UNITED STATES of America v. Roberto VALENCIANO, Appellant, and Marie Aguilar.
No. 73-1767.
United States Court of Appeals, Third Circuit.
Submitted March 15, 1974. Decided April 12, 1974.
585
Perhaps I should add that I cannot accept Wasson‘s argument that the railroad should bear the entire loss because the increasing demands of commerce over the years since 1857, when the bridge was originally constructed, have transformed a once lawful structure into an illegal obstruction to navigation. Assuming arguendo that the legal premise is valid, I am nevertheless satisfied that a private party may not, with impunity, simply knock the bridge down with an unseaworthy tow of barges.
John J. Barry, Richard S. Zackin, Asst. U. S. Attys., Newark, N. J., for appellee.
Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
In Moorhead v. United States, 456 F.2d 992 (3d Cir. 1972), we held that a federal defendant was entitled to an evidentiary hearing on an application pursuant to
We hold that the Moorhead rule persists with continuing vitality and that the contrary result reached in Masciola was the product of particular facts and limited contentions. We find that in denying a request for an evidentiary hearing in this case, the district court placed too broad an interpretation on Masciola. We vacate the judgment and remand for an evidentiary hearing.
Valenciano and his wife were indicted in the district courts of Florida and New Jersey on narcotics offenses,
The
MR. WILLIS: Your Honor, as to the indictment out of the Federal District of New Jersey, as to Count 1 of that indictment, I wish the Court to accept a plea of guilty to Count 2, your Honor. I have spoken to the defendant, Roberto Valenciano, concerning Count 2 of the indictment. At that time I brought with me to the West Side Federal Penitentiary Mr. Joseph Martinez, a Certified Court Reporter, to do the interpreting.
I questioned the defendant as to his guilt or innocence as to that charge. He professed his guilt, your Honor. No promises were made to the defendant by myself as to the sentence. I informed him that he could receive the maximum penalty under the law for that count. Furthermore, I believe, after a thorough discussion, he understands that no one, myself, the United States, can make any promises to him as to what the sentence is to be.
I believe that the plea of guilty, if accepted by the Court, is a voluntary plea based upon the willingness of the defendant to admit his guilt to the second count, your Honor.
I ask the Court to question the defendant as to his plea of guilty.
Assuming that his counsel‘s in-court declarations were translated to the appellant, he faces a formidable barrier in any evidentiary hearing to explain silence in the face of representations by his counsel that: “No promises were made to the defendant by myself as to the sentence.” Notwithstanding appellant‘s burden, Moorhead mandates a hearing. As therein stated by Judge Gibbons: “In the posture of the case before us there are several possibilities. Moorhead may be lying about what his attorneys told him. His attorneys may have told him what he alleges, and they may have been lying. His attorneys may have told him what he alleges and may in fact have had some arrangement with the prosecuting authorities. . . . [N]one of . . . [these] possibilities are conclusively negated by the files and records of the case. They depend upon matters outside the record.” 456 F.2d at 995.
We are also aware that appellant‘s burden at an evidentiary hearing will be virtually herculean when confronted with the following passage from his plea proceeding:
Q. Has anybody threatened you or promised you anything to induce you to plead guilty to Count 2?
A. No, your Honor.
Q. Has anybody promised you or made you understand what sentence you may receive? Is there any understanding with any judge or lawyer or prosecutor?
A. No promise.
Facially, this record colloquy would seem to be conclusive, but the brute fact is that Congress has mandated an evidentiary hearing in a
Where the voluntariness of the plea is attacked with an assertion that one‘s counsel or the prosecutor, or both, made an out-of-court arrangement or “proposition” as to the outcome of a sentence which differs from that pronounced by the court, an evidentiary hearing will ordinarily be necessary on a
Masciola did not require an evidentiary hearing because the alleged representation was no more than counsel‘s inaccurate prediction of the sentence. The court pointedly observed: “He does not indicate on what basis the assurances were made, nor does he allege any Government involvement in communicating to him the assurances. He also does not allege any understanding between him and the United States Attorney‘s office or the court. . . . An erroneous prediction of a sentence by a defendant‘s counsel does not render a guilty plea involuntary. Wellnitz v. Page, 420 F.2d 935 (10th Cir. 1970). Here, with no facts alleged to indicate that counsels’ assurances were any more than predictions based on counsels’ knowledge and experience the Wellnitz principle is applicable.” 469 F.2d at 1058-1059. A fundamental distinction exists between an allegation of counsel‘s erroneous prediction of sentence as in Masciola and an allegation of a bargained sentence as in Moorhead.
We therefore remand for an evidentiary hearing at which time the court will also have the opportunity of considering the possible application of Roberts v. United States, 491 F.2d 1236 (3d Cir. 1974).
The judgment of the district court will be vacated and the cause remanded for proceedings consistent with the foregoing.
ROSENN, Circuit Judge (concurring).
We must remand this case to the district court to vacate its judgment and permit the petitioner to plead anew to the indictment under our decision in Roberts v. United States, 491 F.2d 1236 (3d Cir. 1974). I therefore do not believe that the evidentiary hearing directed by the majority is necessary.
In Roberts v. United States, supra, petitioner contended that at the time he pleaded guilty to the offense of distribution of heroin,
In the instant case, Valenciano contends that he was never made aware, prior to the time he received a time sheet from the Record Office of the United States Penitentiary in Atlanta, Georgia, that a special parole term of three years was to attach to his sentence. The Government does not argue in its brief that Valenciano was told of the mandatory special parole term at the time of his plea, nor does the transcript of the
Should Valenciano again decide to plea guilty on remand, or should the district court in the future receive pleas of guilty in other cases, I believe that recurring attacks on the plea or sentence of the type addressed by the majority can be effectively avoided if an inquiry is first directed to counsel for the parties to ascertain if there has been plea bargaining. Judicial acceptance of the plea of guilty should be preceded by a statement of the court and inquiry as was suggested by this court in Paradiso v. United States, 482 F.2d 409 (3d Cir. 1973).
In connection with their
I believe that the procedure announced by this court in Paradiso adequately meets the problem of “the escalating numbers of cases complaining of aborted plea bargains, involuntary pleas or frustrated plea expectations.” 482 F.2d at 413. I am not convinced, moreover, that the additional instructions proposed by the majority will significantly aid the courts in avoiding attacks on pleas of guilty allegedly improperly induced.