738 F.2d 196 (7th Cir. 1984), 82-2656, United States v. Frye

Docket Nº:82-2656.
Citation:738 F.2d 196
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kay Lynn FRYE, Defendant-Appellant.
Case Date:June 21, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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738 F.2d 196 (7th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,


Kay Lynn FRYE, Defendant-Appellant.

No. 82-2656.

United States Court of Appeals, Seventh Circuit

June 21, 1984

        Argued Feb. 21, 1984.

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        Michael J. O'Leary, Asst. U.S. Atty., Gerald D. Fines, U.S. Atty., Peoria, Ill., for plaintiff-appellee.

        John H. Bisbee, Bisbee & Nagan, Macomb, Ill., for defendant-appellant.

        Before ESCHBACH and FLAUM, Circuit Judges, and MARSHALL, District Judge. [*]

        FLAUM, Circuit Judge.

        This appeal stems from the defendant's guilty plea and subsequent conviction in federal court on a charge of bank larceny. Approximately one year after her conviction, the defendant filed a motion for relief under 28 U.S.C. Sec. 2255 (1982), claiming that her guilty plea was invalid because it was not made knowingly and intelligently. The district court dismissed her section 2255 motion without an evidentiary hearing, and the defendant appealed. We reverse the district court and remand for an evidentiary hearing on the question of whether the defendant's guilty plea was entered knowingly and intelligently.


        The defendant's husband, Barry Frye, was the owner and operator of Frye Auto Sales in Vermont, Illinois. In 1979, Frye Auto Sales began experiencing serious financial difficulty. Beginning in 1980, the defendant, her husband, and two others allegedly participated in a "check-kiting" scheme. This essentially involved transferring money between accounts in four different banks over a period of time, in order to create the false appearance of having sufficient money to meet the financial obligations of Frye Auto Sales. The result of this scheme was that one of the banks was left with eleven checks that were not honored upon presentation for payment, and it suffered a loss of approximately $134,000. Although the record in this case indicates that Barry Frye was the principal perpetrator of the check-kiting scheme, the defendant has admitted that she signed some of the checks that later were used to transfer money between accounts.

        In November 1980, Barry Frye was interviewed by several FBI agents about his banking practices. Shortly thereafter, he, the defendant, and Joylene Frye, Barry's former wife and an employee of Frye Auto Sales, consulted a Peoria attorney about possible criminal charges against them. This attorney agreed to represent all of them, and the three Fryes met with him twice more during the following two months. On January 30, 1981, the defendant, on her attorney's advice, submitted to an interview by FBI agents without the presence of counsel. In April 1981, the Fryes again met with their attorney. At this time, the attorney told the defendant that the FBI did not consider her statements to be exculpatory, as she had hoped. He advised the defendant to plead guilty to bank larceny and told her he had arranged for her to receive a sentence of probation and restitution.

        On June 18, 1981, the defendant waived indictment and pleaded guilty in federal court in Peoria to a one-count information charging her with violating 18 U.S.C. Secs. 2 and 2113(b). 1 On July 28, 1981, the defendant

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was sentenced to a term of three years probation and was ordered to pay restitution in the approximate amount of $43,000. 2

        On August 31, 1982, the defendant filed a motion in federal court in Peoria to vacate her conviction under section 2255. Several days later she filed another motion seeking leave of the court to take the deposition of the attorney who had represented her before and during her plea proceedings. The district court scheduled a hearing for September 24, 1982, on the defendant's section 2255 motion, directed the United States Attorney to file an answer to that motion, and informed the defendant that it would rule on the motion to take her former attorney's deposition at the September 24 hearing. Shortly thereafter, the defendant filed an amendment to her section 2255 motion, alleging that during her plea proceedings the trial court failed to advise her of her right to the effective assistance of counsel and her right to representation separate from that accorded her codefendant as is required by Rule 44(c) of the Federal Rules of Criminal Procedure. The government then filed its answer opposing the defendant's section 2255 motion.

        On September 24, 1982, proceedings on the defendant's section 2255 motion were held before the same trial judge who had accepted the defendant's guilty plea. The proceedings were non-evidentiary in nature. The court heard the arguments of both parties, decided that an evidentiary hearing was not necessary to its ruling on the defendant's section 2255 motion, and dismissed the defendant's motion. This appeal followed.


        The primary issue on this appeal is whether the district court erred in dismissing the defendant's section 2255 motion without any evidentiary hearing. Section 2255 requires a hearing, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Although section 2255 does not state explicitly that the required hearing must be evidentiary in nature, it has been interpreted widely as requiring an evidentiary hearing unless the motion raises no legally cognizable claim, the allegations in the motion are unreasonably vague, conclusory, or incredible, or the factual matters raised by the motion may be resolved by the district court on the record before it. See, e.g., Procunier v. Atchley, 400 U.S. 446, 451-52, 91 S.Ct. 485, 488, 27 L.Ed.2d 524 (1971); Marchibroda v. United States, 368 U.S. 487, 494-96, 82 S.Ct. 510, 513-14, 7 L.Ed.2d 473 (1962); Baumann v. United States, 692 F.2d 565, 570-71 (9th Cir.1982); United States v. Costanzo, 625 F.2d 465, 469-70 (3d Cir.1980); Sosa v. United States, 550 F.2d 244, 250 (5th Cir.1977). In the instant case, the defendant contends that an evidentiary hearing was necessary for the court to determine whether her guilty plea was entered knowingly and intelligently. We agree.

        It is well established that a guilty plea is valid only if made voluntarily, knowingly, and intelligently. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). In her motion for post-conviction relief under section 2255, the petitioner alleged that her plea was not entered knowingly and intelligently in essence because she was not given effective assistance of counsel. She claimed that she was in fact an unwitting participant in the check-kiting scheme and

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thus did not have the intent to steal required for conviction under 18 U.S.C. Sec. 2113(b), but that her attorney advised her to plead guilty without giving adequate consideration to a possible defense of lack of intent, and without informing her of this possible defense. 3 In her recounting of the events preceding her plea of guilty, she suggested that her attorney had had a conflict of interest and that he had paid much attention to her husband's defense at the expense of her defense. She also stated that her attorney suggested to the three Fryes that by cooperating with the prosecution, each one of them would enhance the chances of the others to receive a sentence of probation instead of incarceration.

        From our review of the record, it appears that the district court dismissed the defendant's motion without an evidentiary hearing for two reasons. First, it determined from the record before it that there was a...

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