D'Allesandro v. U.S., 797
| Decision Date | 01 May 1975 |
| Docket Number | No. 797,D,797 |
| Parties | Lawrence D'ALLESANDRO, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant. ocket 74-2682. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward R. Korman, Chief Asst. U. S. Atty. (David G. Trager, U. S. Atty., Eastern District of New York, and Stephen M. Behar, Asst. U. S. Atty., of counsel), for respondent-appellant.
Gerald L. Shargel, New York City (LaRossa, Shargel & Fischetti, New York City, of counsel), for petitioner-appellee.
Before FRIENDLY and FEINBERG, Circuit Judges, and LASKER, District Judge. *
Rule 35 of the Federal Rules of Criminal Procedure empowers a district judge to reduce a sentence within, but only within, 120 days after sentence was imposed. 1 Thereafter release from a stated term of imprisonment is in the hands of the Board of Parole, 18 U.S.C. § 4201 et seq. The United States contends that in this case the district judge has, in effect, taken over functions belonging to the Board. We agree, and reverse the judgment appealed from.
Appellee Lawrence D'Allesandro was one of six defendants charged in a multi-count indictment filed on August 16, 1972, in the District Court for the Eastern District of New York. D'Allesandro was named in three counts charging distribution of heroin in violation of 21 U.S.C. § 841(a)(1), a count charging conspiracy to do so, 21 U.S.C. § 846, and another count charging perjury before a federal grand jury in violation of 18 U.S.C. § 1623. D'Allesandro's mother, Lucy D'Allesandro, was named in the conspiracy count and was the subject of two perjury counts. On October 30, 1972, the case against the D'Allesandros and James Torturo was called for trial before Judge Weinstein; the D'Allesandros were represented by James LaRossa, an experienced attorney. After some preliminary sparring, a recess was taken. At the conclusion of this Mr. LaRossa advised the court that Lawrence desired to withdraw his plea of not guilty and to plead guilty to one of the heroin distribution counts and that he had made this decision as a result of certain promises which counsel desired to "spread out on the record". These were:
First, that the defendant Lucy D'Allesandra (sic) will be dismissed from this indictment, with prejudice, that all remaining counts in the indictment will be dismissed at the time of sentence, that a complaint that was filed within the past two weeks against the defendant before the Commissioner in this district, charging him with an attempt to influence the testimony of a witness in this case, that the complaint and any action thereunder, will be dismissed, with prejudice, against the defendant Lawrence D'Allesandro, Jr.
Assistant United States Attorney Behar indicated the Government's assent.
Judge Weinstein then addressed D'Allesandro personally, as required by F.R.Crim.P. 11. The interrogation of both D'Allesandro and his attorney was especially thorough, due no doubt to the judge's concern that D'Allesandro might be pleading guilty to a crime he had not committed in order to secure the dismissal of the counts against his mother. The judge insisted that D'Allesandro not only admit his guilt on the count to which he was pleading but that he tell in his own words what he had done. After asking both the prosecutor and defense counsel whether there was any further inquiry he should make, the judge thought of one, as follows:
The Court: Are you making this plea because you think you are guilty or because you want to get your mother off?
The Defendant D'Allesandro: Not because of that, because I am guilty.
The Court: Are you guilty or what?
The Defendant D'Allesandro: Yes, your Honor.
He then asked Mrs. D'Allesandro "may I see you up here?" The two lawyers made known that, apart from the plea bargain, the Government had planned to ask dismissal of the conspiracy count as against her. She said she did not understand why her son was pleading guilty. When the judge asked whether she had herself participated in or knew anything about the heroin sale to which Lawrence was pleading guilty, he received a negative response. The transcript continues:
How do you plead, guilty or not guilty?
Mrs. D'Allesandro: Guilty.
The Court: All right. I accept the plea.
Note will be taken of the surprising reference to Mrs. D'Allesandro rather than the defendant.
There ensued a discussion of the time necessary for working up a probation report and a tentative sentencing date was set. After the court took a bargained guilty plea from the remaining defendant, Torturo, there was an argument of a motion by the Government to remand Lawrence and Torturo pending sentencing. In the course of this Judge Weinstein noted
Lawrence D'Allesandro is here and he pleaded guilty and James Torturo is here and he pleaded guilty. . . .
The judge denied the motion but addressed the two defendants as stated in the margin. 2
On December 1, 1972, Judge Weinstein entered a judgment of conviction against D'Allesandro on the one count to which he had pleaded guilty and sentenced him to imprisonment for four years, a special parole term of three years and a fine of $10,000. The four other counts against him, the three counts against his mother, and the complaint charging him with threatening the life of a witness were dismissed. On April 10, 1973, the judge denied a timely motion under F.R.Crim.P. 35 to reduce the sentence.
On July 3, 1974, some 19 months after the imposition of sentence, D'Allesandro, from the federal prison at Danbury, Connecticut, wrote a letter to the judge, "with the hope and expectation that you treat it as a formal Motion 2255, to vacate my sentence, or offer me whatever relief the Court may deem necessary." He enclosed nine pages of the transcript of the proceedings on October 30, 1972, on which certain passages had been marked. He wished to bring to the judge's attention two points both based on the stenographer's insertion of "Mrs." in front of "D'Allesandro" in the above-quoted reply immediately after the court's reading of the count. His first point was "that I never plead guilty to the crime which I'm now incarcerated for." The second was that, despite the Government's promises for dismissal, "my Mother was made to plead guilty to the indictment as it applied to her"; since the Government "failed to uphold the promise that was made to me . . ., I now wish to withdraw my plea. . . ." The letter went on to complain that, despite a recommendation in favor of parole from the judge, a perfect institutional record, no past history of criminal behavior (a questionable assertion in view of what we can glean about the contents of the probation report from the transcript of the sentencing hearing), and a numerical score on the "offender characteristic (salient factor) guideline" (part of a program recently established in the Northeast Region of the United States Board of Parole to promote a more consistent and equitable exercise of parole boards' discretion, see 28 C.F.R., Ch. 1, Pt. 2, § 2.20 (1974)) suggesting a customary range of confinement of 16 to 20 months, he had been denied parole and had been "given a C.T.E. (continue to expiration)" of his term of imprisonment.
Promptly upon receiving D'Allesandro's letter and the accompanying papers, the judge entered an order instructing the clerk to treat them as a civil action to set aside the conviction and to serve a copy of the papers and the order upon the United States Attorney and Mr. LaRossa, and directing the United States Attorney to make an appropriate investigation and to report to the court in writing. This report, by the Assistant United States Attorney who had attended the taking of the plea on October 30, 1972, informed the court, among other things, that the statement "guilty" made at the taking of the plea was D'Allesandro's, not his mother's; that the records of the clerk so indicated; that the court reporter had informed the Assistant that his original stenographic notes did not include the reference to "Mrs." at that point; and that the Government had honored its promise in dismissing all charges against Lucy D'Allesandro. The court thereupon directed a hearing.
At the hearing on November 12, 1974, at which D'Allesandro was again represented by Mr. LaRossa, D'Allesandro called the court's attention to the same passage in the minutes to which he had referred in his letter. The transcript then proceeds as follows:
The Court: Yes. I know, but you remember what happened in this case I had had a long colloquy with you in order to determine whether you were guilty. And that long colloquy ended on Page 25 and you agreed through all that preliminary colloquy that you were guilty. I called your mother up because of your age and because she had been charged in a related matter. To ask her whether she understood what was going on here with her son.
Then, I turned to you and addressed you. I will read the count to you and I addressed you, not your mother.
Now, I don't know why the reporter has Mrs. D'Allesandro pleading guilty. Are you telling me you didn't say it?
The Defendant: In all honesty, I can't remember.
The Court: Where is the mother? Bring her up here and swear her in. Who is the reporter here?
Mr. Behar: On that date, your Honor, Mr. Karr started the proceeding, but I had spoken to both court reporters. I believe Mr. Miele was the court reporter.
The Court: Does he have his notes?
Mr. Behar: I spoke to Mr. Miele about his notes on the matter and he told me he reviewed his notes and his notes reflect neither a Mr. or Mrs. at...
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