Frank v. Esposito v. United States of America, United States of America v. Frank v. Esposito

With other persons, appellant was charged in three separate indictments with, (1) unlawful sale of heroin, 21 U.S.C. § 174 , (2) unlawful sale of marihuana, 21 U.S.C. § 176a, and (3) another violation' of § 176a. Initially, he pleaded not guilty to all three indictments. Appellant and his co-defendants were tried and convicted on the heroin charge. After this conviction, appellant and his co-defendants entered pleas of guilty to the marihuana indictments.

Subsequently, appellant filed motions to vacate his sentences charging, (1) on the heroin conviction, that the judge gave an erroneous instruction on the entrapment defense and that neither the judge nor retained counsel advised appellant of his right to appeal, and (2) on the marihuana sentences, he charged that the judge failed to ascertain if the guilty pleas were made voluntarily with understanding of the nature of the charges.

On the heroin conviction, the judge reviewed the record, did not grant a hearing and denied the motion to vacate. He set aside the pleas of guilty and sentences in the marihuana cases because of failure of the trial judge to fully comply with the requirements of Rule 11, F.R.Crim.P. Appellant appeals…