Robert E. Meyer v. United States , 424 F.2d 1181 ( 1970 )

MEHAFFY, Circuit Judge.

Robert E. Meyer appeals from an order of the United States District Court for the Eastern District of Missouri, Eastern Division, denying, after an evi-dentiary hearing, his motion to withdraw his plea of guilty to a charge of forcibly breaking into a United States Post Office at Webb City, Missouri. The grounds set forth in his motion and his assignments of error here are (1) that his plea was involuntary as a result of threats and coercion by federal agents; (2) that he signed the waiver under Rule 20 against his will; and (3) that he was inadequately represented by counsel. We affirm the judgment of the district court.

The original petition was filed pro se as a § 2255 motion on June 24, 1968 and was amended on August 13, 1968, setting out the allegations of facts with more particularity. Meyer petitioned the court for appointment of counsel and present counsel was appointed on October 29, 1968. The plenary evidentiary hearing was held on December 13, 1968.

On March 13, 1968, a complaint was filed in the Western District of Missouri (Kansas City) by W. L. Ruddell (sometimes spelled Rudell), a postal inspector at Kansas City, charging Meyer with forcibly breaking into a United States Post Office at Webb City, Missouri on or about October 23, 1964, with intent to commit larceny and other depredation therein in violation of 18 U.S.C. § 2115. The complaint was based on statements made to Ruddell by Richard W. Chris-tenson (sometimes spelled Christianson) and William A. Conway to the effect that Meyer forcibly broke into the Webb City Post Office with them and attempted to open the vault with an acetylene torch. Meyer was arrested in St. Louis, which is in the Eastern District of Missouri, on a Commissioner’s warrant on March 15, 1968, and was released the same day on a $1,000.00 recognizance bond returnable in the United States District Court, Western District of Missouri, Kansas City.

An information was filed March 27, 1968 in the Western District (Kansas City), charging Meyer with forcibly breaking into the Webb City Post Office, and on April 2, 1968, Meyer signed a consent to transfer the case to the Eastern District (St. Louis), where he had been arrested, for a plea of guilty and sentencing under Fed.R.Crim.P. 20.

Meyer was scheduled to be arraigned and enter his plea on April 12, 1968, but when he appeared in court without an attorney Judge Meredith appointed Mr. Tom P. Mendelson to represent him and continued the case to April 19, 1968. When Mr. Mendelson was notified of his appointment he contacted the Assistant District Attorney who was handling the case, Mr. Francis Murrell, who told him that Meyer had a somewhat extensive prior record and that he had signed a consent to transfer under Rule 20 and indicated a desire to plead guilty. Mur-rell said he had instructed Meyer to go to Mendelson’s office that day and talk with him about the case. However, Meyer and Mendelson did not get in touch with each other until the following week when they talked by telephone.

Mendelson testified that during the telephone conversation he told Meyer that although the Rule 20 consent for transfer which Meyer had signed contained a statement that he wished to plead guilty, nevertheless, he had a choice to plead guilty or not guilty. Mendelson further told him that if he pleaded guilty, he waived his right to trial in the Western District (Kansas City) and would be sentenced in the Eastern District (St. Louis). He explained to Meyer that the judge would inquire whether he understood the charge; whether his plea of guilty was a voluntary one; whether he did, in fact, commit the crime; whether there were any threats or promises made; etc. Meyer claims that there was no discussion concerning whether he was innocent or guilty, but Mendelson says that Meyer told him he had not committed the crime and Mendelson advised him that if he were innocent he should be able to establish his innocence and that he would have an opportunity to do so, but that he, Meyer, not Mendelson, knew whether he was in fact guilty and should make the decision. Mendelson told him that if he chose not to plead guilty before the court in the Eastern District that his file would then be retransferred to the Western District where he would stand trial, which is the procedure under Rule 20. Meyer replied that he had been told that if he were tried in the Western District he would probably be charged on two counts and could get up to a 15-year maximum sentence and that it was his intention and desire to plead guilty in the Eastern District. Mendelson asked him to think the matter over and let him know the morning of the hearing whether he wanted to plead guilty or not guilty.

Mendelson did not make any independent investigation, but he and Meyer talked about Meyer’s criminal record and he told Meyer he would probably be dealt with rather severely because of it.¹ He said Meyer did not appear to be “scared” or “frightened,” but, contrarily, exhibited some experience in these matters and appeared to be “most clairvoyant” as to just what the procedure was and what chances he had of achieving probation, and that he was pretty knowledgeable about the whole criminal process. Meyer told Mendelson that he had been hopeful that his plea of guilty would have been entered on the 12th when he appeared for arraignment without counsel because if it had been he “would have been back here faster than you can bat an eye.” Mendelson interpreted this to mean that Meyer thought that if he had been sentenced that day, he could have been successful in a proceeding to have the conviction and sentence set aside because the guilty plea was entered when he was without counsel. Mendelson said that Meyer told him that he had not been coerced or threatened and Meyer confirmed at the eviden-tiary hearing that he had made this statement to Mendelson during their telephone conversation prior to arraignment.

Meyer appeared in court with Mendel-son on April 19, 1968, signed a waiver stating that he had been advised of the nature of the charge against him and of his rights and that he thereby waived in open court prosecution by indictment and consented that the proceeding could be by information instead; and the court, after interrogating him and determining that his plea was guilty, also determined that it was voluntarily made, without any threats or promises, and that he understood that on his plea of guilty he could be sentenced to five years in the custody of the Attorney General and given a $1,000.00 fine.²

The court thereafter sentenced Meyer to five years in the custody of the Attorney General but granted a stay of execution of the judgment and sentence until April 29, 1968, and released him on his $1,000.00 bond then in force until that date. He was delivered to the St. Louis City Jail on April 29, and to the United States Penitentiary at Leavenworth, Kansas on May 6, 1968. The following month this action was filed.

Petitioner contends on this appeal that following the evidentiary hearing the judgment of conviction and sentence should have been set aside, that he should have been allowed to withdraw his guilty plea, and that a jury trial should have been granted to determine his guilt. He contends that the signing of the waiver under Fed.R.Crim.P. 20 and the subsequent plea of guilty were induced by threats and promises and were thus the product of unlawful coercion which entitles him to have his sentence vacated, citing Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); United States ex rel. McGrath v. LaVallee, 319 F.2d 308 (2nd Cir. 1963); and Euziere v. United States, 249 F.2d 293 (10th Cir. 1957), all of which are inapposite in that an eviden-tiary hearing was not held in any of them.

In the Machibroda case, supra, the question on appeal was whether a hearing should have been held to determine the truth of the allegations in the petition. The Supreme Court held that it was error for the district court to make findings on controverted issues of fact without notice to the petitioner and without a hearing. The facts here are entirely different from the facts in the Machibroda case. In this case, a full ev-identiary hearing was held. There was no misrepresentation concerning the length of sentence petitioner would receive if he pleaded guilty to this charge, as was the case in Machibroda. This is clearly shown from the record at the time petitioner entered his plea of guilty and was also admitted by him at the evi-dentiary hearing on his present petition. At the time of the plea on April 19, 1968, the following transpired:

“THE COURT: Before accepting your plea of guilty, you understand this information charges you with on October 23rd, 1964, at Webb City, Missouri, breaking into a United States Post Office with intent to commit a larceny ?

“DEFENDANT MEYER: Yes, Your Honor.

“THE COURT: You also understand that on your plea of guilty you may be sentenced to five years in the custody of the Attorney General and a fine of a thousand dollars ?

“DEFENDANT MEYER: Yes, Your Honor, I understand.”

Meyer stated at the evidentiary hearing that he remembered being informed by the judge that he could be sentenced to five years, and that no one ever promised him that he would receive less than five years on the charge. This was the length of sentence that he received, and the court did not fine him in any amount.

The second case cited by petitioner, United States ex rel. McGrath v. LaVal-lee, supra, was likewise reversed because no hearing was held to determine the validity of the petitioner’s charges. In the third case relied upon, Euziere v. United States, supra, there was also no hearing, but in that case which is factually dissimilar from this one, the court reversed because of statements made by the trial court, which is not the situation here.

All of the witnesses denied that they advised Meyer to plead guilty. Bruce C. Houdek, an Assistant District Attorney in Kansas City, said that he mentioned to W. L. Ruddell, a postal inspector, that if he had to try the case he would seek an indictment on both forcible entry of the Post Office at Webb City and damage to government property since he would have a better chance of conviction by charging both. Houdek did not mention this to Meyer but Ruddell did at the time he informed him that the indictment against him on a conspiracy charge had been dismissed. (Meyer had been indicted in Kansas City in March, 1967, along with twenty others on a charge of conspiracy to burglarize post offices, injure government property, and receive stolen stamps and post office property. Eighteen were convicted either through trials or guilty pleas and the conspiracy charge against Meyer was dismissed prior to the filing of the information here. See n.2.) Meyer was advised of his rights and signed a waiver prior to his conversation with Rud-dell. Ruddell told Meyer that the United States Attorney’s office in Kansas City had indicated that he would be prosecuted for the Webb City burglary and had said that two confederates of Meyer had told the government that Meyer had participated in the burglary, that he had stayed with them at the home of some people named McGee in Webb City, and that Mrs. Christenson, wife of one of the burglars, would testify that she had driven the three of them to the Post Office. Ruddell pointed out to Meyer that he could be charged with the burglary, with a possible sentence of five years, and also with destruction of government property (which carries a possible ten-year sentence). He also told Meyer that if he wished to consent to the filing of an information, possibly the United States Attorney’s office would agree not to prosecute on the offense of destroying government property, and he later confirmed this in a letter to Mr. R. R. Cul-lom (sometimes spelled Collum), a postal inspector in Kansas City, who conveyed the message to Meyer. No one from the District Attorney’s office ever talked to Meyer concerning this and neither Rud-dell nor Cullom ever recommended to him what plea he should enter.

As hereinbefore stated, Mendel-son, Meyer’s attorney, testified that he advised Meyer that he could either plead guilty or not guilty at the April 19 hearing even though he had signed a consent to transfer for the purpose of pleading guilty, that he knew whether he was innocent or guilty, and that if he were innocent and pleaded not guilty he would be given an opportunity to prove it.³

Meyer, however, chose to plead guilty rather than allow the case to be transferred to Kansas City, evidently because he felt that he would be convicted if tried there and might receive a longer sentence, which was possible if he were tried for both breaking and entering a United States Post Office and destroying government property. Meyer testified at the evidentiary hearing that Mendelson told him that if he “did anything but plead guilty the case would be transferred back to Kansas City,” and added “I didn’t want that because I was afraid of the indictment.” This indicates that even at the hearing he was still of the opinion that pleading guilty to the charge in St. Louis was preferable to having the case transferred to Kansas City where he could legitimately be charged on two counts. Even though he was told by the postal authorities that the district attorney in Kansas City had indicated that he would attempt to get an indictment on both counts, this does not amount to a threat or coercion since the district attorney has the right to proceed with any prosecution that is warranted under the factual situation.

In the recent case of Ford v. United States, 418 F.2d 855 (8th Cir. 1969), where the petitioner charged that he had been “threatened” that if he did not plead guilty to the federal charge against him, he would be turned over to state authorities, Judge Gibson said:

“A threat to prosecute under state law where the facts warrant prosecution should not be considered as coercive or intimidating. To constitute fear and coercion on a plea ‘Petitioner must show he was subjected to threats or promises of illegitimate action’; and fear of a greater sentence may induce a valid plea of guilty. (Citation omitted.) The state charge had already been filed and the State certainly has the right to proceed with any prosecution that is warranted under the factual situation.”

This court affirmed the action of the district court which found that Ford, after consulting with counsel appointed a week earlier, made a measured and deliberate choice and voluntarily entered a plea of guilty to the federal charge, and that it was a calculated move on his part to avoid what he considered a worse fate, i.e., his prosecution for additional offenses. Such was the case here.

Although this case does not present a true plea-bargaining situation, as no one at the District Attorney’s office talked with Meyer or urged or bargained with him to plead guilty, nevertheless, it should be pointed out that plea bargaining does not of itself render a guilty plea involuntary. In Ford v. United States, supra, we said:

“We first note without going into the merits and ethics of plea bargaining the practice of plea bargaining in and of itself does not make a plea of guilty involuntary or void. (Citing cases.)”

In United States ex rel. Rosa v. Fol-lette, 395 F.2d 721, 724 (2nd Cir. 1968), the court said:

“Indeed, if attended by proper safeguards and subjected to comprehensive examination, this court has perceived no bar — either in the words of the Constitution or in notions of fundamental fairness — to convictions based upon plea arrangements with the prosecutor. (Citation omitted.)” In Brown v. Beto, 377 F.2d 950, 956-

957 (5th Cir. 1967), the court said:

“Properly safeguarded plea discussions and plea agreements between an accused and a prosecutor are consistent with the fair administration of justice. They are a ‘pervasive practice. The great majority of criminal eases are disposed of by pleas of guilty, and a substantial number of these pleas are the result of prior dealings between the prosecutor and the defendant or his attorney’. * * *

“ * * * Prosecuting attorneys * * * traditionally have had broad authority to institute criminal charges and to evaluate the charges in terms of society’s interest in individual cases. When the prosecutor and the accused enter into an agreement their conflicting interests merge. And, with the aid of both counsel and judge, an accused is protected from improvident or involuntary agreements.

“Nathaniel Brown admitted his guilt without reservation. He acted on the advice of a competent attorney. His answers to the trial judge’s questions show that he acted voluntarily and with understanding of the nature of the charge and the extent of the possible punishment. If, as appears, the inducement was a reduction in the offense charged, the prosecutor fulfilled his promise. * * * The petitioner made a deliberate and measured choice: he traded his defenses for a lighter charge in the hope of a lighter sentence. And the trial judge satisfied himself, after a careful examination, that Brown understood his plea of guilty and pleaded guilty of his own free will. Brown is bound by his plea.”

Here, Meyer made a deliberate and measured choice, i.e., he pleaded guilty to one offense in the hope of getting a lighter sentence than if he were tried for two offenses, and he is bound by his plea.

Petitioner also relies for reversal on McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed. 418 (1969), where the Court held that the facts did not show that the court had complied with Fed.R.Crim.P. 11, which requires a determination that the guilty plea is truly voluntary and requires additionally the production of a complete record of the factors relevant to the voluntariness at the time the plea is entered. In McCarthy, the Court said that in addition to directing the judge to inquire into the defendant’s understanding of the nature of the charge and the consequences of his plea, Rule 11 also requires the judge to satisfy himself that there is a factual basis for the plea — that the conduct which the defendant admitted constituted the offense charged in the indictment or information or an offense included therein to which the defendant had pleaded guilty. Petitioner asserts that this was not done here, but we disagree. The judge personally addressed Meyer and inquired whether he understood that he was charged with breaking into a United States Post Office at Webb City, Missouri on October 23, 1964, with intent to commit larceny, and that on his plea of guilty he could be sentenced to five years in the custody of the Attorney General and fined $1,000.00, to which Meyer replied, “Yes, Your Honor.” Meyer is a high school graduate and has been previously convicted of the violation of a number of laws as set out in n. 1. His petitions, which he wrote personally with some assistance, indicate an unusual aptitude, for a layman, in drafting pleadings. With his education and his experience in court proceedings instituted against him, plus the explanation given to him by his attorney, it is inconceivable that he could have misunderstood the offense charged and the consequences of his plea of guilty. Also, we think the recitation of the evidence which the government had against Meyer with regard to his participation in the crime and his criminal record, which was made to the court by the United States District Attorney in Meyer’s presence and without his contradiction or objection, and his response to the court’s question as to whether the attorney’s statement was correct that it sounded “pretty much like it,” furnishes a sufficient factual basis for the plea to satisfy the requirements of McCarthy. The decision in McCarthy, however, was handed down on April 2, 1969, which was subsequent to the defendant’s plea, and is not applicable to this case since it is not to be applied retroactively. Halli-day v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969); Ford v. United States, supra; Cantrell v. United States, supra; Bennett v. United States, 413 F.2d 237, 242 (7th Cir. 1969). Therefore, petitioner’s reliance upon McCarthy is misplaced. United States v. Brown, 413 F.2d 878, 880 (9th Cir. 1969).

After discussing the McCarthy decision in the Cantrell case, supra, we said (413 F.2d at 632): “It is still the law that a plea of guilty, knowingly and understandably made, waives all non-jurisdictional defects and defenses and equates with an admission of guilt. (Citing cases.)” To the same effect see Ford v. United States, supra, and cases there cited.

In Robins v. United States, 413 F.2d 1290 (7th Cir. 1969), the Seventh Circuit held that the district court satisfied the requirements of Rule 11 in accepting defendant’s guilty plea where he had the benefit of consultation with his lawyer, notice as to the possible maximum penalty, and where the court, after observing his demeanor, concluded that his plea was voluntary.

The district court treated Meyer’s petition as a petition- under 18 U.S.C., Rule 32(d), Fed.R.Crim.P., to withdraw his guilty plea rather than one under 28 U.S.C. § 2255 attacking the sentence. Even though it is termed a § 2255 motion, petitioner may assert therein a right recognized by Rule 32(a). United States v. Behrens, 375 U.S. 162, 164-165, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963). And since the other relief which Meyer requested would necessarily have been granted if he were allowed to withdraw his guilty plea, his petition may be properly considered as a motion under Rule 32(d). United States v. Kent, 397 F.2d 446, 448 (7th Cir. 1968). The fact is that if a prisoner is entitled to the relief he prays for, it will be granted irrespective of the designation of the petition. United States v. Kent, supra.

Under Rule 32(d), a defendant has no right to withdraw his plea of guilty after sentence unless he has shown that a manifest injustice would result if such were not permitted.⁴ Sullivan v. United States, 348 U.S. 170, 174-175, 75 S.Ct. 182, 99 L.Ed. 210 (1954); Davenport v. United States, 122 U.S.App.D.C. 334, 353 F.2d 882, 885 (1965); Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436, 441 (D.C.Cir.1963), cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975 (1964).

In the Sullivan case, supra, 348 U.S. at 174-175, petitioner charged that he was induced to enter a plea of guilty by the statements of the government attorney, which led him to the mistaken belief that he would be placed on probation, but the Supreme Court held that the United States Attorney’s statements were factual and fair and that petitioner had failed to show any “manifest injustice.” In the Davenport case, supra, 353 F.2d at 885, it was held that no manifest injustice was shown where defendant was not told prior to entering a plea of guilty to a charge of assault with a deadly weapon that he could be charged with murder if the victim died within a year and a day as a result of the injury. In the Smith ease, supra, 324 F.2d at 441, it was held that the failure of counsel to advise the defendant that he would not be eligible for parole and counsel’s inference that he might be granted probation, which did not materialize, did not constitute manifest injustice which would entitle him to withdraw the plea of guilty.

The manifest injustice standard for allowing withdrawal of a guilty plea under Rule 32(d) provides the district court with greater latitude or leeway than the standard under 28 U.S.C. § 2255 relating to vacation of judgment and sentence. United States v. Kent, supra, 397 F.2d at 448. The good faith, credibility and weight of a defendant’s assertions and those made on his behalf in support of a motion under Rule 32(d) are issues for the trial court to decide. United States v. Washington, 341 F.2d 277, 281 (10th Cir. 1965), cert. denied, 382 U.S. 850, 86 S.Ct. 96, 15 L.Ed.2d 89 (1965); United States v. Nigro, 262 F.2d 783, 787 (3rd Cir. 1959).

In Oksanen v. United States, 362 F.2d 74, 78 (8th Cir. 1966), this court said:

“The showing of ‘manifest injustice’ as required by Rule 32(d) is directed solely at the setting aside of the judgment of conviction. Once the procedural bar of the oustanding judgment has been properly removed, as here by a showing of a lack of counsel at sentencing, the decision of whether the prior guilty plea may be withdrawn is addressed to the sound discretion of the trial court. ‘Manifest injustice’ plays no part in this decision. (Citing cases.)”

The burden of proof of manifest injustice is on the petitioner and the determination of this issue is within the sound discretion of the district court and will not be interfered with on appeal in the absence of abuse of discretion. Ford v. United States, supra; United States ex rel. Rosa v. Follette, supra, 395 F.2d at 726; Miles v. United States, 385 F.2d 541, 543 (10th Cir. 1967); Callaway v. United States, 367 F.2d 140, 142 (10th Cir. 1966).

We hold that there is abundant evidence to support the district court’s finding that Meyer’s guilty plea was voluntarily and understandingly made after he had been properly advised of his rights and the consequences of his plea, and that the district court did not abuse its discretion in refusing to permit him to withdraw it.

Neither is there any merit to Meyer's contention that he was prejudiced because he did not have counsel at the time he signed the consent to plead guilty and because counsel subsequently appointed did not render effective legal assistance. Of course, the right of a criminal defendant to counsel throughout all critical stages of the proceedings against him is undisputed. Rule 44(a), Fed.R.Crim.P., 18 U.S.C.; Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). However, the record shows that defendant here had adequate representation at all critical stages.

A private attorney in St. Louis, Mr. Godfrey, represented Meyer on the previously dismissed conspiracy charge relating to the conspiracy to rob post offices and dispose of stolen stamps and money orders, and Meyer contacted him concerning the complaint on the present charges when he was informed of it by Mr. R. R. Cullom, a postal inspector in St. Louis. Cullom testified that he first talked with Meyer by telephone and told him he had a message from Kansas City relative to certain court proceedings which might be instituted there and asked him to come to his office to discuss the matter. Meyer says Cullom read him a message which he had received from Mr. Ruddell, a postal inspector in Kansas City, about his conversation with the District Attorney’s office with regard to Meyer’s involvement in the Webb City burglary. Meyer then asked if it would be all right for his lawyer to come with him and Mr. Cullom said yes, it would, and an appointment was made for the following day. Neither Meyer nor his attorney made an appearance by 2:00 o’clock the next afternoon, however, and Cullom called the attorney, Mr. Godfrey, and asked him if he were coming. He said that he had an appointment with Mr. Meyer at 9:00 a. m. but Meyer did not show up and he was withdrawing from representing him. Meyer’s failure to keep the appointment with his private attorney indicates that he did not want counsel at that time and his actions are in accord with what he told Mr. Mendelson later that he was hoping the judge would accept his plea of guilty when he appeared without counsel so that he could use that as a ground for getting the conviction and sentence set aside. His scheme was thwarted, however, when the court refused to accept his plea but instead appointed counsel to represent him and continued the case to a later date.

A case directly in point with the present case on this issue is Nanney v. United States, 301 F.2d 57 (10th Cir. 1962). In that case the accused did not have an attorney when he signed a consent to have his case transferred from one district court to another for the purpose of pleading guilty under 18 U.S.C., Fed.R.Crim.P. 20. Several months after imposition of sentence and after he had commenced serving his term at Leavenworth, he filed a pro se motion to withdraw his guilty plea under Rule 32(d), Fed.R.Crim.P., asserting that “the consent to the transfer of the case was invalid for the reason that at the time of its execution appellant did not have the assistance of an attorney.” In answer to this contention, the court said (301 F.2d at 58):

“Of course, an accused is entitled to the aid of counsel throughout the trial proceedings. But it is not essential to the validity of a consent to transfer under Rule 20 that it be signed in open court. (Citing cases.) And such consent is not such an integrated part of the judicial proceedings that giving it without the aid of counsel in connection therewith constitutes a deprivation of any right protected by the Constitution which renders invalid subsequent proceedings in the court to which the case is transferred.”

Nanney further challenged the entry of the plea of guilty on the ground that he had suffered manifest injustice when his plea was entered because he was under the misapprehension that by signing the consent to the transfer of the case he waived his right to plead not guilty, to plead nolo contendere, or to proceed otherwise than plead guilty. The court noted that appellant was not a stranger to the courts and court proceedings; that he was twenty-four years of age at the time of entering the plea and that he had been in and out of jails since he was fifteen; that he made known his desire to have the case transferred to the court in Kansas for the purpose of pleading guilty; that he read the consent, said he understood it, and signed it; that it was apparent that at the time appellant entered his plea of guilty he did not desire to exercise the right to plead not guilty or nolo contendere, or to have the ease transferred back to Georgia for further proceedings; that he did not desire to proceed in any other way than to enter the plea of guilty; and that “the denial of the motion to withdraw the plea in these circumstances did not constitute an injustice which entitled appellant to have the judgment and sentence vacated in order that he might withdraw such plea.” (301 F.2d at 59.) Certainly, the same is true here.

In United States ex rel. Bennett v. Myers, 381 F.2d 814, 817 (3rd Cir. 1967), the court held that if there were any impropriety in an earlier proceeding in which the defendant appeared before the trial judge without counsel, the defendant waived it when he entered his plea of guilty voluntarily and with the advice of counsel.

In United States ex rel. Maisenhelder v. Rundle, 349 F.2d 592 (3rd Cir. 1965), the court held that a plea of guilty by the defendant at a preliminary hearing when he was without counsel did not result in prejudice where later, with the assistance of counsel, he entered a voluntary plea of guilty, stating at page 595 that “a voluntary and intentional plea of guilty on the advice of counsel constitutes a waiver to any objection of prior proceedings which may also include violation of defendant’s rights,” citing United States v. French, 274 F.2d 297 (7th Cir. 1960); and United States v. Kniess, 264 F.2d 353 (7th Cir. 1959).⁵

It appears to us that defendant in this case was not without counsel at any critical stage of the proceedings and that appointed counsel adequately advised him of his rights. A defendant is not guaranteed “effective” counsel, if, to be effective, his attorney must free him. The Sixth Amendment does not require for its satisfaction that the actions of counsel result in a favorable outcome. Kress v. United States, 411 F.2d 16, 22 (8th Cir. 1969); Evans v. United States, 346 F.2d 512, 514 (8th Cir. 1965); Taylor v. United States, 282 F.2d 16, 20 (8th Cir. 1960).

The judgment of the district court is affirmed.

1 . Meyer’s criminal record includes car theft, 1949 ($100.00 fine) ; writing bogus cheeks, 1952 (six months in city workhouse) ; tampering with an automobile, 1954 (four months in county jail) ; writing bogus checks, 1956 (two years); stealing over $50.00, 1958 (four years) ; writing bogus checks, 1961 (three years) ; and stealing over $50.00 (bad debt), 1964 (one year).

2 . The following are some excerpts from the proceedings before Judge Meredith on April 19, 1968, when Meyer entered his plea of guilty:

“THE COURT: How do you plead, Mr. Meyer, guilty or not guilty?

“DEFENDANT MEYER: I plead guilty.

“THE COURT: What?

“DEFENDANT MEYER: I plead guilty.

“THE COURT: Before accepting your plea of guilty, you understand this information charges you with on October 23rd, 1964, at Webb City, . Missouri, breaking into a United States Post Office with intent to commit a larceny? “DEFENDANT MEYER: Yes, Your Honor.

“THE COURT: You also understand that on your plea of guilty you may be sentenced to five years in the custody of the Attorney General and a fine of a thousand dollars ?

“DEFENDANT MEYER: Yes, Your Honor, I understand.

“THE COURT: Has anyone made any threats or promises to you in order to obtain this plea of guilty?

“DEFENDANT MEYER : No sir.

“THE COURT: It is a voluntary matter on your part?

“DEFENDANT MEYER: Yes, sir.

“THE COURT: And you did commit the offense?

“DEFENDANT MEYER: Yes, sir.

“THE COURT: The Court will accept your plea of guilty.

“MR. MURRELL: If Your Honor please, if you desire a statement at this time, I will make it. I think perhaps you will want to hear it now.

“THE COURT: Very well.

“MR. MURRELL: According to the report, the investigation report, that I have from the postal inspector at Kansas City, on the night of October 23rd, 1964, this defendant along with one, R. W. Christen-son, and W. A. Conway, both of whom I believe are presently under sentence, forcibly entered a government owned post office building in Webb City.

“They pried open a window in a corner of the building. They forced six of the interior doors, and they attacked the vault by breaking off the combination dials and burning two holes in the vault doors with an acetylene torch. However, they were unsuccessful in opening the vault, and there was no loss to the post office.

“This defendant is one of twenty who were indicted up in Kansas City in March of ’67. That indictment related to a conspiracy to burglarize post offices, injure government property, receive stolen stamps and stolen post office property, not only in Kansas City, Missouri, but elsewhere in the state. In that case there were eighteen convicted, either through trials or guilty pleas. And I understand a couple of the defendants testified for the government in that case. One of them was Mr. Christenson. The indictment was dismissed as to this defendant by our office up there. Then * * * this charge was filed against him, and he was arrested here in St. Louis on a Commissioner’s Warrant.

He sfc He H*

“Now, as to his history. He has a considerable criminal record. He is thirty-six years old. He is married. He has a high school education. To summarize his history * * * [see summary of convictions in n. 1],

“THE COURT: Mr. Meyer, is that a correct statement of your past criminal record ?

“DEPENDANT MEYER: It sounds pretty much like it, Your Honor.

“The COURT: Do you have anything to say to the Court before sentence is imposed?

“DEPENDANT MEYER: No, Your Honor.”

3 . It is not contended that Meyer did not know that the consent to plead guilty which he signed could not be used against him if he changed his plea to not guilty, but even if he did not know this there would be no reversible error. In Cantrell v. United States, 413 F.2d 629, 632 (8th Cir. 1969), we held that “where a defendant seeks to have his sentence vacated on the ground that he would not have pleaded guilty had he been aware that the confession was not admissible in evidence, the courts, including this one, have ruled that this does not render the guilty plea involuntary where the defendant has been informed of the charge against him, of the possible penalties, and of his rights at the time of entering his plea.” To the same effect see Semet v. United States, 369 F.2d 90, 92 (10th Cir. 1966); Snipe v. United States, 343 F.2d 25, 28 n.5 (9th Cir. 1965), cert. denied, 382 U.S. 960, 86 S.Ct. 440,15 L.Ed.2d 363 (1965); United States v. Wagner, 309 F.2d 7, 8 (6th Cir. 1962); United States v. French, 274 F.2d 297, 298-299 (7th Cir. 1960); United States v. Kniess, 264 F.2d 353, 357 (7th Cir. 1959); and Hall v. United States, 259 F.2d 430, 431, 432 (8th Cir. 1958), cert. denied, 359 U.S. 947, 79 S.Ct. 728, 3 L.Ed.2d 680 (1959).

4 . Rule 32(d), Fed.R.Crim.P., 18 U.S.C., provides:

“A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed of imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”

5 . See n.3.