Leonard SALDANA, Appellant, v. UNITED STATES of America, Appellee, 274 F.2d 352

CHAMBERS, Circuit Judge. The judgment of conviction is affirmed. We hold that the second judge of the United States District Court for the Southern District of California was legally justified sua sponte under the circumstances of this case in ordering the plea of guilty on the first and second counts withdrawn (which plea had been entered before another judge of the same court) and directing the entry of a plea of not guilty. Further, we are convinced that the trial, after this change of plea, did not constitute double jeopardy for the defendant.

The fifth count, the subject of a ten year sentence for Saldana, only charged “sale and facilitation of sale.” Obviously, under the testimony, Saldana was guilty of the crimes of possession of and transportation of unstamped narcotics, but he was not charged with those crimes. We are of the opinion that under the evidence (upon which defendant could have had upon request proper instructions as to the elements of sale) it was a question of fact for the jury whether there was a sale as charged in the fifth count.

We have examined all specifications of error and find those not mentioned hereinabove to be without substance. • Counsel’s excellent presentation just overlooks the fact that there was never any plea of guilty or motion to dismiss on counts three, four and five. So the court was justified in going ahead on those counts. Had the court been less abrupt in proceeding,' but firm nonetheless, defendant surely would have wanted to withdraw the guilty pleas on the first two counts. The court not being willing to dismiss the last three counts, it would appear that what the court did was eminently fair.

Judgment affirmed. . Of the eleven authorized for the whole district, there are eight active district judges in the Southern District of California whose official station in the Central Division is Los Angeles. Under the local rules, and by rotation, each judge presides over the criminal calendar for a period of three months. In turn, he is succeeded by another. The judge presiding over the criminal calendar normally receives all pleas and imposes the sentences on the guilty pleas. Ordinarily, ho tries the short criminal cases.

If his calendar does not permit him to hear the longer cases (over four days) he assigns them to other judges. Hero the first judge, presiding over the criminal calendar, on .Tune 16, 1958, received a plea of not guilty from Saldana and his co-defendant, Albert Palomino. Trial was set by judge No. 1 to be held before judge No. 2 on July 15, 1958, a date within the upcoming term of service of judge No. 2 as presiding judge of the criminal calendar.

As the days for service of judge No. 1 on the criminal calendar grew fewer and fewer, Saldana appeared on June 26 before judge No. 1, withdrew his former plea as to counts one and two and entered a plea of guilty. At the suggestion of the district attorney, passing of sentence was postponed until after the trial of Palomino. The record shows quite clearly that the defendant wanted judge No. 1 to handle his case. After postponements by judge No. 2, Palomino’s trial was called for July 29. There was no trial on that date because Palomino had fled the jurisdiction.

Shifting his attention to Saldana, judge No. 2 decided that he was not satisfied with the circumstances surrounding the plea of guilty on the first two of the five counts. Therefore, he entered the plea of not guilty for the defendant on counts one and two. . 5th Amendment to the Constitution of the United States: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; * * * ” See, thereon, the early leading case of United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165. .

The claim of double jeopardy and a claim that judge No. 2 was not authorized under the statutes or Federal Buies of Criminal Procedure to change a plea by his unilateral act can only by addressed now to count two because there was an acquittal on count one. There was a conviction on counts two, three, four and five. The plea of not guilty on counts three, four and five was never withdrawn, never changed. Saldana did expect the district attorney to dismiss the indictment on counts three, four and five, but it never happened.

In making a very fine presentation of arguments of double jeopardy and of simple error as to the withdrawal of the pleas on counts one and two, counsel for appellant has overlooked Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, and the legion of cases following it, e. g., our ease of Doan v. United States, 9 Cir., 202 F.2d 674. Here in Saldana’s case, his sentence on count two was concurrent with that of count three. The plea in count three was always “not guilty.” And, count three seems amply supported by the evidence. . Saldana was arrested with some five ounces of heroin in hand.

Simultaneously, Palomino, also at the scene, was arrested. During the initial excitement of the announced arrest Saldana tossed the bag containing the heroin to the agent Licuanan who had negotiated the purchase. No money, on this occasion, ever changed hands. Appellant says there was no sale. The briefs of the parties ignore this last incident. They meet the issue of sale on the assumption that there was neither consideration nor delivery. The government’s position is that earmarking the heroin for delivery constituted a sale. .

Our decision herein on the fifth count does not rest on the government’s theory that “appropriation or segregation of goods for delivery” completes a sale. While one may think it improbable that Saldana, his arrest having been announced, intended to go ahead and complete the transaction. How can one know here as a matter of law what was in Saldana’s mind when he threw the package to Agent Licuanan? And, if it is the state of his mind, it should be a jury question.

And, as a jury man in appraising his state of mind, one might remember that at the moment he parted with the package defendant beyond cavil had the guilty knowledge of having been caught with the possession of the unstamped narcotics and having been seen transporting it. At such a time, he in excitement might complete the transaction. To say as a matter of law what was in the mind of Saldana, the majority herein thinks invades the province of the jury.