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UNITED STATES v. FRIEDMAN

May 19, 1977

UNITED STATES OF AMERICA
v.
GILBERT ANDREW FRIEDMAN, a/k/a "Chris", Defendant



The opinion of the court was delivered by: DUFFY

KEVIN THOMAS DUFFY, D.J.

 On July 27, 1976, Gilbert Andrew Friedman withdrew his plea of not guilty and entered a plea of guilty to one count of conspiracy to possess with intent to distribute certain schedule 3 narcotic substances. The defendant was represented by private counsel. On September 17, 1976, after exercising his right of allocution, he was remanded by this Court to the custody of the Attorney General for a period not to exceed three years to be followed by a special parole term of three years. Thereafter his original counsel was discharged and new counsel was retained. On October 29, 1976, the new counsel moved under Rule 35, Fed.R.Crim.P., to reduce the sentences. Accompanying the motion were letters of support from friends and associates of Mr. Friedman. I denied the motion on December 16, 1976.

 Following the denial, second counsel was discharged and third counsel was retained. A motion has now been made to permit the withdrawal of the plea of guilty pursuant to Rule 32(d) of the Fed.R.Crim.P. on the grounds that the plea was constitutionally defective, defendant was ineffectively assisted by counsel, and errors were present in the presentence report.

 I.

 It seems a futile exercise to quote from the plea minutes at length. They speak for themselves. I note that Friedman through his attorney waived a reading of the indictment, and that Friedman was informed that he had a right to a public trial before a judge or judge and jury; that at such a trial he had the right to confront witnesses and cross-examine them; that he would be presumed innocent until proven guilty; and that he would be entitled to call his own witnesses and, if necessary, the Court would issue orders to have such witnesses produced. At four separate junctures, Friedman expressly acknowledged that he understood these rights.

 I then asked the defendant if he understood that the indictment charged him with distributing or possession with intent to distribute valium and amphetamines. Friedman expressed his awareness of the charge by stating that as far as he knew, only valium was involved in the conspiracy. When asked whether he did in fact possess the valium, he answered in the affirmative.

 Friedman further indicated that no threats or promises had been made to induce him to plead guilty and that no one made any predictions as to the sentence that might be imposed. He indicated that he was not under the present influence of any narcotic drug or alcohol and that he was not then under the present care of a psychiatrist or physician.

 Defendant's initial argument is that he did not "understand the essential elements of the crime charged." McCarthy v. United States, 394 U.S. 459, 471, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969). However, when I asked Friedman whether he wished the first count read to him, his private counsel responded, "Your Honor, we waive the reading. It has been explained to him." The record also indicates that Friedman heard the plea allocution of his co-defendant, Alan Gassberg.

 I explained to Friedman the count to which he was pleading in the following manner:

 "Q. The first count of this indictment basically charges you with conspiring with your co-defendant and possibly with others to possess with intent to distribute, and/or to distribute, certain schedule 3 narcotic drugs basically valium and amphetamines.

 Do you understand that, sir?

 "A. Excuse me, your Honor?

 MR. PASSIN: Your Honor, my client explains to me there were no amphetamines at all.

 THE COURT: As far as he was concerned, but as part of the conspiracy.

 "Q. Do you agree it was part of the conspiracy?

 "A. There was no amphetamines, your Honor, not to ...


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