*1 appellee’s theory own is in- the theft reviewing entire credible. After
record we entertain the firm and definite
conviction that a mistake was made
the trial court. On basis of all case, evidence in this we believe finding jewelry was stolen appellee
the car trunk at a time
was in vehicle, such the lower bridged impassable an as- chasm with sumption.
The cause is remanded to the District Court with instructions to vacate
judgment judgment and to enter appellee nothing. take America,
The UNITED STATES Appellee, LESTER, Defendant-Appellant.
Emanuel
No. Docket 24595. Appeals
United States Court of n Second Circuit.
Argued June Aug.
Decided *2 On indictment December
containing
filed
three counts was
U. S.
Dis
District Court for the Western
*3
against
trict of
York
defendant
New
charged
and two others.1
first count
The
importation
unlawful
defendant with
18 U.S.C.
merchandise in
violation
545;
aiding in such
§
the second with
importation
of 19
unlawful
in violation
483;
U.S.C.A.
con
and
with
§
the third
spiring unlawfully
import
merchan
dise
The
in
18 U.S.C.
violation of
§
14,
arraigned
January
defendant was
on
represented
1952 at which time
was
he
guil
counsel
of not
who entered a
ty in his
no
behalf. There were
further
proceedings
1954,
July 13,
until
counsel,
defendant,
appeared be
without
Knight
fore
at James
District
town with
United States
the Assistant
Attorney, Cordes, and
U. S. Customs
two
agents;
plea;
and
his earlier
withdrew
pleaded guilty
to the second count of
Thereupon,
indictment.
on motion
Government,
and
counts
first
third
July
the indictment
dismissed. On
Atty.,
Henderson,
D.W.
John 0.
U. S.
12,
day
guilty,
pleaded
before he
Y., Buffalo,
Fallon,
(Leo
N.
Asst.
N.
Y.
J.
the indictment
defendant had discussed
counsel),
Atty., Buffalo,
Y., of
U. S.
N.
Buf
with Cordes
in
in the latter’s office
appellee.
for
Although
appearance of
falo.
notice of
City,
Tompkins,
York
Bernard
New
filed
counsel for
been
the defendant had
Edelhertz,
City,
(Herbert
York
New
20,
May
appearance
on
not
had
counsel),
defendant-appellant.
for
withdrawn,
not
the defendant
HAND,
and
LUMBARD
accompanied by
lawyer
July
Before
on
12.2
Judges.
WATERMAN, Circuit
July
The
defendant’s version
meeting
sup
in
is found in his affidavit
reargue.
port of his motion for leave to
Judge.
WATERMAN, Circuit
asserts
He
that Cordes offered to dismiss
appeals (1)
from
or-
The defendant
the first and third counts of
indict
July 30,
U. S.
1956 entered
der of
plead
if he would
ment
the sec
District
Court
the Western
District
says
replied
The
ond.
he
denying
filed
York
his motion
of New
charges against
he was innocent of the
plea of
sentence to withdraw a
before
go
him
that he had no intention
(2)
July
13,
entered
ing
jail.
In answer to this he
denying'
was told
subsequent order
from
cooperation
because of
filed after
sentence for leave to
motion
get
reargue
prior
full
denied motion.
cases he “would
consideration
April
pleaded
14,
for him on
docket entries
show that on
had
Jan.
The
1956,
trial court ordered the dis-
the meantime.
The
deceased
attor-
apearance
against
ney
May 20,
filed an
on
missal of the case
one'
who
'
City lawyer
on
York
-and that
March
was a New
defendants
appear
actively
an order
not
to have ever
there was
estreat
the bail
does
any stage
participated
in court at
of the other.
bond
proceedings.
original
2. The
counsel who
defendants
Morgan
guilty.
in the district
before
if
Court”
he
from the
un-
and moved
his earlier
states
The
further
“nothing
permitted
to mean that
withdrawn
that he be
derstood
guilty.
hearing,
plead
Govern-
happen”
The
not
to him.
After
would
meeting,
while
then
motion was denied. Sentence was
pronounced.
ment’s version of
contradicting
appealed
version
defendant’s
Lester
Pending
ap-
respects,
material-
from it
denial of his motion.
all
does differ
hearing
defendant,
peal,
23, 1956,
ly.
July 30,
on
on October
At the
lawyer,
represented by yet
on be-
motion
now
another
first
there
*4
defend-
the
re-
that
moved the
for leave to
of the Government
district court
half
argue
dis-
previously-denied
and after
office
the
motion.
while at Cordes’
ant
ap-
plead
indictment, offered to
This motion
also denied. Lester
cussion of the
was
guilty
pealed
testi-
Cordes
count.
from this
ordered
to the second
decision. We
promises
appeals
to induce
no
the two
fied
he made
consolidated.
that
agent
pres-
was
plea.
who
A
the
customs
this,
meeting
at the
corroborated
ent
On the
us there
record before
was
Knight
the defendant
that
further testified
can be no
but that
doubt
might
pris-
fine or
receive a
duty
told that he
perform
adequately
his
failed to
suspended sentence.
guilty
on
or
plea
term
of
was
on
when the
July
received
13,
of
changed
plea
1954. Rule 11
the Federal
defendant
When the
Procedure,
following day
Rules of
18 U.S.C.
Criminal
neither
open
on the
accept
provides
not
brought
that the court “shall
out before
of
versions was
these
plea
guilty]
first deter
transcript
[of
the
mining
without
of
judge. The entire
the trial
plea
voluntarily
is
that the
set
copy
is
proceedings,
of which
a
these
understanding
of
only
with
of the nature
the
margin,3
that
reveals
the
forth in
charge.” While such a determination
questions
defendant,
reply
to
the
require
partic
does not
observance of a
Cordes,
desire
did not
indicated that he
ritual,
Davis, Cir.,
v.
ular
United States
7
counsel;
re-
he had
that
of
the assistance
264;
1954,
indictment;
212 F.2d
United States v.
he
copy
that
of
ceived a
the
Swaggerty, Cir., 1955,
875,
charge against him;
218 F.2d
the
understood
clearly contemplates
Rule
there
guilty
the
that
second count
to the
that
something
perfunctory
a
im- be
more than
not
was
indictment. Sentence
of the
by
prosecutor
years elapsed
examination conducted
the
before
posed.
two
Over
judge
In
that does
serve to inform the
any
proceedings.
not
further
were
there
knowledge
Knight
prisoner’s
of
of the
the extent
deceased.
meantime
the
sentence,
consequences
a
July 30, 1956,
of the
of his choice of
prior
the
to
On
guilty plea.4
— n
inquiry
A
defendant,
counsel, appeared
mere routine
with new
plead.
in three counts —Inasmuch as
United
Mr. Lester
To
3. “Mr. Cordes:
going
arraigned
previously
is
you
States
to move
dismiss the
in this
simply
January 14, 1952,
first and third counts I will
read
at which time
case on
guilty.
plea
the second count
to which
defend-
you
wish
a
entered
(Indict-
any
plead.
proceed
you
ant states he wishes to
we
advise
before
read.)
Lester,
right
you
you
ment
do
Mr.
under-
have
to have
a
that
further
charge?
any
lawyer,
counsel,
stand that
or
now
is
you
stage
proceeding.
“Defendant: Yes.
Do
n
you
lawyer
plead?
“Mr. Cordes: How do
now or at
have
wish
Guilty.
stage?
“Defendant:
guilty
No,
“Mr. Cordes: Plea of
entered to
sir.
“Defendant:
of the
the second count
indictment
Cordes: Counsel waived. Will
“Mr.
States moves to
United
dismiss
Mr. Lester
has
show that
record
.
and third counts.
first
copy
already
indict-
received a
August
Court:
9th.
“The
you
will
state for
the record
ment
satisfactory
It
is
“Mr. Gordes:
copy
you
in-
received a
of the
be continued.”
bail
dictment?
provides
arraigning
4. Rule
Yes.
“Defendant:
n
may
charges
Jury
judge
discretion refuse to ac-
Cordes: The Grand
“Mr.
plea
entered
questions
was
asking
time the
of several standard
had,
discharge
claimed,
duty of
as
mis-
—will not suffice to
duty
led
United
fed-
the Government. Cf.
of a
is the
the trial court.
It
Davis, supra.
is-
judge
accepting
States v.
It was this
eral
before
investigate
sue which
raised
the motions
thoroughly
cir-
was
subject
denial of
is
of this
made.
which
cumstances
under
it
appeal.
Davis, supra.
John-
Cf.
United States v.
Zerbst, 1938,
58 S.Ct.
U.S.
son v.
The motion for withdrawal
82 L.Ed.
Kercheval
upon
was based
States, 1927,
220, 47 S.Ct.
274 U.S.
ground
believed, at
the defendant
L.Ed.
Even when the
entered,
that he
the time
represented by
has been
counsel it
pleading guilty
to a misdemeanor
ac-
held that
mere statement
felony.
and not
af
The trial court
charge
cused that he understands
against
firmatively found
the defendant
against
him
relieve the court
does not
finding
on this
This
trial
issue.
inquiry.
responsibility
further
*5
the
of
court
to re
would have been sufficient
When,
Davis, supra.
United States v.
by
quire
disposition
us of
affirmance
his
case,
ap-
present
as in
the
the
of the
if
had
for the
motion
it
not been
pears
bene-
court without the
before the
inadequacy
prior proceedings
the
of
be
exacting in-
fit of counsel an
more
even
Judge Knight.
of
fore
The withdrawal
quiry
Comprehension of
is demanded.
plea
guilty
not,
a
federal
of
is
in the
charge
more than familiar-
the
demands
right.
courts,
legal
32(d),
a
Rule
Feder
alleged.
ity
with the crime
The
al
Per
Rules of Criminal Procedure.
plea has
must determine
the
whether
may
plea
mission
withdraw the
to
by
prosecu-
improperly
the
been
induced
granted at
the discretion of
trial
the
is
and whether
aware
tor
court and a
thereof
is reversible
denial
charges,
“the
of
the statu-
of
nature
only
appears
it
been
if
there has
tory
them, and
within
offenses included
an abuse of
v.
discretion. Williams
range
punishments
of allowable
States,
Cir., 1951,
5
United
192 F.2d
thereunder,
possible defenses
to
Cir.,
39;
States,
v.
Richardson
United
8
mitigation
charges
and circumstances
696;
Unit
217 F.2d
Stidham v.
thereof,
to
and all other facts essential
States,
Cir., 1948,
ed
8
294.
170 F.2d
understanding
mat-
broad
of the whole
a
But we think that
the failure of
Gillies,
U.S.
Von
v.
332
ter.”
Moltke
Knight
perform
fully
duty when
to
his
708, 724,
316, 323, 92
309.
68 S.Ct.
L.Ed.
accepted
guilty plea
man
made it
Cir., 1956,
Smith v. United
5
datory upon
Morgan,
Les
501 unambiguous promise that no 481; Sehon v. United States 168 F.2d F.Supp. prison imposed. D.C.S.D.W.Va.1947, He sentence would be Chinn, merely Cir., 1947, Assistant U. S. 163 F.2d states: “he [the affirmed * * * Attorney] plead told me to defend- in which the a case isNor charge failing I deny guilt, to the lesser and that by his seeks ant, get juryman’s would full from the consideration only in a “to ‘throw dust judge court. nothing him mean that who is not understood eyes, a or hoodwink ” Paglia, happen would to me.” This United States overwise.’ by denied Gov- statement was never Cir., 1951, 190 F.2d ernment, Norstrand, 1948, 168 but there States v. agent which, believed, repeatedly customs if would has The defendant F.2d negated claiming possibility innocence, the de- he have asserted prose- guilty only fendant could have so construed the because plea defend- statement. The fact that such him believe that cutor led may expectations have had prison ant result in a sentence. would not leniency plea result in suffi- would is not Surely de for the standard cient, in the absence of evidence termining whether expectation was induced the Gov- prior sentence be withdrawn ernment, justify withdrawal of the 32(d) is not favorable under Rule less Norstrand, plea. United States v. su- than the standard to the defendant acceptance pra; Chinn, su- United But, upon v. Sehon States Rule 11. under of such pra. remand, if court de- provides than a Rule *6 pleaded the defendant termines accepted is volun not unless it shall be guilty reasonably relying upon repre- tary. requirement is not satisfied This by prosecutor the that a sentations made by plea is not one who if the is entered imposed, prison not sentence would be fully consequences of his aware permission plea to then withdraw the fully plea, nor aware of the extent to granted. fact should be The the may safely placed reliance be Attorney’s Assistant United States may upon any representations which upon by relied statement defendant the by prosecutor made the or have been unambiguous promise is is not not government v. officials.5 Shelton upon conclusive of it issue whether States, Cir., 246 F.2d cf. United might reasonably have understood States, supra; Kercheval United by prisoner promise to be of lenien- Chinn, supra; United States v. Sehon cy. question crucial The is whether a Norstrand, supra. The States v. layman, represented by counsel and of defendant here has the burden es respective powers unfamiliar with the of tablishing plea that he entered his of might prosecutors judges, and have so guilty relying upon commitments made the statements. If the understood state- by prosecutor un and that he was ments the defendant claims made aware that such were not commitments been, fact, him found to are to have in binding upon Bergen court, the trial cf. made; if construction which the v. United 145 F.2d placed claims on to burden, 181. If he is able to sustain this was, under the statements es, circumstanc- plea motion to withdraw his should reasonable; and he is able to estab- granted. be misled; lish he was in fact then plea guilty his motion withdraw of to In his affidavit submitted in granted. be support the motion for of leave to re- denying argue, order defendant’s The motion does not claim reargue leave to his motion to Attorney with- the Assistant United States by him to the defendant do so 5. We here whether do not consider ground justify prosecutor to withdrawal of failure sufficient to recommend plea 32(d). guilty leniency promise under Rule accordance with a guilty again plea piea reversed, plea enter draw guilty may properly pro- of not for further de- caüse remanded ceedings conformity opin- nied. The feels there was no with this Court compulsion any mistake, or or ion. fraud any coercion, application or and the withdraw the en- Judge LUMBARP, (dissent- Circuit . tered before the late Honorable ing).' Judge -Knight, court, John July reasoning 13th, 1954, on is denied.” think the and decision of [Emphasis majority by are added.] contradicted hearings record of the on the motion possible I do not it is to con- see how withdraw entered be- Judge clude otherwise than Mor- reargue Knight, fore and to gan very considered the issues which motion, denial of that the de- implies the court now con- were not Judge Morgan. cisions of clearly shows, quotation sidered. As the Judge Morgan did not limit himself majority’s position The seems to be thought plead- whether Lester he was judge, Judge that because the trial ing guilty to a than misdemeanor rather Knight, adequately failed .to ascertain majority opinion felony, as seems whether Lester’s waiver of counsel was indicate, clearly but examined the understanding likely with “full * * * question -whole “fraud consequences” guilty, of his we ' ** * compulsion * * * any mistake, or must send case back for Mor- gan coercion.” specifically, to decide this. More purpose remand is for the sole of deter- proceedings And the record of the mining whether “the defendant amply this. first substantiates At the guilty .reasonably relying representa- on hearing prosecutor spe- was asked prosecutor pris- tions made that a cifically whether he had or “ofifer[ed] imposed.” on sentence would not be If anything exchange promise him [d] *7 representations alleged by Lester plea.” replied: for a “I He did not.” made, interpretation, and if his Moreover, testimony there was that though wrong, was reasonable and he “might penalty Lester told that the pleading was therefore misled into n a fine or might suspended be sentence or guilty, then, majority holds, prison [Emphasis be a term.” added.] guilty may be withdrawn. major- Thus, precise issue which the ity say considered, must be was before reasoning The trouble with this is that judge. district was further There Judge Morgan the record is clear that prosecutor that had just ex- this determination and ex- plained consequences himto all against pressly found the defendant. At plea. his hearing (and the conclusion of the first by implication, Judge second) after the Although felony- it is clear that Morgan specifically concluded as fol- argument misdemeanor by was considered lows: Judge Morgan, clear, it is also “The Court: it, As I questions any understand the continual as to state- right there is no absolute to with- to inducement and ments as the refer- plea, application draw a but prison sentence,- ences sought Morgan addressed to the discretion of the to ascertain whether the * * * n government Court, District any where the “offered him Court feels a defendant knew .promises the conse- inducements that or he-wou-lfl quence activity and there was no reason of receive such [co- ¡coercion compul- government]
circumstance of operation- fine, or with the a sion, any suspended-sentence the motion to dispo- withdraw or for any tried other defendant than sition individually and as MILLER, Mildred L. similar crime.” [sic] a goods, chattels Administratrix de- Moreover, shows the record Miller, de and credits of James W. only correct ceased, motion was Plaintiff-Appellant, nial to withdraw decision. On motion de- is on the guilty, the burden Incorporated, LINES, FARRELL Defend alleged. grounds prove the fendant ant-Appellee. Friedman v. 367, No. Docket 24066. denied, 1958, 696, 690, certiorari F.2d Appeals United States Court 1357, L.Ed. 345 U.S. 73 S.Ct. Second Circuit. 961, 73 rehearing denied, 3953, 345 U.S. 5-6, Argued Here, June 97 L.Ed. S.Ct. making any flatly prosecutor denied Aug. 16, 1957. Decided leniency and there representations as to contradictory We evidence. is no allegation conclusory in an only Lester’s his statement affidavit and get consideration full he “would told Certainly state- court.” from the carry enough
ment itself Moreover, proof. burden Morgan at a witness called him as
hearing Amend- his Fifth he claimed evi- privilege No refused. ment weight given
dentiary to the who, party the first affidavit of beyond very conclu- place, little asserts place, allegations, and, sory in the second allegations allow these refuses tested direct to be his whole case Indeed, law is cross-examination. judicial proceed- settled well ing is not available when witness cross- to be or refuses
cross-examination *8 his entire examined (3d Wigmore Ed. § be stricken. 1940). Brown Cf. 144-145, certiorari F.2d S.Ct. granted, 352 U.S.
152, 1 L.Ed.2d testify event, the refusal
In more case little Lester’s reduced
has allegations conclusory merely than Morgan rightly found which
insufficient. majority pur-
However, does not merits, with the but rules
port deal issues, only believe have thorough- quite already considered again, considered with the ly, must be exactly
certainty the same result.