United States v. Davis

SWAIM Circuit Judge.

This is an appeal from an order of the District Court denying, without a hearing, the defendant’s motion to vacate ■ , , oorc judgment filed pursuant to Section 2255, Title 28, United States Code. The motion challenged the validity of a j'udgment of conviction entered on a plea of guilty to an indictment charging the defendant with the violation of federal statutes regulating the importation, purchase and sale of narcotic drugs. The theory presented on this appeal, of those relied upon to support the motion, is that, because of the misrepresentation of defendant’s attorney as to the nature of the charge made in the indictment, the plea of guilty was not made voluntarily with an understanding of the nature of the charge.

The record discloses that at the time in question the defendant was charged in three different indictments, each alleging offenses in violation of the federal nar-cotie laws. One such indictment, No. 49-CR-514, related solely to the defendant and to offenses alleged to have oc-eurred in August 1949; another, No. 49-CR-717, charged the defendant, Mack Thomas and Fannie Mae Jones in the fourth count with conspiracy to violate certain of the federal narcotic statutes; and the third indictment involving the defendant, No. 49-CR-659, contained charges against the defendant and Thomas jointly and against the defendant individually. The offenses charged in this indictment were alleged to have occurred in October 1949. During that month the defendant was free on bail, awaiting trial on No. 49-CR-514. It is the judgment entered on his plea to indictment No. 49-CR-659 which concerns us here.

It appears from the record that the defendant originally entered a plea of not guilty to each of the several indictments, However, when the cases were called for trial on April 3, 1950, the defendant's attorney, who apparently was counsel of the defendant’s own choice, withdrew the Previous PIeas and entered pleas of guilty to the two indictments charging the defendant with substantive offenses. The Government then dismissed the co™^ *n ■^°- 49-CR-717 charging con-fira^ Sentences were imposed on April 14, and a motion to reduce sentence was heard and denied on April 24. 1

September 30, 1953, after his sen^ence *n 49-CR-514 had been served, the defendant filed his motion to vacate the judgment entered on his plea to indict-men^ 49-CR-659. His motion alleged ^hat permitted the plea of guilty to entered in reliance upon the represenNation of his attorney that the indictment charged him with a conspiracy and not w^h substantive offenses; that he was under a misconception as to the nature of charges against him; that he was thus misled and deceived by his attorney; that, therefore, his plea of guilty was not entered voluntarily, and accordingly the judgment is void,

Section 2255 of Title 28, United States Code, provides, in part:

“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. * * * ”

Thus, since the District Court denied the motion without a hearing and attendant findings of fact and conclusions 0f law, its order was proper only if the motion and record show conclusively that defendant was entitled to no relief, otherwise, the order must be set aside and the cause remanded for a hearing, United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. We must, of course, in considering the narrow question thus presented, accept as true the allegations of fact contained in the motion except as they may be contradicted by the record. United States v. Sturm, 7 Cir., 180 F.2d 413, 414.

It is not open to doubt that the defendant's motion alleges matters of a serious and substantial character. "Real notice of the true nature of the charge against him" is a right granted to the accused by the Constitution and it is indispensable to a valid plea. Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859. Where it fairly appears that a plea of guilty "was made under some mistake or misapprehension" the accused should be permitted to withdraw it. Bergen v. United States, 8 Cir., 145 F.2d 181, 187. This principle is clearly implied in Rule 11 of the Federal Rules of Criminal Procedure, 18 U.S.C.: "A defendant may plead * * * guilty * *. The court * * * shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. * * *" (Our emphasis.) This rule is stated in mandatory language and the court is not relieved of the duty which it imposes solely because the accused, as here, is represented by counsel of his choice. The rule is simply and concisely stated, and it makes no such exception. But see United States v. Shepherd, D.C., 108 F.Supp. 721, 723. Of course, a failure to make the determination required would of itself be reversible error only in the absence of a showing that in fact the defendant understood the nature of the charges to which his plea was entered. That is the knowledge which the Constitution requires that the accused have when he enters a plea of guilty. But, of course, we may not presume such knowledge solely from the fact that there was representation by counsel where, as here, the defendant alleges that he was misled by false statements of his counsel. Cf. Howard v. United States, 6 Cir., 186 F.2d 778. Our problem is to determine whether his allegations are "conclusively" refuted by the record.

The record contains a transcript of the proceedings beginning April 3, 1950, when the defendant pleaded guilty. It does not show that the indictment was read aloud nor the substance of its contents stated in the defendant's presence. He was not asked whether he understood with what he was charged, nor did the court make an inquiry of any kind to ascertain whether the defendant was correctly advised of the nature of the indictment against him.

There were some references by the court and the attorneys as to the true content of the indictment on April 14, eleven days later, when sentence was im~ posed, and again on April 24, when the motion for reduction of sentence was heard. On the first occasion the Government attorney, during a colloquy with the court, stated several times that the defendant had "sold" heroin to a narcotics agent. He also outlined the punishment for "possession and sale" and "concealment and transportation." Later, in arguing for a reduction of sentence, the defendant's attorney recalled the punishment which the court had imposed for "selling" narcotics. These statements were not directed to the defendant, and we cannot say that the fact that they were made in his presence conclusively shows that he understood their significance. This is particularly true in view of the misinformation which he contends, and which we must assume, was previously given to him by his counsel.

We do not mean to say that a District Court must in every case follow a particular ritual in order to comply with Rule 11. A brief discussion with the defendant regarding the nature of the charges may normally be the simplest and most direct means of ascertaining the state of his knowledge. Or there may be other circumstances from which it is evident that the defendant has the requisite understanding. See Michener v. United States, 8 Cir., 181 F.2d 911, 918; United States v. Denniston, 2 Cir., 89 F.2d 696, 698, 110 A.L.R. 1296. Whatever the means employed, a fair compliance with the Supreme Court rule would insure that the defendant has the knowledge and understanding essential to a valid plea. Because the record here does not conclusively show that he had this necessary understanding the defendant is entitled to a hearing on his motion, and an opportunity to be present and to present evidence, if any, to support the alie-gations of his motion. At the conclusion of such a hearing on a substantial factual issue, such as we have here, the District Court must make findings of fact and state its conclusions of law. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232.

Prentice H. Marshall, Esq., a member of the Chicago bar, was appointed to represent the defendant in this court, and he has ably presented the defendant’s case both in written briefs and in oral argument. We wish to express the court’s appreciation for his valuable assistance.

„ . The order appealed from is reversed and the cause is remanded for proceedings not inconsistent with this opinion.