Appeals from the United States District Court for the Eastern District of Wisconsin. No. 77-Cr-28 - Myron L. Gordon, Judge.
Before Fairchild, Chief Judge, and Swygert and Sprecher, Circuit Judges.
After resolving preliminary issues regarding this court's jurisdiction over Appeal No. 77-2158 and our scope of review, the remaining questions are whether defendant has a valid double jeopardy claim; whether defendant was prosecuted under an unconstitutional statute; whether the plea bargaining process is unconstitutional; and whether defendant suffered a manifest injustice by reason of his having received a substantially longer sentence than either of two co-defendants.
Defendant-appellant, Thomas D. Gaertner (defendant or Gaertner), pleaded guilty to four counts of interstate travel to promote a business involving a controlled substance, in violation of 18 U.S.C. §§ 1952(a)(3), 2; and pleaded guilty to six counts of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The statutory maximum punishment Gaertner could have received pursuant to his guilty pleas was fifty years imprisonment with a twelve year special parole term, and $130,000.00 in fines. The district court imposed an aggregate sentence of ten years imprisonment with a special parole term of four years.
Counsel newly appointed in this court has filed a motion for leave to withdraw, accompanied by a no-merit brief in conformity with the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Gaertner has responded, raising points for review and requesting the court to appoint another attorney.
By order entered August 29, 1977, the district court denied defendant's pre-trial motions in their entirety. On October 5, 1977, five days after Gaertner's sentencing, court-appointed counsel sought leave to file a late notice of appeal in order to appeal from the district court's pre-trial rulings, and the tendered notice of appeal was filed at that time by the district court clerk. Unable to find excusable neglect for counsel's late filing, the district court on October 14, 1977, denied leave to file the notice of appeal late. Thereafter, on October 21, 1977, counsel filed a second notice of appeal, again attempting to appeal from the district court's pre-trial rulings, and appealing from the latest order refusing to permit late filing of the first notice of appeal.
The October 5, 1977, notice of appeal provides on its face that the appeal is taken from the district court's pre-trial order entered August 29, 1977. However, since the order sought to be appealed from is interlocutory (with the exception of the double jeopardy ruling, as to which See Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977)), the pre-trial rulings merged into defendant's judgment of conviction and sentence for purposes of determining the date from which the time for filing a notice of appeal began to run. To hold otherwise would contravene the firm congressional policy, embodied in 28 U.S.C. § 1291, against interlocutory or piecemeal appeals.
Defendant was not required to appeal the double jeopardy ruling simply because he may have done so, and Gaertner was within his rights to delay an appeal pending final resolution of the case in the district court. Similarly, the fact that the double jeopardy ruling was immediately appealable did not perforce legitimatize other pre-trial rulings for immediate appeal. Abney v. United States, supra, 431 U.S. at 660, 662-63, 97 S. Ct. 2034.
For all these reasons, we believe the notice of appeal filed on October 5, 1977, which is five days after sentence and judgment of conviction, is within the 10-day time limit prescribed by Rule 4(b) of the Federal Rules of Appellate Procedure for filing notice of appeal, and is, therefore, timely and effective to vest this court with jurisdiction. Because the initial notice of appeal is timely, Gaertner's second appeal (No. 77-2159, which is an appeal from the district court's decision refusing late filing of the notice of appeal) is hereby rendered moot.
Our scope of review is limited both by Gaertner's guilty plea and the record before us.
"The Brady trilogy (Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970)) announced the general rule that a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to the pretrial proceedings." Lefkowitz v. Newsome, 420 U.S. 283, 288, 95 S. Ct. 886, 889, 43 L. Ed. 2d 196 (1975). However, upon review of Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) and Menna v. New York, 423 U.S. 61, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975), it is certain that the preclusive effects of guilty pleas do not apply to constitutional claims which go "to the very power of the State to bring the defendant into court to answer the ...