*1 daughters, Grath, A en- supra, fact. their who could not then alter that can judgment country, is this she ex- ter because a divided affirmed —not par there, upon binding upon pected the the reside conclusive —and all upon further facts she intended at that ties as if the concurrence rendered every judges upon in participating times to maintain her residence cago Chi- of all re- question where and her in Durant she husband case. involved the sided, where he had business Co., 7 v. Essex U.S. Wall. property the case where involved in this L.Ed. 154. had been accumulated that Moreover, noth we think there States, a she did return the United ing language of the Guessefeldt the Special Inquiry specifically Board 0f way upon impinges any the case which returning found that jca Amer- she was The Cus conclusion. soundness of this abroad; temporary from a visit original attempts todian read into our g^g voluntarily relinquished had never “residence decision a declaration that her residence in the United States ar synonymous “domicile” is gues with that she was entitled to enter this coun- language quoted the the try returning The «as a resident.” opinion different fixes Guessefeldt Depart- Naturalization of Service the argument fallacy in this The standard. ment of Justice held that ampiy evidence the in no wise lies in fact that this court the supported this conclusion. “resi confused terms “domicile” only trial court not considered all equivalents. them as dence” or treated but, pointed out, evidence as we have all domicile, Indeed, no made mention of we bearing upon ques- other evidence only upon question passed of but residence, applies tion all of which ^ plaintiff was within” whether “resident adequately findings supports and conclusions, its meaning Japan stat of the within „ upon , , con ute. issue we resolved This . . affirmed, Judgment sufficiency aver sideration of the complaint, have now ments which of the findings, Indeed, proved. in its been court, all
the trial after consideration evidence, specifically that found Japan.
plaintiff not resident was doing support, in addition so it had for proof com of the the averments amongst testimony of, plaint, oral others, con who most witness was UNITED v. STATES DAVIS. being cerned, advantage able with No. 11025. upon manner the witness her to observe Appeals, Court of United States bearing upon stand and other factors all „ , her ... Seventh Circuit. credibility. The determination 195 4. plaintiff not the District Court grounded Japan was “resident within” presented, upon specific includ facts ing plaintiff resi the intention only by exemplified her dence as by her acts. but also own statements that, pointed under the out Wejoriginally stay complaint, her averments that, under Japan to the fact was due customs, Japanese either she or unique compelled to return
her husband pro arrange, with the aid there match-makers, marriages for fessional *2 Marshall, Chicago, Ill.,
Prentice H.
appellant.
for
Tieken,
Cohen,
Robert
Irwin N.
U. S.
Attys.,
Lulinski,
John Peter
Anna R.
Ill.,
Chicago,
Lavin,
Attys.,
S.
trial on
attorney,
Asst. U.
the defendant's
appellee.
apparently
who
was counsel
choice,
of the defendant’s
withdrew
own
Judge,
MAJOR, Chief
Before
pleas
and entered
Previous PIeas
SCHNACKENBERG,
*3
SWAIM
Cir-
guilty
charging
to the two indictments
Judges
cuit
the defendant with
offenses.
substantive
The Government
then
the
dismissed
Judge.
SWAIM Circuit
charging
*n
co™^
49-CR-717
con-
appeal
This
an
an order
from
n ^°-
imposed
Sentences were
denying,
a hear-
District
without
Court
fira^ 14,
April
and a motion to reduce sentence
ing,
vacate
the
motion to
defendant’s
n
,
was heard
denied on
24.
oorc
2255,
judgment
pursuant
filed
to Section
September 30, 1953, after his sen
28,
The mo-
Title
States Code.
United
served,
*n
^ence
49-CR-514 had been
the
challenged
j'udg-
validity
tion
the
of a
defendant filed his motion to vacate the
plea of
ment of conviction entered on a
judgment
plea
entered
his
indict-
to
guilty
charging the
an indictment
de-
alleged
men^ 49-CR-659.
motion
His
violation of federal
fendant with the
permitted
guilty
^hat
the
of
pur-
regulating
importation,
statutes
the
upon
represen
entered in reliance
the
drugs.
chase
of narcotic
and sale
of
Nation his
charged
the
indictment
theory
appeal,
presented
on this
those
conspiracy
him with a
and not
that,
upon
motion,
support
relied
the
offenses;
w^h substantive
that he was
misrepresentation of de-
because of the
misconception
under a
as to the nature of
attorney as
the nature of
fendant’s
charges against him;
that he was
charge
indictment,
the
plea
in the
the
by
attorney;
thus misled and deceived
his
voluntarily
was not made
that, therefore,
his
was not
with an
of the nature of
voluntarily,
accordingly
entered
the
charge.
the
void,
judgment is
The record
that at
discloses
the time
Section 2255 of
charged
Title
question
Unit
the defendant was
Code, provides,
part:
ed States
indictments,
alleging
three different
each
offenses
in violation
the federal nar-
“Unless the motion and the files
indictment,
cotie laws.
such
One
No.
conclusively
and records of the case
solely
49-CR-514, related
defend-
prisoner
the
show that the
is entitled to
alleged
ant and to offenses
to have oc-
relief,
no
the
shall
cause no-
August 1949; another,
eurred in
No. 49-
upon
tice thereof to be served
charged
CR-717,
defendant,
Mack
grant
Attorney,
United States
Thomas and
prompt hearing
Fannie
thereon,
Mae Jones
determine
fourth
findings
count with
to violate
issues
and make
of fact
statutes;
certain of the federal narcotic
respect
conclusions
law with
”
involving
and
defendant,
third
indictment
thereto.
49-CR-659,
No.
contained Thus, since the District Court denied
charges against the defendant and Thom-
hearing
the motion without a
and at
jointly
against
as
dividually.
the defendant in-
findings
tendant
of fact and conclusions
charged
offenses
in this
law,
proper only
its
0f
order was
if the
alleged
indictment were
to have occurred
conclusively
motion
record show
During
in October
1949.
month
relief,
defendant was entitled to no
awaiting
bail,
defendant
free on
otherwise,
the order must be set aside
judg-
trial on No. 49-CR-514.
It is the
hearing,
and the cause remanded for a
ment entered on
Hayman,
States v.
United
342 U.S.
No. 49-CR-659 which concerns us here.
must,
72 S.Ct.
96 L.Ed. 232. We
course,
considering
appears
It
from the
record that
the of
the narrow
originally
presented,
question
accept
entered a
thus
as true
indictments,
allegations
to each of the
several
fact contained in However,
except
may
cases
when the
were called for motion
be contradict
read aloud nor the substance of its con-
by
ed
the record. United States v.
presence.
Sturm, Cir.,
tents stated in the defendant's
180 F.2d
414.
He was not asked whether he understood
It is not
to doubt that the
charged,
with what he was
nor did the
alleges
defendant's motion
matters of a
inquiry
any
court make an
kind to as-
serious and substantial character. "Real
certain whether the defendant was cor-
notice of the true nature of the
rectly advised of the nature of the in-
against
right granted
him" is a
to the
against
dictment
him.
by
accused
the Constitution and it is in
There were some references
dispensable
O'Grady,
plea.
to a valid
Smith v.
attorneys
court and the
as to the true
*4
329, 334,
312 U.S.
61 S.Ct.
April 14,
content of the indictment on
fairly appears
vis. *6 indicted, years $2,000. five “The Court: Yes. Thomas, 284, “As to 49 Gassaway: 284, on Cr two “Mr. As to 49 Cr years on the guilty To run indictment. Mack there a of as to consecutively. Thomas. right. “The Court: That is Davis, 514, “As to in 49 Cr two years, consecutively to run with 49 Gassaway: Now, to 49 “Mr. as guilty $2,000 659, Cr fine. 717, Cr there is of a to Fannie Mae Jones. Gassaway: “Mr. If the Court right. please, making “The Court: That is I am a motion at this time that those sentences run con- Piragine: “Mr. That is what I ' currently. said. “The Court: No. Gassaway: “Mr. I not under- did say Piragine: They stand I him to that. understood “Mr. are well peddlers, there was a of entered as known been in the business years. to all. for Piragine: 514, Gassaway: talking “Mr. 49 Cr “Mr. I am August Davis, 23,1949, pur- Fred on the Court now. warrant, to a search suant defend- “The Court: No. n antwas capsules searched, and19 of «Mr. Motion for sta capsules heroin 18 cocaine of days. of execution for about fifteen , were seized!. T -n Astay The Court: I will it- 11, 1949, “49 Cr October ' ' ^ ^ ^ case, while on bond the former my “Defendant Davis: What Mack defendant Davis and Thomas sentence. agent grains sold 30 to a narcotic years, “The Court: Seven $2,- $30; heroin for on Octo- 000.” 20, 1949, Chicago, ber the defend- agent appears ants sold to 31 It further a narcotic that on * grains heroin for Attorney Assistant $30. District Pira- gine, Attorney Gassaway, de- indicate not in the that defendant was fendant, open possession were in court when the fol- normal faculties of lowing seeing. proceedings hearing and con occurred. He makes no tention that formal educa for want of Gassaway: April 14, “Mr. On English tion or an defendants, Mack Thomas language, he could understand what not Davis, and Fred sentenced were place presence. took in court in his De period years one and a fine five participat personally fendant at one time period years, and another of two proceedings asking ined selling narcotics. as to the re extent of the sentence and making “At this time I a mo- am directly the court s cemn® was seven sentence, tion to reduce and ask years- permitted sentences be run con- Defendant’s ad counsel in this court currently consecutively instead of proceed mits that defendant on does your Honor stated. theory that he never consented to Piragine: “Mr. The Government entry of a char«e- Plea objects any reduction in view of alleged misrepresentation by de past record these defendants narcotics, fendant’s is said to consist of an and their activities in incorrect statement that a They peddlers. are old being charge, a was However, entered to give “The Court: did What I presence defendant’s
them, years five ? , colloquy court the between counsel and, Piragine: years Mr. Five , „ , clearly the court indicated that the court nn J , , fine, years. and two .. $2000.00 inflicting punishment a under two my opinion, Court. charges, being different one of them give anyone they years, I five deserve charge pos Cr. session, transportation concealment and Gassaway: asking “Mr. I am cocaine, heroin and and the other on concurrently. run indictment 49 Cr. 659 on a of sales *7 and concealment of heroin. The court years “The Court: Five total? was informed attorney the assistant district to Piragine: No, years “Mr. seven punishment maximum to the total. That is where there were eharges' on each of these The court four about indictments. thereupon separate announced sentences Yes, The Court: I remember. years 0f defendant five and $2000 ’ No. Motion denied. years 49 Cr. 659 and two and ground fine on indictment 49 Cr. di $2000 The for defendant’s motion to recting that the sentences run consecu guilty vacate is that defendant’s tively. attorney Defendant’s then moved assumption was entered on a mistaken concurrently, that the sentences run charged, as to the nature of the crime court, by which motion was denied assumption the which the result was of ad- lawyer plead- vice from his he days that was Ten later defendant and his at ing guilty conspiracy to and not to a torney open court, were in at completed offense, whereby substantive attorney which time defendant’s made a entering he was deceived and misled into motion to reduce the sentences and to guilty by lawyer his concurrently and the permit them to run instead involuntarily. was entered consecutively. The motion was de nied. question pro- There can be no that the eeedings quoted occurred, peni- above Defendant then was sent to that the present tentiary, on each occasion defendant was where he is now confined. On person by competent 25, 1953, September approximately as well as coun- three nothing years sentence, own set of his choice. and five after There is his months motion the now before the he swore to the court to subscribed and motion points to make “a failure out that motion That under now consideration. required of it would determination learned the he or how reveal does not that, only in the ab attorney reversible error de- self be says, his own as he showing the de in fact of a that sence ceived him. of the nature fendant understood place in proceedings took which his was wllieh char^es The absence, Plea partid- presence and were defendant’s enterfd' not reveal an record before us does attorney by incon- pated are his own presence, aof rather the but that statement with defendant’s sistent showing un fact the defendant that in by into be- his he was deceived lieving charges to derstood the nature of pleading he was It shows which his were entered. P^as conspiracy only. His statement conclusively. unsupported state His & charge to understood was the what he years later made for the first time ment- pleading he was which (after to reduce he motions had proceedings purport in court of the clear run the sentences and have the sentences concurrently, absolutely presence incon- in his are denied), that which were There is false. of them sistent. One thought pleading be he was the record reason believe is no afterthought. only conspiracy is an proceedings defendant has which feeble as' his this record> court is false. be filed caused to thought pleading sertion that he guilty he pleas guilty were entered his Before only conspiracy away fades charge conspiracy had been dis- morning rays does the dew in the warm presence. as well in his Counsel missed of the sun- That conclusively the record bein^ so> punishment court discussed the as the he is entitled to shows that pos- provided statute for the crimes no relief 011his motion and the action concealment, transportation session, overruling of the District Court in course, Of heroin cocaine. sales of motion sbould be affirm Pr°Per punishment for was not ed- reasoning of the mentioned. The even Denniston, Cir., In United v. States majority opinion seems to the ef- be to 698, 110 page 89 F.2d at A.L.R. having asserted feet that the court said: in motion that he did not understand guil- pleading person actually to which he was “If an indicted hearing ty, present he is entitled to a such a court with his at- because, despite here, torney competent repre- the record motion who is may telling possible that he now be it is sent him does so under circum- majority opinion fairly the truth. refers stances which attorney speaks show *8 Rule of the Federal Rules Crimi- for his who client may plead being “A Procedure: nal understands what is done and * * * * * import acquiesces *. The and who its accept shall not determining enters a with- nothing him, but a out first slavish ad- voluntarily with herence to archaism could underlie holding ”, that the nature was void.”