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Milhem v. United States

decided*fn*: November 24, 1987.

RICHARD E. MILHEM, SR., PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE



Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division, Nos. 83 CR 18, 86 C 77 -- William C. Lee, Judge.

Cudahy and Manion, Circuit Judges, and Pell, Senior Circuit Judge.

Author: Pell

PELL, Senior Circuit Judge.

Petitioner Richard Milhem, Sr., appeals from the district court's denial of his petition for relief under 28 U.S.C. § 2255. Milhem pleaded guilty to a bail-jumping charge in 1984, but now argues that he could not have committed the charged offense because he was no longer the subject of a bail bond at the time of the incident that formed the basis for the criminal charge.

FACTS

On October 6, 1983 Richard Milhem, Sr. was indicted in the Northern District of Indiana on a charge of defrauding the United States by passing counterfeit notes in violation of 18 U.S.C. § 371. He pleaded not guilty and was released on posting of 10 % of a $2,000 bond. Among the stated conditions of Milhem's release were that he appear at court proceedings as ordered and that he remain within the confines of the Northern District of Indiana.

On November 28, 1983, Milhem and other co-defendants were ordered to appear at a pretrial conference to be held on December 7. At about that same time the Government received information, through Milhem's mother and his attorney, that Milhem had left the Northern District of Indiana. Based on this information the Government petitioned the district court for issuance of an arrest warrant on November 30. On December 1 the district court ordered the issuance of a warrant for Milhem's arrest and "to redetermine the terms and conditions of any further release . . . . " The district court did not expressly revoke Milhem's bond, nor did it order bail forfeited.

On December 7 Milhem failed to appear at the scheduled pretrial conference. He was indicted that same day for failing to appear at the conference in violation of 18 U.S.C. § 3150 (1976), which at that time*fn1 provided that:

whoever, having been released pursuant to this chapter, willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release and, in addition, shall, (1) if he was released in connection with a charge of felony, . . . be fined not more than $5,000.00 or imprisoned not more than five years, or both . . . .

Milhem was arrested on January 29, 1984 by state authorities. On October 15 of that year he pleaded guilty to the charge of failure to appear and was sentenced to a five-year term. He did not appeal directly from this conviction. The instant petition under 28 U.S.C. § 2255 was filed by Milhem pro se on February 24, 1986. After appointing counsel for Milhem, the district court denied the petition on November 25, 1986. This appeal followed.

ANALYSIS

Milhem's sole contention, both in this court and in the district court, is a simple one. He argues that at the time he failed to appear at the pretrial conference he was not a person then released under the federal bail statutes because the warrant for his arrest that had been issued one week earlier had revoked his bond and rendered him a fugitive.*fn2 While disputing Milhem's interpretation of former § 3150, the Government also contends that we need not reach the merits of Milhem's claim because his guilty plea has deprived him of standing to contest his conviction.

The Government correctly argues that a plea of guilty to an offense constitutes a waiver of any claim of insufficiency of proof on any element of that offense. See United States v. Cerri, 753 F.2d 61, 65 (7th Cir.), cert. denied, 472 U.S. 1017, 87 L. Ed. 2d 614, 105 S. Ct. 3479 (1985). A guilty plea is, in fact, considered as if a "conviction" in itself. Boykin v. Alabama, 395 U.S. 238, 242, 23 L. Ed. 2d 274, 89 S. Ct. 1709 and n.4, (1969). Release status is an element of the offense of bail-jumping, and the Government asserts that Milhem waived his right to challenge the sufficiency of its proof on that point.

We think that the Government is technically correct in its evaluation of the general effect of Milhem's plea (an evaluation that Milhem does not dispute), but we believe that this case presents a situation in which an examination of the merits is warranted nonetheless. That we should reach the merits is suggested by this court's opinion in Cerri, in which the court held that a defendant's plea of guilty to a charge of unlawful sale of firearms waived his right to argue that facts elicited at a evidentiary hearing clearly demonstrated that no sale had been consummated. 753 F.2d at 65. Although the court held that Cerri had waived his right to challenge the sufficiency of the evidence of sale, it went on to consider the merits of his sufficiency claim because the factual basis for the claim appeared to be undisputed; the court was reluctant to find waiver where the result would mean "that Cerri had pleaded guilty to an offense he could not have committed . . . ." Id. In our view the same considerations govern here. The Government's waiver argument characterizes Milhem's claim as a challenge to proof on an element of an offense, but there is no dispute ...


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