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July 15, 1965


The opinion of the court was delivered by: KEECH

 Defendant-movant filed a motion under Title 28 United States Code, Section 2255, seeking to set aside his sentence entered on a plea of guilty. It is his contention that his plea of guilty was not voluntarily entered, but was induced by threats and promises communicated to him by his counsel as coming from the trial judge. The United States denies that there was any threat or promise or other coercion in connection with the entry of the plea of guilty, and asserts that the plea was freely and voluntarily entered by defendant-movant on the second day of his trial and after the principal witness for the Government had given damaging testimony against this defendant-movant and other defendants. Furthermore, the Government had identified on voir dire some forty-nine witnesses from different parts of the United States, whom the District Attorney anticipated calling in connection with his case.

 The trial court concluded that the record clearly showed that the plea was freely and voluntarily entered, pointing out, inter alia, in his opinion of February 25, 1965, movant's specific denials of any coercion at the time of the plea, and his silence at the time of sentencing. The trial court therefore denied the motion without a hearing. On appeal, the United States Court of Appeals for the District of Columbia Circuit held that there should have been an evidentiary hearing as to movant's contention and remanded for that purpose.

 Pursuant to this remand, a full hearing was held with counsel for the defendant-movant and counsel for the Government actively participating. Said movant testified and introduced testimony of two codefendants (one his son) and testimony of the trial judge. The Government called the two retained counsel *fn1" for the defendant-movant and the Assistant United States Attorney who tried the case, and introduced portions of transcripts and the criminal record of said movant, which were received in evidence by stipulation. At the conclusion of the hearing argument was made by respective counsel.

 The defendant-movant contends that the trial judge stated:

(1) that he wanted the case stopped;
(2) that in view of "The Turk's" testimony defendants would surely be convicted;
(3) that, if defendant were found guilty on more than one count, the court would impose consecutive sentences on all such counts;
(4) that there would be no bail pending appeal; and
(5) that the court would place defendant-movant's son, a codefendant, on probation. (Said movant contends further that the latter was not done.)

 Defendant-movant contends that these statements were conveyed to him by his counsel.

 This court sitting without a jury as the finder of facts has the duty of passing on the credibility of the various witnesses who have testified. It must therefore consider the demeanor of the witnesses on the stand, whether they appear to be truth-telling individuals, their interest in the outcome of the matter under consideration, any prejudice or bias for or against either side, and their opportunity of knowing the facts and circumstances about which they testify. In addition the court has before it these facts: that defendant-movant has a large number of convictions covering many years (as per a four-or-five-page transcript stipulated into evidence); that defendant-movant's son, codefendant, has a conviction of receiving stolen property growing out of a burglary charge in Pittsburgh; and that the third witness, also codefendant, has a criminal record. Furthermore, the testimony of defendant-movant and his codefendants was vague and indefinite. For example, they used terms such as "imagine", and the words "he" and "they" without specifying who was intended (i.e., District Attorney or Judge or Defense Counsel).

 The record indicates clearly that counsel for the defendant and codefendants were interested in negotiating for a practicable disposition of their twelve-count indictment. At first Government counsel was not interested in their proposal. The subject was broached again at the morning recess on the second day of trial, while counsel for defendants and Government counsel were in the chambers of the trial judge. Possible disposition was explored, the court not reconvening until after the luncheon period, at which time the plea of defendant-movant was entered.

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