United States v. Oscar S. Mann

Second Circuit

United States v. Oscar S. Mann

451 F.2d 346, 28 A.F.T.R.2d (RIA) 5972, 1971 U.S. App. LEXIS 7219

CourtCourt of Appeals for the Second Circuit

DecidedNovember 8, 1971

Docket160, Docket 71-1678

StatusPublished

Cited by23 cases

This text of 451 F.2d 346 (United States v. Oscar S. Mann) 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.

Bluebook

United States v. Oscar S. Mann, 451 F.2d 346, 28 A.F.T.R.2d (RIA) 5972, 1971 U.S. App. LEXIS 7219 (2d Cir. 1971).

Pincite

Opinion

PER CURIAM:

In connection with the entry of appellant’s plea of guilty to Count Two of an indictment filed on February 21, 1963, which charged appellant with knowingly signing and filing a false and fraudulent income tax return supposedly signed by his deceased father, appellant made an attempt to reserve his right, despite the plea of guilty, to appeal from the order, previously made, denying his motion to dismiss the indictment because of the delay in bringing the case on for trial. It is settled law in this Circuit that the point may be preserved for appeal provided the reservation is “accepted by the court with the Government’s consent.” United States v. Doyle, 348 F.2d 715, 719 (2d Cir. 1965). See also United States v. D’Amato, 436 F.2d 52, 53 (3d Cir. 1970).

Here neither the trial judge nor the prosecutor gave any consent whatever. All Judge Cannella said was, “I make no judgment at this time whether there is an appealable motion or whether any relief can be granted.” The prosecutor said nothing. The consents referred to in Judge Friendly’s opinion in Doyle must be clearly stated in writing or on the trial record and not left to equivocal inference. Accordingly, the guilty plea waived the claim of violation of rights under the Sixth Amendment as well as all other non-jurisdictional defects. United States v. Doyle, supra, 348 F.2d 715 (2d Cir. 1965); United States v. Spada, 331 F.2d 995 (2d Cir.), cert. denied, 379 U.S. 865, 85 S.Ct. 130, 13 L. Ed.2d 67 (1964).

The appeal is dismissed for lack of jurisdiction.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

In connection with the entry of appellant’s plea of guilty to Count Two of an indictment filed on February 21, 1963, which charged appellant with knowingly signing and filing a false and fraudulent income tax return supposedly signed by his deceased father, appellant made an attempt to reserve his right, despite the plea of guilty, to appeal from the order, previously made, denying his motion to dismiss the indictment because of the delay in bringing the case on for trial. It is settled law in this Circuit that the point may be preserved for appeal provided the reservation is “accepted by the court with the Government’s consent.” United States v. Doyle, 348 F.2d 715, 719 (2d Cir. 1965). See also United States v. D’Amato, 436 F.2d 52, 53 (3d Cir. 1970).

Here neither the trial judge nor the prosecutor gave any consent whatever. All Judge Cannella said was, “I make no judgment at this time whether there is an appealable motion or whether any relief can be granted.” The prosecutor said nothing. The consents referred to in Judge Friendly’s opinion in Doyle must be clearly stated in writing or on the trial record and not left to equivocal inference. Accordingly, the guilty plea waived the claim of violation of rights under the Sixth Amendment as well as all other non-jurisdictional defects. United States v. Doyle, supra, 348 F.2d 715 (2d Cir. 1965); United States v. Spada, 331 F.2d 995 (2d Cir.), cert. denied, 379 U.S. 865, 85 S.Ct. 130, 13 L. Ed.2d 67 (1964).

The appeal is dismissed for lack of jurisdiction.

Cite This Page — Counsel Stack

Bluebook (online)

451 F.2d 346, 28 A.F.T.R.2d (RIA) 5972, 1971 U.S. App. LEXIS 7219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-oscar-s-mann-ca2-1971.

Opinion

Related

Cite This Page — Counsel Stack