United States v. Francisco Pineda-Espinoza, 455 F.2d 498 (9th Cir. 1972). · Go Syfert
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United States v. Francisco Pineda-Espinoza, 455 F.2d 498 (9th Cir. 1972). Cases Citing This Book View Copy Cite
4 citation events across 2 distinct courts.
Strongest positive: United States v. Peter Erlenborn (ca9, 1973-07-13)
Statutes interpreted (leading-cases list)
#17 26 U.S.C. § 4704(a) cited 1× in this case · 29 total citations of statute
Top citers, strongest first. 2 distinct citers. How cited ↗
discussed Cited "see" United States v. Peter Erlenborn
9th Cir. · 1973 · signal: see · confidence high
See Maxwell v. United States, 9 Cir., 1966, 368 F.2d 735 (trial court refused to accept guilty plea because defendant stated he had been drinking and had no recollection of committing the crime) and United States v. Pineda-Espinoza, 9 Cir., 1972, 455 F.2d 498 (Ely, J., concurring) (tendered guilty plea refused because defendant denied knowledge that packages he possessed contained heroin; if record had disclosed plea was induced by plea bargain, acceptance of plea might have been appropriate even so).
cited Cited "see, e.g." United States v. Jose Melendrez-Salas
9th Cir. · 1972 · signal: see also · confidence low
See also United States v. Pineda-Espinoza, 455 F.2d 498 (9th Cir. 1972).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Francisco PINEDA-ESPINOZA, Appellant
26938.
Court of Appeals for the Ninth Circuit.
Feb 28, 1972.
455 F.2d 498
Manuel H. Garcia, Esq., Tucson, Ariz., for appellant., Richard K. Burke, U. S. Atty., James M. Wilkes, Asst. U. S. Atty., Tucson, Ariz., for appellee.
Ely, Wright, Kilken-Ny.
Cited by 4 opinions  |  Published
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Manuel H. Garcia, Esq., Tucson, Ariz., for appellant.

Richard K. Burke, U. S. Atty., James M. Wilkes, Asst. U. S. Atty., Tucson, Ariz., for appellee.

Before ELY, WRIGHT and KILKENNY, Circuit Judges.

PER CURIAM:

Lead Opinion

PER CURIAM:

Pineda-Espinoza, convicted by a jury of possession of heroin in violation of 21 U.S.C. § 174, appeals on the ground that the District Court erroneously refused to accept his plea of guilty to the offense of purchasing or selling narcotic drugs except in the original stamped package in violation of 26 U.S.C. § 4704(a). Prior to his trial on the one-count indictment charging the violation of 21 U.S.C. § 174, the accused appeared before the District Court and, pursuant to an agreement with the United States Attorney, waived the filing of an indictment and consented to the filing of an information charging violation of 26 U. S.C. § 4704(a). He tendered his guilty plea to this charge but, under questioning by the court, denied knowledge that the packages which he had possessed contained heroin. Because of this denial, the District Court refused to accept the guilty plea, and the subsequent trial and conviction on the section 174 charge ensued.

North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), does not support appellant’s position. We find no error and affirm the judgment.

Concurrence

ELY, Circuit Judge

(concurring):

I concur in the result. When, on October 22, 1970, the district judge stated that the appellant’s plea of guilty would not be accepted, he apparently granted a continuance to allow time for the preparation for the defense. Not at that time, nor at any time prior to trial on the original indictment, did Pineda-Espi-noza protest the District Court’s rejection of his tendered plea. The trial did not commence until October 27, 1970. In these circumstances, there is the unmistakable inference that the appellant acquiesced in the court’s refusal to accept his plea of guilty to the less severe offense. If the record disclosed, as it does not, that the plea of guilty was tendered as a result of plea bargaining, then it is my opinion that the court might have appropriately accepted the plea, despite Pineda-Espinoza’s insistence that he was ignorant of the nature of the material which he possessed. All doubts might have been eliminated had the court carried his Rule 11 inquiry a bit further so as to have been made aware, if such were the fact, that Pine-da-Espinoza had understandably chosen to enter the plea to the lesser offense so as to avoid the risk of conviction on those charged offenses which were more[*500] severe. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L. Ed.2d 162 (1970); cf., McCarthy v. United States, 394 U.S. 459, 464-467, 470-471, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).