Waterman, Friendly and Smith, Circuit Judges.
On July 2, 1962, a grand jury in the District Court for Connecticut filed an eleven-count indictment against appellant Doyle and three other defendants, Sherwood, Berman, and Korn, charging violations of the Securities Act of 1933 in connection with the offer and sale of stock of Canadian Javelin, Ltd. Counts 1, 2 (dismissed on the Government's motion independently of the proceedings later recounted), 6, 7, 8, 9 and 10 alleged use of the mails in the fraudulent or manipulated advertising or sale of securities in violation of 15 U.S.C. § 77q at various dates between July and late September, 1957. Counts 3, 4 and 5 charged use of the mails to sell unregistered shares of Canadian Javelin on July 10, 23, and 31, 1957, in violation of 15 U.S.C. § 77e(a). Count 11 charged a conspiracy to defraud the United States by impeding the SEC in protecting investors and to violate 15 U.S.C. §§ 77e(a) and 77q. The conspiracy was alleged to have begun prior to January 1, 1955 and to have continued until about July 1, 1958; the overt acts were those forming the basis for the ten substantive counts plus ten others, the last on September 27, 1957.
On the Government's request the indictment was immediately ordered to be impounded. Although the reason was not of record, there is no dispute that it was because Sherwood and Berman were outside the United States and the Government feared that disclosure would prevent a return which otherwise might shortly occur. The Government states its initial intention was to continue the impounding only for a few months. However, in late August, 1962, a Washington attorney, now deceased, called at the Department of Justice and presented papers purporting to show that the SEC had entered into an agreement with a New York lawyer, also representing Doyle, "which was inconsistent with any prosecution of defendant Doyle in connection with the distribution or sale of the stock of Canadian Javelin, Ltd., prior to July 1, 1958." The Department began a detailed inquiry into this alleged agreement, which lasted for many months.
The indictment remained impounded, the reason for the continuation of this beyond early September, 1962, being, according to the Department, the necessity of resolving the issue of the alleged commitment by the SEC which Doyle had raised. About April 16, 1963, the Department made a determination to proceed with the prosecution, and on April 22, on motion of the Government, Judge Anderson ordered that the indictment be released on April 24. The Department having courteously informed a second New York lawyer representing Doyle that a decision had been made to go forward, he and the two previously mentioned made telephone calls to the Department which, as said in the affidavit of the Chief of the Fraud Section, "initiated a chain of events leading to the Government's request" that the indictment remain impounded, as it did until August 6, 1963. Appellant concedes that "from April 23, 1963 to August 6, 1963, when the indictment was unsealed, the delay in unsealing was at the request of Mr. Doyle or his attorneys." Although the Government does not allege a similar express request prior to April 23, 1963, it claims, quite reasonably, to have thought that release of the indictment would have been at odds with the investigation it was conducting at Doyle's instance, and the second New York attorney conceded, in an affidavit to the district court, "in candor I must also say that by presenting the Department with evidence of a commitment I hoped they would hold up whatever it was they were doing, that is, if they were still considering prosecution that they give up the idea or if there was an indictment, that it be dismissed."
After making various motions Doyle pleaded not guilty to all counts, as the other defendants also did. All moved, pursuant to F.R.Cr.P. 12(b), that the indictment be dismissed on the grounds that, because of the long impounding, the prosecution was barred by the five-year statute of limitations, 18 U.S.C. § 3282, they had been denied the right to a speedy trial guaranteed by the Sixth Amendment, and there had been unnecessary delay in bringing them to trial within F.R.Cr.P. 48(b). Judge Clarie granted the motions of Sherwood, Berman and Korn, because of the long delay in unsealing the indictment after the fall of 1962 for reasons unrelated to the prompt obtaining of custody, see F.R.Cr.P. 6(e). However, the court denied Doyle's motion, finding that the sealing of the indictment from July 2 to August 23, 1962, to obtain custody of Sherwood and Berman was reasonable*fn1 and that thereafter "the continued sealing was materially contributed to and caused by the defendant's own efforts."
During the fall and winter of 1964, many further motions relating to Doyle were decided. At a pretrial hearing on February 2, 1965, Judge Clarie announced he reluctantly would grant a request by Doyle, consented to by the Government, for an adjournment until the next day to enable counsel to agree on certain dates on which the evidence would be focused, "with the understanding that there will be no further continuance in this case for any reason whatsoever." When counsel appeared the next morning, Doyle's trial counsel, a Connecticut attorney of wide experience, announced "there is going to be a change of plea in our case, John Doyle. We would like to change the plea." After interrogating Doyle, Judge Clarie inquired whether "the defendant is to be put to plea on all counts?" The United States Attorney responded that the changed plea was to be only to Count 4, relating to a sale of 50 unregistered shares on July 23, 1957, and that "the Government will address itself to the remaining counts at the time of disposition." After further allocution, the judge authorized withdrawal of the not guilty plea on Count 4 and Doyle pleaded guilty on that count. The court asked "what comment does counsel care to make concerning a trial of the remaining counts of the indictment," the United States Attorney responded with the same formula as before, the court inquired whether this meant that "the Government contemplates a dismissal or nolle of the remaining counts," and the prosecutor answered "Yes."
On May 3, Doyle appeared for sentence. After extended argument by his attorneys, of which more hereafter, the judge sentenced him to pay a $5,000 fine and to be committed to the custody of the Attorney General for three years, with execution of the prison sentence to be suspended after three months. The Government then moved to dismiss the remaining counts, and this was granted. At his attorneys' request Doyle was given until May 24 to arrange his affairs. On May 12 he filed a notice of appeal to this court, and also moved in the district court for modification of his sentence. At a hearing on May 17, the judge denied motions for leave to see the probation report and for bail pending the appeal; the motion for modification of sentence was not pressed because of the appeal. Later this court denied a motion by the Government to dismiss the appeal as frivolous and granted bail, but set an expedited schedule for hearing.
The points sought to be raised on appeal, where still another attorney represented Doyle at argument, fall into two categories.*fn2 One concerns the delay in unsealing the indictment, under the not unrelated rubric of the five-year statute of limitations, 18 U.S.C. § 3282, and the provisions of the Sixth Amendment and F.R.Cr.P. 48(b) as to speedy trial. The other goes to matters concerning sentence. We do not believe the substantive questions in the first category can be reached. And even if we were to make the assumption -- in all likelihood unduly charitable -- that the claims with respect to sentence, if established, would fall within the narrow range where a federal appellate court may direct resentence, see United States v. Wiley, 267 F.2d 453 (7 Cir. 1959), we find not the slightest merit in those here asserted.
The cases are legion that "[a] plea of guilty to an indictment is an admission of guilt and a waiver of all non -- jurisdictional defects." United States v. Spada, 331 F.2d 995, 996 (2 Cir.), cert. denied, 379 U.S. 865, 85 S. Ct. 130, 13 L. Ed. 2d 67 (1964), and cases cited; United States ex rel. Boucher v. Reincke, 341 F.2d 977, 980-981 (2 Cir. 1965). Although failure of the indictment to charge an offense may be treated as jurisdictional, United States v. Cook, 84 U.S. (17 Wall.) 168, 21 L. Ed. 538 (1872), held that an indictment states an offense even though the crime alleged appears to be barred by limitation. In United States v. Parrino, 203 F.2d 284, 286-287 (2 Cir. 1953), this court, speaking through Judge Learned Hand, applied the Cook case so as to prevent relitigation of the issue of limitations after a plea of guilty. Pate v. United States, 297 F.2d 166 (8 Cir.), cert. denied, 370 U.S. 928, 82 S. Ct. 1569, 8 L. Ed. 2d 507 (1962), followed the same rule with respect to a claim of denial of speedy trial in violation of the Sixth Amendment. We recognize that the Criminal Rules contemplate that the issue of speedy trial may be raised by pretrial motion, F.R.Cr.P. 48(b), and that a few courts have allowed limitations questions to be considered under Rule 12(b) (1) before trial, e.g., United States v. Zavin, 190 F. Supp. 393 (D.N.J.1961). In our view, the effect of a plea of guilty does not depend on whether an issue sought to be pressed on appeal or in collateral attack might have been, or was in fact, properly raised in advance of trial. An unqualified plea of guilty, legitimately obtained and still in force, bars further consideration of all but the most fundamental premises for the conviction, of which the subject -- matter jurisdiction of the court is the familiar example. The claims here asserted have nothing of this quality.*fn3
Appellant argues that this rule runs counter to sound principles of judicial administration since, if a defendant is willing to rely on his ability to convince an appellate court of the validity of his rejected claims as to delay, a trial on the merits ought not be required. The premise is sound enough but the conclusion does not follow. There are a number of ways to deal sensibly with such a case without departing from the principle of Parrino. A plea expressly reserving the point accepted by the court with the Government's consent*fn4 or a stipulation that the facts are as charged in the indictment are two; failing either of these, the defendant can simply stand on his not guilty plea and put the Government to its proof without developing a case of his own.
Doyle contends that however the matter might otherwise stand, a conclusion favorable to him is compelled by Jaben v. United States, where the Eighth Circuit permitted the defendant who had pleaded nolo contendere to assert on appeal a claim of limitations as to which the district court had denied a motion to dismiss, 333 F.2d 535 (8 Cir. 1964), and the Supreme Court affirmed the conviction without discussion of the point, 381 U.S. 214, 85 S. Ct. 1365, 14 L. Ed. 2d 345 (1965); indeed, Doyle's appellate counsel urged in argument that the Government must have conceded this in the Supreme Court. The contention is rather swiftly answered by examination of the record -- which was not brought to our attention by counsel for either side. For this shows that Jaben pleaded nolo on the express condition "that the defendant will then have an opportunity to have the question as to whether the said count is barred by the statute of limitations decided upon by the Eighth Circuit Court of Appeals or by the Supreme Court, and that the plea of nolo contendere is not to preclude the defendant from taking an appeal on the issue at that time." It is thus unnecessary to consider the other possible grounds of distinction which the Government needlessly urged.
Moreover, even if Cook and Parrino do not mean what we think they mean, we would nevertheless decline to consider Doyle's limitation and Sixth Amendment claims on the facts of this case. Even if such claims are not waived by pleas of guilty simpliciter, a defendant advised by counsel can agree so to waive ...