The United States is appealing from a judgment of the district court allowing McAleney’s motion under 28 U.S.C. § 2255 to vacate his guilty plea and the judgment of conviction and commitment that was thereafter entered upon the plea. McAleney alleged, and the court in substance found after hearing, that his plea wаs involuntarily made, having been induced by the representation of his attorney, Norman MacKay, that the Assistant United States Attorney, Michael Collora, had agreed to recommend to the judge a three-year term of imprisonment. The Government in fact made no recommendation to the judge, and a seven-year prison sentence was imposed.
At the initial hearing on the section 2255 motion, McAleney and two friends testified that he pled guilty on his attorney’s representation that government counsel would recommend three years. MacKay then testified, and admitted to making the representation to his сlient, saying that he had understood from conversations with Collora that the Government would, in fact, so recommend. Although not available at the time of the section 2255 hearing, Collora filed an affidavit denying that he had agreed to any such recommendation, and the Government sought a continuance sо that Collora could testify. The court ruled, however, that the issue was “not what Mr. Collora said; it is what [McAleney’s] own attorney MacKay said to him as a result of discussions he had with the Assistant United States Attorney”. The court concluded, “when McAleney changed his plea he did so on the basis that he assumed the Governmеnt would be recommending a three-year sentence of imprisonment in his case to Judge Caffrey”. On the basis that McAleney was induced to plead as the result of his attorney’s advice that a promise had been made, the court allowed the motion to vacate.
The case was argued to us in this posture, but before deciding we remanded in order *284 to obtain Collora’s testimony and for supplemental findings thereon. We believed that the Government’s role in the misunderstanding was an issue too important to be left dangling, not merely because of its possible bearing on McAleney’s right to plead over but also because of the responsibility of the district court and ourselves to see that government and defense counsel adhere to acceptable standards in the plea bargaining process, the integrity of which is of paramount significance in the administration of criminal justice.
At the second hearing, held before the same district judge, Collora testified and MacKay again testified. The court found that Collora had informed MacKay, prior to McAleney’s plea, that the judge before whom McAleney’s criminal case was pending had a policy that he would only accept a recommendation from the prosecutor of jail or no jail, and not of a specific term of years. The court noted that MacKay “could not remember” Collora’s so informing him; that MacKay was not acquainted with the judge’s policy; and that MacKay had never before tried a case to final verdict in the federal court. The court went on to find that Collora, upon being pressured by MacKay as to what he thought McAleney would get, “shrugged his shoulders, raised his hands, and ventured his personal opinion that, because of McAleney’s health situation, if brought to the court’s attention, he might get three to five years in prisоn.” MacKay, the court found, “transmitted Collora’s personal response to his client, and the plea then followed”. The court added that Collora had not meant to mislead MacKay and his client.
Subject to the alternative relief described below, we affirm the district court’s judgment vacating the plea and sentence. We must accept the court’s findings of fact if they are not clearly erroneous, and on this record we have no reason to dispute the findings made. Fed.R.Civ.P. 52(a).
Zovluck
v.
United States,
This, of course, is the crux of the case, because if the only message transmitted had been that Collora opined that the judge would give three tо five years, Mc-Aleney would have no grounds for relief.
Calabrese v. United States,
“. . . [Djefendant alleges that he was informed about the United States Attorney’s promise [to make a vеrbal recommendation that defendant be sen *285 tenced to ten not twelve years imprisonment] indirectly by his own counsel. A ‘mere prediction by counsel of the court’s likely attitude on sentence, short of some implication of an agreement or understanding, is not ground for attacking a plea.’ Domenica v. United States,292 F.2d 483 , 485 (1st Cir. 1961). Here, however, defendant alleges that his counsel purported to speak on behalf of the United States Attorney; that ‘a “working agreement” had been formulated by the defense counsel and the United States Attorney and that said agreement was breached and disavowed by both parties concerned.’ See Machibroda v. United States,368 U.S. 487 , 489,82 S.Ct. 510 ,7 L.Ed.2d 473 . . .. Even if no ‘working agreement’ existed in fact, the voluntariness of defendant’s guilty plea would be seriously in question if it was induced by representations of court-appointed counsel [ 1 ] that such an agreement was in effect. See United States ex rel. Thurmond v. Mancusi,275 F.Supp. 508 , 516 (E.D.N.Y.1967).”
The Government argues that there is a difference between an alleged government promise to recommend а sentence, and a representation that an accused will get a particular sentence. But in
Pallotta
we also had before us an alleged promise to recommend a sentence; and a defendant would rightly see such a promise as likely to exert a powerful, even if not necessarily a conclusive, effect.
See United States v. Paglia,
The Government’s strongest argument is that a Rule 11 hearing took place during which McAleney, with MacKay at his side, responded “no” to questions whether anyone coerced or pressured him to plead, whether anyone made “any promises or extenuating inducement”, and whether “any plea bargaining [took] place”. We said in
McCarthy,
however, that most defendants could be expected to deny “any impropriety” during the Rule 11 hearing,
In
Fontaine v. United States,
While we therefore substantially affirm the judgment below, we think the relief afforded should be tailored in one respect not dealt with below or by the parties. McAleney was relieved from his plea even though the Govеrnment’s supposed promise went only to the recommended sentence. This places a potentially greater burden on the Government than had it actually reneged on a promise: in the latter instance we have limited relief to resentencing before a different judge to whom the omitted recommendation must be made. See, e.
g., Mawson, supra,
We regard the conduct of defense counsel in this case as a matter which should not be dropped without final resolution, either in the district court or in some suitable proceeding elsewhere. The public and the courts are serioüsly burdened when because of the avoidable errors of counsel, defendants are relieved from guilty pleas. Here the district court’s action, and our affirmance, is premised on the central assumption that such an error was made — that the accused was misinformed by his privately retained counsel as to what the Assistant Unitеd States Attorney had said. «Either the mistaken information was transmitted wilfully or incompetently — in which case the attorney’s continued license to practice in the district court must be carefully considered — or else there were extenuating circumstances which, in fairness to MacKay, should be made known. Thеre is also to be entertained the possibility of perjury and collusion aimed at upsetting the original sentence.
Under the new guidelines and procedures stated in the revised Rule 11, defense counsel as well as prosecutors bear heavy duties to their clients and the court. We believe that when аn attorney makes a significant representation of fact to his client, such as of a promise by the Assistant United States Attorney and the terms of that promise, the client is entitled to believe him. If this assumption cannot be indulged, the *287 negotiations sanctioned under Rule 11 will be seriously impeded. There is accordingly a duty on attorneys to make sure whenever participating in plea bargaining proceedings, which are under the close scrutiny of the court, that any information they convey to their client is accurate and complete and that they understand what the applicable law and rules are. Failure to adhere to professional standards in this regard is no minor imperfection, and in our view constitutes grounds for questioning an attorney’s continued fitness to represent clients in the federal courts. We leave it to the district court or other appropriate authorities to completе the investigation and take any action called for in this case.
Affirmed unless within thirty days the United States elects to proceed as set forth herein, in which event the case is remanded for further proceedings consistent herewith.
Notes
. MacKay was privately retained, not court-appointed, but we seе no basis for distinction on that score.
. We also note that subsequent to McAleney’s Rule 11 hearing, the procedures required of a judge before accepting a guilty plea were particularized along lines reminiscent of those in Mawson.
Rule 11(d) now reads in part,
“The court shall also inquire as to whether the defendant’s willingness to рlead guilty or nolo contendere results from prior discussions between the attorney for the Government and the defendant or his attorney.”
A specific negative response by McAleney to a question framed precisely in these terms would probably have foreclosed relief now. The question asked — whether “any plea bargaining [took] place” — is considerably more open to interpretation, since the term “plea bargaining” has a variety of connotations, and a layman might not necessarily know that a government promise to recommend a particular sentence was a “plea bargain”.