Bergen v. United States, 12859.

• Decision Date: 10 November 1944
• Docket Number: No. 12859.,12859.
• Citation: 145 F.2d 181
• Parties: BERGEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

145 F.2d 181 (1944)

BERGEN v. UNITED STATES.

No. 12859.

Circuit Court of Appeals, Eighth Circuit.

October 25, 1944.

Rehearing Denied November 10, 1944.

COPYRIGHT MATERIAL OMITTED

J. K. Murray, of Bismarck, N. D., for appellant.

P. W. Lanier, U. S. Atty., of Fargo, N. D. (Joseph P. Stevens, Asst. U. S. Atty., of Fargo, N. D., on the brief), for appellee.

Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

The question on this appeal is whether there was an abuse of discretion on the part of the trial court in refusing the appellant's motion to permit him to withdraw his plea of guilty to an indictment charging him and six others with a conspiracy to defraud the United States. The motion was made within ten days after the entry of the plea and before imposition of sentence, as required by Rule 2(4) of the Rules of Practice and Procedure in Criminal Cases, 18 U.S.C.A. following section 688.

The indictment charged that appellant, Bergen, and his co-defendants conspired to corruptly administer that section of the National Bankruptcy Act commonly known as the Frazier-Lemke Act, 11 U.S.C.A. § 203. One of the defendants was the conciliation commissioner, appointed by the United States District Court for the District of North Dakota, to whom actions begun under the Act were referred for the hearings and orders authorized by the Act to be made by the conciliation commissioner in such proceedings. The other defendants were persons appointed to appraise the properties of the farmer-debtors. The indictment alleged that large numbers of North Dakota farmers were heavily indebted to the Federal Land Bank of St. Paul, Minnesota, and to the United States of America through its agencies, the Farm Credit Administration and the Farm Security Administration. It charged the defendants with entering into a scheme to defraud the United States by procuring farmers to institute proceedings for relief under the Frazier-Lemke Act, by corruptly appraising the properties of the farmer-debtors at less than their real value, by concealing the assets of such farmer-debtors by means of fraudulent conveyances and by the omission of assets from the schedules in bankruptcy. The overt acts charged were the employment by Bergen of an attorney to represent the farmers before the conciliation commissioner, the solicitation by him of farmers for filing the proceedings, the refusal by the conciliation commissioner to consider applications of farmers for relief under the Act presented to him except through other parties to the conspiracy, and the making of appraisals by the other defendants.

When Bergen was arraigned, the judge of the district court inquired if he understood that he had the right to be represented by counsel. Bergen replied in the affirmative. He was then asked by the court if he was familiar with the charge against him, and his answer again was in the affirmative. The court inquired of Bergen if he had examined the charge, and his answer was "Yes." In answer to further questions by the court Bergen stated that he waived the reading of the indictment. He was asked if he had decided what plea he wanted to enter, and his answer was "Yes." In response to the court's question, "What is your plea?" his answer was "Guilty." Bergen then said: "However, Your Honor, I would like to present a statement in my case to this Court for your information, and I would like to present a copy of it to the press, with the permission of the United States Commissioner, the United States Marshal — with their permission."

After receiving assurance from the defendant and from the district attorney that nothing in the statement referred to the cases against Bergen's co-defendants or other similar cases then pending, the court permitted one copy of the statement to be filed in the case. The court said: "I will, of course, want to examine it carefully before sentence is pronounced in any of the cases." At the time of Bergen's arraignment he was in custody. With his consent, the court deferred sentence until the following week. His plea of guilty was accepted without consideration by the court of the statement made in connection with it.

Following these proceedings the others charged in the indictment were tried. The conciliation commissioner and one of the appraisers were convicted. The other defendants were acquitted. After this trial and about one week after the entry of Bergen's plea of guilty, those convicted at the trial and Bergen appeared for sentence. In response to an inquiry by the court, an attorney appearing for Bergen advised the court that Bergen was not ready for sentence and that he was present to talk to the court about changing his plea. Bergen then said:

"I have belabored under a misapprehension of the law. I based my plea of guilty upon the statement that I submitted to this Court. I had reached the point where I thought that merely looking at a Frazier-Lemke case would convict one. I do not feel that I am guilty, and I have so said many times, of defrauding. I have not given any advice that is adverse to ethical business procedure, and I thought I was merely pleading guilty to having solicited cases or procured cases, which I had, and on that basis, I pleaded guilty. But I have had a talk with Mr. Murray, who is retained as my attorney, and I have given him all the facts that I could, and he assures me that I am not guilty, and while I had refused attorneys before he came because I had lost confidence in them, I have confidence in what he told me, and on that basis I ask to withdraw my plea of guilty and enter a plea of not guilty."

The court asked Bergen when he had changed his mind, and, in reply, he stated that he had been in doubt for some time, but that he had changed his mind definitely that day.

Further colloquy between the court and Bergen ensued. Bergen stated that he had employed counsel that morning, and, after discussing his case with counsel, he had changed his mind on being advised that he was not guilty of anything. He said that he was in doubt all along, and that he had stated at the time of his plea that he was not guilty of using the Frazier-Lemke Act for the purpose of fraud and misrepresentation, and that he thought one could become guilty by merely soliciting cases. The court inquired if Bergen's change in attitude had not been prompted by pressure brought upon him by other defendants in similar cases. Bergen replied that he had avoided pressure by others and tried to solve the situation entirely in his own mind. He thought, when he pleaded guilty, that the statement he made would be the basis of the charge against him. The court then inquired if defendant had not told the United States Marshal that he was being subjected to pressure to change his plea and that he didn't want to offend others charged with the same or a similar offense. Defendant admitted that he had told the marshal that he didn't want to be bothered by others, that he had made up his mind, and that he thought his case was clean and he wouldn't have to bother with anybody else. The judge then stated that he had accidently come into possession of knowledge of conversations between the marshal and Bergen, and that he mentioned the matter so that the record might show that Bergen had changed his mind because of pressure brought by others, if that were the true situation. To this Bergen replied: "It is true, Your Honor, in this respect, that I felt I had merely pleaded guilty to soliciting cases * * *." He went on to say that he did not know until that morning that he had pleaded guilty to "so many points." He said he had merely glanced at the indictment, having obtained possession of it about five minutes before he pleaded guilty. He said it was now his understanding that he was subject to imprisonment in the penitentiary for two years on each overt act charged. The court assured Bergen that he was mistaken in this interpretation of the indictment, and asked him if all the recitals of the statement he filed with the court at the time of his plea of guilty were true. Bergen said that they were, and asked that, if the court could not grant his request for the withdrawal of his plea of guilty, his sentence be deferred for another day.

At this point the court overruled the motion to withdraw the plea of guilty. The court then asked Bergen his reason for wanting sentence deferred for a day. Bergen replied that he wanted another day to think it over, that he wanted to get the indictment and read it over himself in order to be satisfied about his plea. He said that he was confused about the plea and what it might result in. He said that he had undertaken his work with the farmers in good faith, and that he had tried to be honest and ethical about it. To these statements the court replied that he did not think defendant was confused; that his attitude, demeanour, and general conduct in court showed a much higher than average intelligence and understanding; and that his statement submitted to the court did not indicate any confusion as to the question involved. The court expressed the opinion that Bergen was not laboring under any serious confusion as to the real issues in the case; that any confusion in his mind was probably due to the events of that morning. Sentence was then imposed.

Bergen's statement, filed at the time of his plea, contained a detailed version of his actions in connection with the farmer-debtor proceedings filed in the District Court of North Dakota and heard by the convicted conciliation commissioner. He said that in the early fall of 1941 he paid a visit to this conciliation commissioner, who was his cousin. The commissioner told him that there would be a large number of Frazier-Lemke cases in that county as soon as the farmers could get money to finance them; that one Townley had spent about two weeks in the county soliciting cases, but had left because the farmers had no money with which to start...