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United States v. Vermeulen

decided: December 31, 1970.

UNITED STATES OF AMERICA, APPELLEE,
v.
JACQUES RENE HENRI VERMEULEN, DEFENDANT-APPELLANT



Moore, Friendly and Adams,*fn* Circuit Judges.

Author: Moore

MOORE, Circuit Judge:

The appellant, Jacques Rene Henri Vermeulen, bases his appeal upon claims (1) that the sentencing court failed to advise him that, on pleas of guilty to each of two counts, consecutive sentences could be imposed and (2) that the court imposed maximum sentences because he refused to cooperate by explaining other criminal acts disclosed in a pre-sentence report, thus allegedly violating his Fifth Amendment rights.

After waiving grand jury indictment, appellant pleaded guilty to two counts contained in an information which alleged violation of 18 U.S.C. ยงยง 1546 and 1001, respectively. Count one charged appellant with possession and use of a falsely made passport and visa known by him to be false and a wilful attempt to evade the immigration laws by appearing under an assumed name. Count two charged appellant with knowingly and wilfully using a false United States Customs declaration. Appellant, a French national, neither spoke nor understood the English language. An interpreter was employed.

The Plea of Guilty

When his guilty plea was accepted, appellant was represented by counsel, Edward Kelly. Prior to accepting the pleas, the following colloquy took place:

"The Court: Do you know by pleading guilty to these two charges in count 1 and count 2 that you could be sentenced to pay a fine of $1000, up to $1000, or you could be sentenced to a jail term of up to five years for count 1 and also fined up to $1000, or a jail term up to five years or both on count 2?*fn1

"The Defendant: Yes, your Honor."

"The Court: Has anybody led you to believe that they know what the sentence will be and led you to believe that the sentence would be less than the maximum on each of the two counts and that for that reason you are offering to plead guilty?

"The Defendant: Absolutely not * * *"*fn2

The Sentence

Thereafter (and before a judge other than the judge accepting the guilty pleas) appellant appeared in court with Mr. Kelly, his counsel, another New York lawyer, Mr. Patrick McGinley, who appeared at the request of appellant's French lawyer, and Mr. Robert Hamilton, a lawyer and French interpreter, who with Mr. McGinley had previously conferred with appellant while he was in detention. Thus, to safeguard his interests appellant had his counsel Mr. Kelly, additional counsel to aid him and a lawyer-interpreter of his choice.

The court made available to appellant's counsel the presentence report, which had been supplemented by material furnished to the Probation Department by Mr. McGinley. Thereupon, Mr. Kelly spoke at some length, dealing with appellant's background, with the references in the probation report to possible involvement in narcotics and a bank check violation, and ended with a plea for leniency. The court then asked Mr. McGinley whether he wished to add to Mr. Kelly's remarks. Mr. McGinley said that he, Mr. Kelly and Mr. Hamilton "on many occasions upon visiting the defendant at West Street [place of detention] have urged him [appellant] if there are any circumstances that he is aware of and that he can only help his own cause by making those things known to the Court * * *"*fn3 Appellant, however, "told us [them] time and again that there is nothing that he can bring to the Court's attention."*fn4

The court was concerned over appellant's failure to offer any explanation as to why he had used various aliases in connection with his entries into this country. But these, as Mr. McGinley pointed out, and the Court acknowledged, were "not things with which this defendant has been charged and of which he stands convicted this morning."*fn5 Turning to the charges in this case, the Court advised counsel that appellant had "pleaded guilty to two counts, each of ...


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