United States v. John Kirby Jackson , 390 F.2d 130 ( 1968 )

SCHNACKENBERG, Circuit Judge.

John Kirby Jackson, defendant, has appealed from a judgment of the district court entered August 5, 1966, convicting him of a violation of 18 U.S.C. § 2421 [known as the White Slave Traffic Act], as charged in an indictment, under which he was sentenced to three years in prison.

It appears from the brief of defendant’s counsel filed in this court and also by the record of the district court that the case came on for trial on June 29, 1966 and a jury was in the process of being impaneled, whereupon there was a conference held between the presiding judge, Mr. Moellering, counsel for the government, and Charles Locker and Ralph Schelly, counsel for defendant. Thereafter, Mr. Locker made a motion requesting leave of court to withdraw defendant’s plea of not guilty “and enter a plea of guilty to the indictment and the matters charged.” The court asked defendant if he had heard Locker’s statement and if this was his desire, to which defendant replied “Yes, it is.” The following colloquy then occurred between the court and defendant:

Court: Before I accept your plea, I want to be sure you understand your constitutional rights in this matter. You know you have a right to a trial by a jury?

Defendant: Yes, I understand.

Court: And you have a right to be confronted with the witnesses against you and cross-examine them or have them cross-examined by your attorney?

Defendant: Yes.

Court: You have a right to testify or not, as you see fit; you cannot be compelled to give evidence against yourself, and if you fail to testify that fact cannot be held against you or considered as any evidence of your guilt. Do you understand that?

Defendant: Yes, I understand.

Court: Do you understand the charge against you here ? “

Defendant: Transporting—

Court: Well, you are charged in the indictment, on or about the 1st day of September, 1964, that you, John Kirby Jackson did knowingly transport in interstate commerce from Chicago, State of Illinois, to Gary, State of Indiana, in the Northern District of Indiana, two girls, Barbara Ann Dale and Margaret Bracey for the purposes of prostitution, debauchery and other immoral purposes in violation of the U. S. Code. Do you understand the charge ?

Defendant: I understand the charge.

Court: Do you know the penalty involved ?

Defendant: No, I don’t.

Court: The penalty is a maximum of five years imprisonment and a maximum of $5,000 fine, either or both. Do you understand ?

Defendant: Yes.

Court: Have any promises been made to you in order to induce you to change your plea ?

Defendant: Well, no — yes and no.

Court: What do you mean “yes and no” ?

Defendant: Well, I did bring them over, I can’t deny that—

Court: No, what I am asking now is, have any promises been made to you?

Defendant: If I tell the truth, that I did bring them over, which I did, it might be easier with me — to tell the truth, and I did bring them over. And if I did not lie about it — and I did bring them.

Court: Have you been made any promise of leniency?

Defendant: That I may be let off easy — if I tell the truth, it is much easier and to tell the truth.

Court: I want to know, Mr. Jackson —I have discussed this matter with your attorneys and I have made them no promises.

Defendant: He didn’t tell me you made any promises.

Court: Whether or not you get probation will depend on a lot of things which I do not yet know; but I am not making you any promises, nor have I made any promises.

Defendant: No, he did not make anything like that at all.

Court: No threats have been made against you in order to induce you to change your plea?

Defendant: No, no threat.

Court: Do I understand this plea of guilty is made voluntarily and understanding^ by you ?

Defendant: Yes, I talked it over back home with my wife and other friends and explained it to them, you know; and so that is that.

Court: By this plea are you telling me you did transport these girls across the State line?

Defendant: I did, and if they are here, it is just they are going to say I did, and it is two words against mine. So there is no use denying it.

Court: Let the record show the defendant enters a plea of guilty at this time and withdraws his plea of not guilty.

The Court now finds you guilty upon your plea. This matter will be referred to the probation officer, Mr. Jackson, for a presentence investigation report and after I have that report you will be brought back for disposition of your case. In the meantime, you will be released on the bond that has already been posted.

On August 5, 1966, at a hearing on his application for probation, in the presence of defendant as well as attorney Locker and government counsel, the court stated that he had read the probation report, which he said was very thorough, that he had considered defendant’s introduction to a life of prostitution of two girls who until then were certainly not prostitutes, and that he was not going to grant probation, which he then denied.

Thereupon in the presence of government counsel, attorney Locker said:

“ * * * It was my understanding at the pretrial conference * * * that this court would consider probation * * * I was shocked this morning when the United States attorney stepped forward and recommended a severe penalty, in light of the fact that Mr. Moellering said he would not object to probation, I am shocked on the court’s finding, in the light of the fact that this man’s background does qualify him, and the court stated to me that if there was nothing in the probation report, that probation probably would be granted.”

The court said:

“Counsel, I have never found a man guilty of contempt yet, but I will tell you very sincerely that you are on the verge of contempt. I never made any such promise. I said I would consider probation, as I do in every case, but I would make no promise whatsoever. This court never has and never intends to make a deal with anybody charged with a criminal offense. * * * ”

The court made it clear that he had never made a promise that any defendant would be placed on probation before he had seen the probation report. The court however did fix an appeal bond at $2500.

In this court defense counsel seems to argue that a plea of guilty was entered by defendant pursuant to some understanding with, or approval of, the district court, and that the alleged understanding included the release of defendant on probation. However, nothing in this record indicates that the court at any time said or did anything to support this contention. While there might have been discussions between the prosecuting attorney and defense counsel preceding the appearance of defendant before the court and the entry of his plea of guilty, there is not the slightest basis for an inference that the court was responsible for what, if anything, was agreed to in such discussions. The court’s neutral position required him to perform the judicial functions required of him in connection with this case. It did not encompass the procurement of pleas of guilty from defendants whose cases were before the court for trial. Quite obviously, if agreements were made for which the court has no responsibility, it follows that the judge remained unfettered in the performance of his duty in receiving a plea of guilty and administering justice based thereon. Any agreements between a prosecutor and defense counsel for a recommendation of leniency by the prosecutor, in return for a plea of guilty offered by defense counsel for his client, is not binding upon a judge, who is no party thereto. Otherwise the court would no longer be presiding impartially and performing in full his function to decide the questions arising in the case upon the facts properly established to his satisfaction, under the law as the judge knows it, but would be placed in a hypocritical situation of. doing the bidding of the attorneys before him whenever they were able to agree among themselves on the disposition of a criminal case. The administration of criminal justice is a matter of public judicial determination rather than the result of private negotiation. The judge in the case at bar performed the function which was his.

Quite properly the judge refrained from committing himself in advance on what disposition he would make of the case if a plea of guilty were entered. The judge specifically told the defendant that he had discussed the matter with defendant’s attorneys and that he had made no promises. Obviously this was corroborated by the defendant himself because he replied to the court: “He did not tell me you made any promises”. Furthermore the court, before the plea of not guilty was withdrawn, specifically told defendant that the question of whether he would get probation would depend on things which the court did not then know and he was not making any promises, to which defendant said to the court that his attorney “did not make anything like that at all”.

For the reasons hereinbefore set forth, the judgment from which this appeal was taken is affirmed.

Judgment affirmed.