (9th Cir. 1970); Kates v. Nelson, 435 F.2d 1085, 1088 (9th Cir. 1970). To extend Rule 11 to include stipulations would add formality where none is required.³ See United States v. Escandar, 465 F.2d 438, 440 (5th Cir. 1972).

Affirmed.

1 . “A defendant may plead not guilty, guilty, or with the consent of the court, nolo contendere. The court may refuse 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 court 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.” F.R.Cr.P. Rule 11.

2 . “THE COURT: Very well. Mr. Terrack, you are, of course, entitled to a trial by jury and you are entitled to be confronted with all witnesses against you, to cross-examine those witnesses. And you are entitled to insist that the Government prove their case beyond a reasonable doubt. By signing the stipulation agreeing to it you are virtually stipulating to the facts which indicate your guilt. Do you understand that?

THE DEFENDANT: Yes, sir, I do.

THE COURT: And that for all intents and purposes this is a guilty plea except for the fact that you are doing it in this manner in order to reserve the rights or your position which you asserted on the motion for dismissal?

THE COURT: And with that knowledge you are then waiving those rights and agreeing that this stipulation may be signed?

THE DEFENDANT: Yes, sir, I did.

THE COURT: Very well. The stipulation will be received.” (R.T. 24 — 25)

3 . The dissent would include stipulations within the ambit of Rule 11. This would unduly encumber trials now often shortened by stipulation of evidence and to identify exhibits, to specify the chain of custody, and other important matters. To require a Rule 11 examination on every stipulation containing a vital admission of the defendant would add ritualistic formalities where none are needed nor required. Here, appellant and his trial counsel were following the usual procedure to preserve the right to appeal the speedy trial question. If Rule 11 were to be applied only to stipulations constituting de facto pleas of guilty, when and how is that determination made? Every stipulation of a vital fact is an admission tending to establish guilt. Rule 11 specifically applies to pleas of guilty and nolo con-tendere and not to trials. These are areas with a clear division between them. They are either black or white. To create a gray area where stipulations, as a part of a trial, would be governed by the rules on the acceptance of pleas would further complicate the trial judge’s duties and push him further into the role of an advocate.