United States v. Needles

• Decision Date: 11 January 1973
• Docket Number: Docket 72-1704.,No. 361,361
• Citation: 472 F.2d 652
• Parties: UNITED STATES of America, Appellee, v. Arthur NEEDLES, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

472 F.2d 652 (1973)

UNITED STATES of America, Appellee, v. Arthur NEEDLES, Appellant.

No. 361, Docket 72-1704.

United States Court of Appeals, Second Circuit.

Argued December 4, 1972.

Decided January 11, 1973.

Robert E. Goldman, New York City (Kuh, Goldman, Cooperman & Levitt, New York City, Steven H. Gifis, Newark, N. J., on the brief), for appellant.

Thomas R. Pattison, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. for Eastern District of New York, L. Kevin Sheridan, Asst. U. S. Atty., on the brief), for appellee.

Before LUMBARD, FEINBERG and MANSFIELD, Circuit Judges.

FEINBERG, Circuit Judge:

Arthur Needles appeals from a judgment of conviction entered upon a guilty plea in the United States District Court for the Eastern District of New York, Joseph C. Zavatt, J., to a charge of unregistered possession of a submachine gun, in violation of the Federal Gun Control Act of 1968, 26 U.S.C. § 5861(d). Prior to imposing a prison sentence of three years, the judge refused to allow appellant to withdraw his guilty plea. On this appeal, Needles claims that he should have been allowed to withdraw his guilty plea because of an inaccurate and unfair pre-sentence report, and that the sentence was improper because it was based upon that report. We affirm the judgment of conviction and imposition of sentence.

I

Needles entered his guilty plea before Judge Zavatt on December 29, 1971. At the time, appellant faced an indictment that charged him with 30 separate violations of the Gun Control Act. Appellant was represented by competent counsel, who apparently negotiated an understanding with the Assistant United States Attorney in charge of the case to move to dismiss the remaining 29 counts of the indictment after appellant pleaded guilty to, and was sentenced on, one. The judge was informed of that agreement in open court during the course of his questioning to determine, in the words of Fed.R.Crim.P. 11, whether the plea was "made voluntarily with understanding of the nature of the charge and the consequences of the plea" and whether there was "a factual basis for the plea." The record indicates that the judge properly had no doubt on either score. Accordingly, he accepted the plea to count six only of the indictment;¹ after sentence had been imposed some months later, the remaining counts were dismissed.

The scheduled date of sentence was April 10, 1972. Shortly before that day, counsel for Needles requested permission to see the pre-sentence report. At the start of the sentencing hearing, the judge declared a recess of "some twenty minutes" during which time the complete report was turned over to Needles and his counsel. After this interval, defendant's counsel reported that Needles had "instructed" him to move, pursuant to Fed.R.Crim.P. 32(d), for permission to withdraw the guilty plea because the report was "replete with statements which are contradictory to the truth and . . . highly derogatory of the defendant." The judge denied the motion. An extended colloquy followed regarding alleged inaccuracies in the pre-sentence report, which we leave for discussion below.

Appellant argues that the "surprise" disclosure of a highly prejudicial and inaccurate pre-sentence report entitled him to a "pre-sentence withdrawal" of a negotiated guilty plea, that a defendant who complains of untrue or unfair representations in a pre-sentence report concerning non-pleaded counts should be entitled to withdraw his plea of guilty, and that the trial judge abused his discretion in not giving careful consideration to the motion.

Appellant claims an absolute right under the circumstances to withdraw his guilty plea because of the allegedly inaccurate pre-sentence report. Such reports are often uncomplimentary to a defendant, though perhaps the occasions when the content truly "surprises" him are less than frequent. The thought immediately comes to mind that if such "surprises" were a legitimate ground for withdrawal of a guilty plea, an incentive would be created for not turning over pre-sentence reports, surely an unhappy result. Putting to one side this perhaps unworthy notion, one searches for a reasoned connection between an allegedly unfair pre-sentence report and the right to withdraw a guilty plea. That plea, after all, is the formal admission by a defendant in open court — and here with the advice of competent counsel — that he committed the crime. See McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L.Ed.2d 418 (1969). Of what relevance to that admission, then, is the discovery some months later that the sentencing judge has been furnished allegedly inaccurate derogatory information? Surely this has nothing to do with a defendant's innocence or guilt of the crime to which he has already pleaded. Nor would it affect the question whether he understood the charge against him when he admitted his guilt. See generally McCarthy v. United States, supra.

The only issue touching on the guilty plea as to which the alleged errors in the pre-sentence report might arguably be relevant is a defendant's understanding of the "consequences" of his plea when he made it. See Fed.R.Crim. P. 11. The principal "consequence," of course, is the possibility of imprisonment, but this was explained to appellant at the December 29 hearing. We realize that it is the probability of imprisonment, not merely the possibility, that is of crucial interest to a defendant. Nonetheless, "consequence" in this context does not mean a defendant's expectation of leniency, unless it was induced by a government promise, see United States v. Lester, 247 F.2d 496, 501 (2d Cir. 1957); cf. United States v. Norstrand Corp., 168 F.2d 481 (2d Cir. 1948); no such promise was made here by the prosecutor, the judge or anyone else. Cf. United States ex rel. La Fay v. Fritz, 455 F.2d 297 (2d Cir.), cert. denied, 407 U.S. 923, 92 S.Ct. 2471, 32 L. Ed.2d 809 (1972). Needles was told only that the Government would move to dismiss the remaining 29 counts of the indictment. This promise was kept at a substantial advantage to defendant, since his potential term of imprisonment was reduced considerably. Appellant's only claim of misrepresentation is that he believed that the prosecutor would make no recommendation as to sentence, that the information contained in the report could only have come from the prosecutor, and that this amounted to bad faith.² No such argument was made at the time to the district court. More significantly, no defendant can reasonably expect the probation office to refrain from seeking whatever information the prosecutor may have regarding the case then before the court or any other case involving that defendant. In fact, failure to so inquire or refusal to respond accurately would be a breach of duty. What appellant's argument is reduced to, in the last analysis, is that the information that led to a 30-count indictment should have been hidden from the sentencing judge and that appellant could reasonably have so expected. The argument falls of its own weight.

Appellant cites United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed. 2d 84 (1965), to support the proposition that he had an absolute right to withdraw his plea to one count if he was prepared to stand trial immediately on all 30 counts. In that case, which involved securities act violations, Doyle had pleaded guilty to one count of an 11-count indictment and had received a short prison sentence. On appeal, Doyle argued, inter alia, that the sentence was improper because before imposing it the judge had considered stock transactions covered by other counts of the indictment. In rejecting the contention, we said, id. at 721:

To argue that the presumption of innocence is affronted by considering unproved criminal activity is as implausible as taking the double jeopardy clause to bar reference to past convictions. . . . Indeed, Doyle\'s protests are almost ludicrous as applied to the present facts. The Government was ready to proceed on all the counts; simply by adhering to his former plea Doyle could have had a public trial where he could dispute all the Government\'s charges, and fully preserve the points dealt with in Part I of this opinion as well. It was he, on the advice of many highly sophisticated counsel, who avoided airing of the facts by a guilty plea.

Since appellant in this case said to Judge Zavatt on April 10, 1972 that he was willing to go to trial on all counts, he claims that Doyle required the judge to let him do so. The claim is unfounded. Just before the quoted language, we said in Doyle, id:

The narrowing of the indictment to a single count limits the maximum punishment the court can impose but not the scope of the court\'s consideration within the maximum. The dismissal of the other counts at the Government\'s request was not an adjudication against it on the merits, even though, as a result of the statute of limitations, no further prosecution can occur for the offenses there charged. The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it. Its synopsis should include the unfavorable, as well as the favorable, data, and few things could be so relevant as other criminal activity of the defendant, particularly activity closely related to the crime at hand.

We adhere to the proposition that "few things could be so relevant" in the sentencing of Needles "as other criminal activity . . . related to the crime at hand." See also Williams v. New York, 337 U.S. 241, 246-251, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Sweig, 454 F.2d 181, 183-184 (2d Cir. 1972); United States v. Cifarelli, 401 F.2d 512, 514 (2d Cir.) (per curiam), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968).

The final claim regarding the guilty plea is that the trial court abused its discretion by failing to give "careful" consideration to appellant's ...