Bruce v. United States

Decision Date27 April 1967
Docket NumberNo. 20146.,20146.
Citation126 US App. DC 336,379 F.2d 113
PartiesArthur BRUCE, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Joseph M. Snee, Washington, D.C., (appointed by this court), for appellant.

Mr. Theodore Wieseman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and Oscar Altshuler, Asst. U. S. Attys., were on the brief, for appellee. Mr. Edward T. Miller, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

This case involves claims of erroneous advice of the counsel (hereafter "defense counsel") who represented appellant at the time of his guilty plea and sentence.

On February 24, 1965, appellant, with co-defendants Jackson and Brodie, was indicted for robbery. Appellant pleaded guilty on April 14, and on June 18, was sentenced by District Judge Sirica to serve two to eight years. On June 28, 1965, appellant signed a pro se motion to arrest judgment. He alleged that his trial counsel was inexperienced in criminal matters and that he was advised at the last moment to change his plea to guilty with the understanding he would be put on probation "even though he wasent sic guilty of said charge but only a victim of circumstances." Judge Sirica appointed new counsel, who filed a motion to vacate sentence under 28 U.S.C. § 2255 and to withdraw the guilty plea under Rule 32(d), F.R.Crim.P. Instead of the grounds urged by petitioner, this attorney advanced these: Petitioner is not guilty of robbery and his plea was not understandingly entered due to the fact that he was erroneously advised by defense counsel of the elements required to establish robbery. Further, defense counsel did not comply with petitioner's instruction, given prior to sentencing, to withdraw the guilty plea. After a hearing, which will be described shortly, the District Judge entered findings of fact and conclusions of law and denied the motions.

Leave to appeal without prepayment of costs was granted by this court en banc.1 The attorney appointed by this court in effect contends that the denial of appellant's motions should be reversed because appellant's guilty plea, and failure to seek withdrawal prior to sentencing, were induced by erroneous advice of his counsel both (1) prior to the guilty plea, and (2) prior to sentence.

I

Before accepting the guilty pleas, Judge Sirica conducted an examination of the defendants. Jackson and Brodie, who were questioned prior to appellant, gave accounts of how the robbery took place that were similar in essentials. Both stated that the three had gotten together on the morning of the robbery and done some drinking. Jackson's version was that the three had first decided on a general plan to get some money with no particular source in mind and that they had later, when coming upon the High's store, decided to get the money there. Brodie made no mention of the earlier general plan, but said that they had all decided to rob the High's store just prior to entering it and that in carrying out the robbery, Jackson had wielded the gun, Brodie had taken the money and appellant had stood lookout.2 They agreed that a robbery was committed in which a shot was fired, and that afterwards all three ran out and divided the loot equally.

When appellant was questioned, he first stated that he had had no intent to rob the High's store prior to entering, that he had entered only to get cigarettes. Under close questioning by the judge as to why he was pleading guilty in light of his version, appellant changed his account and admitted he had gone into the store knowing that a robbery was going to take place and intending to participate in it.

At the § 2255 hearing appellant did not testify, but called to the stand his defense counsel, who had once represented appellant in a civil matter and accepted this assignment without any assurances as to fee. Defense counsel testified as follows: Appellant told counsel he had been drinking with co-defendants, and "there had been some discussion, whether drunken or otherwise, about, Let's go get some money." However neither this particular store nor the manner of getting money was "on their schedule" and appellant went into the High's store merely to get cigarettes. After Jackson used the gun, they ran out and appellant panicked and ran with them to an apartment where they divided the money, and "he knew then that he had done wrong." He later turned himself over to the police.

Defense counsel said he discussed the facts with appellant "as clearly as I could, and he seemed hazy about the immediate recollections prior to entering High's." At first counsel, knowing appellant "as a decent human being," believed "every bit of his story," and recommended that he go to trial. Later however counsel learned of the pistol shot, not divulged at first by appellant. "And I didn't know that they had, if not this store, some other plans in mind of let us say a mischievous nature." As defense counsel put the pieces together, his opinion changed. He discussed this with appellant, and the feasibility of a plea and possibility of partial restitution.

Defense counsel believed that appellant's involvement was traceable to the drinking. When asked if he was aware of the doubt whether appellant was capable of the specific intent required for robbery, he said he did not approach it on that basis. "Given all the facts, and the fact that there was some mischief planned, if not here, in another place," and that the profits were split one-third, then even though appellant did not know Jackson had a gun, "it was my opinion, and I told him so, whether it is wrong or not is for the Court to determine, that he was as guilty as they were." He amplified that he recommended the guilty plea when appellant, whom he considered honest, "told me they were up to mischief." "If you are up to mischief with three people, and you know mischief is going to take place, and you are sober or maybe half high when you said it, and somewhere along the line, if one of them goes out, and you know it is going to take place some time, and you are not the leader to start with, * * * when that takes place you are as guilty as the other guy."

A

Appellate counsel erects a structure of ineffective assistance of counsel resting on a foundation claim that appellant was given plainly erroneous advice by defense counsel, who considered that the crime of robbery had been established by appellant's presence when his companions decided to and did rob a store, and his sharing in the loot. Appellant's additional responses to the plea judge is explained substantially as follows — that it was because defendant was erroneously told by his counsel that he was guilty, that he answered "Yes" when the judge, after admonishing him to tell the truth and not to "dilly dally with this Court," asked him whether he knew before entering the High's store that a robbery was to take place there, and whether he had the intention of participating in that robbery. This background, argues counsel, shows that the guilty plea was not made "understandingly," i. e., understanding "the meaning of the charge, and what acts amount to being guilty of the charge,"3 and that due to ineffective assistance of counsel appellant has never had his day in court.

We begin our analysis by putting aside for the time being the answers given by appellant at the plea proceeding. In earlier cases it was said that a claim based on counsel's incompetence cannot prevail unless the trial has been rendered a mockery and a farce. These words are not to be taken literally, but rather as a vivid description of the principle that the accused has a heavy burden in showing requisite unfairness.4 Although the cases are rare and extraordinary, it appears that an accused may obtain relief under 28 U.S.C. § 2255 if he shows both that there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense either in the District Court5 or on appeal.6

It would not be fruitful to attempt further delineation of the applicable standard by reference to generalities, except perhaps to say that a more powerful showing of inadequacy is necessary to sustain a collateral attack than to warrant an order for new trial either by the District Court7 or by this court on direct appeal.8

Assuming for discussion that the requisite incompetence can be made out by showing an ignorance of critical doctrine discoverable with rudimentary preparation,9 we are not persuaded that this is such a case. The advice of defense counsel was not formulated, and cannot fairly now be supported, as a tactical estimate of a "high probability of conviction."10 But it is likewise plain that his advice that appellant's own statements showed him guilty was not based on the premise that he was guilty by virtue of mere presence and guilty knowledge, a premise that we have held unsound.11 The advice of defense counsel focused on the existence of a general plan to get some money by doing "mischief."

The fair import of counsel's testimony was, in short, that he understood it was agreed to rob someone, somewhere. That is how we take his questioned advice, particularly in view of appellant's failure, notwithstanding his burden, to define "mischief" further through either cross-examination of defense counsel or appellant's own testimony. Appellate counsel does not argue differently. His point is, apparently, that robbery requires the intent to take property from a particular victim, not merely a general intent to rob that remains unfocused.12

Without saying whether or to what extent we agree with the decisions we now cite, we note that there is authority to support the proposition that when a person plans with others to rob someone, somewhere,...

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