United States v. Michael Scott Wells

On February 18, 1969, Wells was indicted on three counts, which charged, Count I, bringing 305 pounds of marihuana across the border in violation of 21 U.S.C. § 176a, Count II, failure to pay the tax on marihuana in violation of 26 U.S.C. § 4744 (a), and Count III, bringing in merchandise (% of a pound of peyote) without unladening it for customs inspection in violation of 18 U.S. C. § 545. Wells pleaded not guilty on all three counts.

*227 On April 21, 1969, Wells requested leave of the court to withdraw his not guilty plea as to Count II and to enter a guilty plea on that count. The court granted his request and received the guilty plea. On June 23, 1969, it sentenced Wells under the provisions of the Federal Youth Correction Act. The United States Attorney then requested that Counts I and III be dismissed and the court dismissed them.

Within 29 days, on July 22,1969, Wells petitioned for withdrawal of his plea of guilty or alternatively for permission to file a petition for delayed appeal. The court denied the motion for leave to withdraw the plea, and extended the time within which Wells could file a notice of appeal. Wells filed his notice of appeal on August 1, 1969. While…

(dissenting) :

I do not share the views of the majority on the non-applicability to this factual background of the principles employed by the Supreme Court in Brady v. United States, Parker v. North Carolina and McMann v. Richardson, each decided May 4, 1970. In my judgment, those cases are very persuasive, if not controlling. Neither Meadows v. United States, 420 F.2d 795 (9th Cir., 1969), nor United States v. Ingman, 426 F.2d 973 (9th Cir., 1970) is authoritative on these facts. See United States v. Weber, 429 F.2d 148 (9th Cir., July, 1970).

Moreover, I believe this record supports a conclusion that appellant was well aware of Leary prior to his sentencing. Beyond question, his acts subsequent to his knowledge of Leary were knowingly and intelligently done, and, I believe, with sufficient awareness of the relevant circumstances and all likely consequences. 1 He took a gambler’s chance on probation and lost. 2 3 The judicial process, by any standard, should not be so exploited. In these circumstances, I would hold that appellant waived such rights as he might otherwise have.

I would affirm.

. “A plea of guilty was entered on April 21, 1969 and sentencing occurred on June 23,…

430 F.2d 225 UNITED STATES of America, Plaintiff-Appellee, v. Michael Scott WELLS, Defendant-Appellant. No. 24957. United States Court of Appeals, Ninth Circuit. July 27, 1970. Michael S. Hegner (argued), of Hecsh, Hegner & Philbin, San Diego, Cal., for appellant. Ann Bowen (argued), Asst. U.S. Atty., Richard K. Burke, U.S. Atty., JoAnn Diamos, Asst. U.S. Atty., Tucson, Ariz., for appellee. Before MADDEN, Judge, United States Court of Claims, * DUNIWAY and KILKENNY, Circuit Judges. DUNIWAY, Circuit Judge: 1 On February 18, 1969, Wells was indicted on three counts, which charged, Count I, bringing 305 pounds of marihuana across the border in violation of 21 U.S.C. 176a, Count II, failure to pay the tax on marihuana in violation of 26 U.S.C. 4744(a), and Count III, bringing in merchandise (3/4 of a pound of peyote) without unladening it for customs inspection in violation of 18 U.S.C. 545. Wells pleaded not guilty on all three counts. 2 On April 21, 1969, Wells requested leave of the court to withdraw his not guilty plea as to Count II and to enter a guilty plea on that count. The court granted his request and received the guilty plea. On June 23, 1969, it sentenced Wells under…