343 F.2d 25

Calvin SNIPE, Appellant, v. UNITED STATES of America, Appellee.

No. 19285.

United States Court of Appeals Ninth Circuit.

March 8, 1965.

*26Donald A. Sawyer, Oakland, Cal., for appellant.

Sylvan A. Jeppesen, U. S. Atty., Robert E. Bakes, Asst. U. S. Atty., Boise, Idaho, for appellee.

Before HAMLIN, MERRILL and ELY, Circuit Judges.

HAMLIN, Circuit Judge.

On June 7, 1962, petitioner, Calvin Snipe, an enrolled Indian, was arrested upon a complaint filed by an agent of the F.B.I. before the United States Commissioner at Pocatello, Idaho, which alleged that the petitioner did commit a forcible rape upon one Karen Mary Broadbent within the confines of Fort Hall Indian Reservation, in violation of 18 U.S.C. § 1153. On June 15, 1962, petitioner was brought before the United States District Court for the District of Idaho, Eastern Division, for arraignment on an information charging petitioner with the offense alleged in said complaint. At the hearing on the arraignment, the district court fully advised petitioner of his right to counsel, his right to have the cause submitted to the grand jury and to proceed by indictment, the nature of the offense of which he was charged, and the range of possible penalties, including death, which could be imposed upon conviction thereof. After being so advised, petitioner voluntarily waived his right to counsel and his right to have the cause submitted to the grand jury and to proceed by indictment, and pleaded guilty as charged. The court then ordered a presentence investigation, continuing the cause for pronouncement of judgment and sentence. Subsequently, the government determined that since the offense charged in the information carried a possible death penalty, the cause must be submitted to the grand jury. Thereafter, the cause was presented tc the grand jury which returned an indictment on July 10, 1962.1 On September 18,1962, petitioner was brought before the district court for arraignment on the indictment.2 At this time the court appointed counsel of petitioner’s own choosing. After the indictment was read to the petitioner, the petitioner, responding to the inquiry of the court, stated that he understood the charge contained in the indictment, and thereafter pleaded not guilty to the charge.3 ****When the case came on for trial *27on December 3, 1962, counsel for the petitioner advised the court that petitioner wished to withdraw his former plea of not guilty. After a thorough inquiry, the court allowed the former plea to be withdrawn and accepted petitioner’s plea of guilty.4 The district court found the petitioner guilty as charged in the indictment and sentenced him to a term of thirty-five years.

On October 25, 1963, petitioner filed the present motion pursuant to 28 U.S.C. § 2255 to vacate and set aside the judgment of the United States District Court for the District of Idaho, Eastern Division. On November 20,1963, the district court entered an order denying petitioner’s motion without a hearing. From this order petitioner appeals, invoking the jurisdiction of this court under 28 U.S.C. § 2255. We affirm.

In his petition for relief, petitioner mainly contends that when he entered his plea of guilty to the charge contained in the indictment, he thought he was pleading guilty to a lesser- offense, totally unrelated to the offense charged in the indictment. This contention is elaborated in petitioner's opening brief where he argues that the district court accepted his plea of guilty without making an appropriate inquiry as required by Rule H of the Federal Rules of Criminal Procedure. The pertinent portion of Rule 11 provides:

“The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining *28that the plea is made voluntarily with the understanding of the nature of the charge.”5

On September 8, 1962, when petitioner was arraigned on the indictment, he-was represented by competent counsel of his own choosing. The transcript of the proceedings at the arraignment discloses that the indictment was read to the petitioner by the clerk of the court; that the court asked petitioner whether he understood the nature of the charges contained therein; that the petitioner responded in the affirmative; that the court then asked petitioner whether the charge had been explained to him; and that the petitioner again responded in the affirmative. At this hearing the petitioner pleaded not guilty to the charge. The case came on for trial on December 3, 1962, at which time the proceedings set out in footnote 4 occurred. The record then discloses that counsel for the government and for the appellant and the appellant himself made statements to the court prior to sentence. In his order denying appellant’s petition the district judge referred to those proceedings and we have set out that portion of his order in the margin.6

Far from indicating that the petitioner had any reason or cause to believe that he was pleading guilty to any crime other than that charged in the indictment, the record does suggest that the petitioner is not telling the truth in this regard. In his petition filed under the present *29motion, petitioner alleges that he thought he was pleading guilty to an assault arising out of a fight which he had with another man in a bar the night preceding the rape alleged in the indictment. However, in his motion for reduction of sentence filed on January 14,1963, petitioner admitted slapping the victim, and alleged that he thought he was pleading guilty to assault of the victim of the rape. Now, in his brief on appeal, petitioner asserts that he advised his counsel that he was guilty of statutory rape, but that he was not guilty of forcible rape. The inconsistencies in petitioner’s numerous accounts are patent and are highly suggestive of falsehood.

The record clearly demonstrates that the district court fully performed its duty under Rule 11 of the Federal Rules of Criminal Procedure, and that the petitioner was well aware of the nature of the charge in the indictment to which he voluntarily pleaded guilty and for which he was sentenced. We have examined all contentions made by appellant in his petition and we find no merit in any of them. We hold, therefore, that the record conclusively shows that the petitioner is entitled to no relief.

Affirmed.

Snipe v. United States
343 F.2d 25

Case Details

Name
Snipe v. United States
Decision Date
Mar 8, 1965
Citations

343 F.2d 25

Jurisdiction
United States

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