Friedman v. United States

• Decision Date: 23 January 1953
• Docket Number: No. 14612,14663.,14612
• Citation: 200 F.2d 690
• Parties: FRIEDMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

200 F.2d 690 (1952)

FRIEDMAN et al. v. UNITED STATES.

Nos. 14612, 14663.

United States Court of Appeals Eighth Circuit.

December 31, 1952.

Rehearing Denied January 23, 1953.

John W. Graff, St. Paul, Minn. (Marvin A. Miller; Miller, Miller & Miller, Cherokee, Iowa, and Hoffmann, Donahue & Graff, St. Paul, Minn., on the brief), for appellants.

William B. Danforth, Asst. U. S. Atty., Sioux City, Iowa (Tobias E. Diamond, U. S. Atty., Sioux City, Iowa, on the brief), for appellee.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

The question for decision is whether the District Court abused its discretion in denying the appellants' motions to vacate their sentences and for leave to withdraw their pleas of guilty and to stand trial.

The appellants, Ray E. Friedman and American Produce Company, a corporation, are two of six defendants who on March 21, 1952, were jointly indicted by the Federal Grand Jury for the Northern District of Iowa. The other defendants were Matthew Dvorkin, Nathan Dvorkin, Larry Dvorkin also known as Sam Dvorkin, and Del Smith also known as Delmond Smith. The defendant American Produce Company was owned by Ray E. Friedman, who was its President. The Dvorkins and Smith were connected with the Company. It was engaged at Sioux City, Iowa, in the processing of poultry, some of which was furnished to the Department of the Army under contract.

The indictment contained four counts. The first two counts each charged the defendants, under Title 18 U.S.C.A. § 371, with a conspiracy to make false, fictitious and fraudulent statements in a matter within the jurisdiction of the Department of the Army and in violation of Title 18 U.S.C.A. § 1001. The last two counts each charged the defendants with the substantive offense of making such false, fictitious and fraudulent statements to that Department in violation of Title 18 U.S.C.A. § 1001.

The arraignment of the defendants was first set by the court for March 25, 1952, but, at the request of their counsel, was continued to March 29. At that time all of the defendants entered pleas of not guilty. The court fixed April 18, 1952, as the trial date, but later changed it to April 21. On April 16 the court was advised that the defendants wished to change their pleas as to certain counts, and thereupon fixed April 22 as the date for a further hearing.

On April 22 the defendants appeared with their counsel. He had had ample time to familiarize himself with the charges contained in the indictment. He advised the court that the defendants desired to withdraw their pleas of not guilty to part of the indictment. Counsel for the Government stated that it would accept a plea of guilty by the corporation to Count III of the indictment and upon that plea being entered would move to dismiss the remaining counts as to the corporate defendant. Government counsel stated also that it was the understanding of the Government that the individual defendants would change their pleas to Count II of the indictment, and upon pleas of guilty being entered by each of them to that count the Government would dismiss the remaining counts as to each individual defendant.

The court then made the following statement to the defendants:

"Technically the District Attorney has to have the consent of the Court to dismiss any Count in an indictment. But that is a rather technical matter, because if the District Attorney does not want to prosecute particular Counts the Court cannot undertake to carry on the prosecution. I will state this, as to the dismissal of these Counts, if there has been any promise, inducement, or intimation made to you, that has led you to believe, because of such dismissal, what your sentence might or might not be on the remaining Count, you are advised not to enter a plea of guilty as to that, because the defendants and defendants\' counsel are informed that no one has any authority to act, to speak or intimate for the Court what sentence a defendant might or might not receive. It is the long standing rule of this Court that no one has any right to speak in any way for the Court in these matters — whether it be the United States Attorney, and I have never known that he has ever done so — at least it has never come to my attention — or any member of the Court staff — and then sometimes there are others who might attempt to do so and give defendants information that if you will do such and such a thing that the sentence will be so and so, or defendant\'s counsel or whoever it might be, if anybody has attempted to hold out to you what your sentences might or might not be, the Court will not accept your plea of guilty. And you are informed that the maximum punishment on Count II is a fine of $10,000.00 and a sentence to imprisonment for five years — and there is always the possibility that the maximum will be imposed. The Court having thus advised you, if the defendants, or any of them, have been under any belief as to what their sentences might or might not be, because of any statements made by any one, they should withdraw their pleas of guilty, and the Court will have you do so now."

After making this statement, the court asked each of the defendants individually if he had heard the statement, and each of them replied that he had.

Counsel for the Government stated that he had been urged by the defendants' counsel to inform the defendants as to what sentences might be imposed by the court, but had advised them that that matter was solely for the court to determine and was one with which he had nothing to do. He said he had informed the defendants "That they will have to take their chances on their sentences whatever it might be"; and also said, "They go into it with their eyes wide open."

At the conclusion of these statements by the court and Government counsel, Friedman, as President of the defendant American Produce Company, was asked what the plea of that defendant was to Count III of the indictment. He said, "Guilty." The Government thereupon, with the court's consent, dismissed the remaining counts of the indictment as to the corporate defendant. Each individual defendant was then asked what his plea was to Count II of the indictment, and each said, "Guilty." Government counsel then dismissed the remaining counts of the indictment as to the individual defendants.

In simple language, the offense to which the corporate defendant had entered a plea of guilty was defrauding the Government by upgrading poultry furnished the Army, and the offense to which the individual defendants had entered pleas was conspiring to defraud the Government by falsely representing that the poultry (furnished the Army), which had been eviscerated more than 76 hours after it had been killed, had been eviscerated less than 76 hours after the killing date.

The District Court had before it a presentence report from the Probation Officer. Before pronouncing sentence, the court not only permitted, but invited, counsel for the Government and counsel for the defendants to make complete statements with respect to the charges to which the defendants had entered pleas of guilty. The statement of counsel for the defendants was to the effect that the offenses were more technical than substantial; that, while the defendants admitted that they had conspired to change the "kill date" on a load of poultry to deceive the Army Inspector at the plant of the corporate defendant, so that the poultry could be eviscerated more than 76 hours after it was killed, the poultry was not unwholesome. Counsel for the defendants also stated that there had been very little upgrading of the poultry furnished the Army; that the defendants had at all times endeavored to procure and furnish the Army with the best product obtainable; and that they were all reputable and lawabiding persons of good reputation.

From the remarks of the court made before sentences were imposed, it is apparent that the pre-sentence report of the Probation Officer did not support the claims of the defendants that the offenses of which they stood convicted by their pleas of guilty were trivial and technical, rather than serious or substantial. The court sentenced the corporate defendant to pay a fine of $10,000. The sentence imposed upon the defendant Friedman was five years imprisonment. Each of the other four defendants, whom the court regarded as having been dominated by Friedman, was given a suspended sentence of two years imprisonment, and placed on probation.

The net result of the carrying out of the understanding between the defendants and the Government relative to the disposition of the case was that three counts of the indictment were dismissed as to each defendant; that each of the defendants, upon a plea of guilty, was convicted upon only one count; that four of the five individual defendants charged with having conspired to defraud the Government were placed on probation; that the corporate defendant was fined; and that the defendant Friedman alone received a prison sentence.

On April 24, 1952, two days after sentences had been imposed, the corporate defendant and Friedman filed a motion to vacate their sentences and for leave to withdraw their pleas of guilty and to stand trial. It was asserted in their motion that they were innocent of the charges made in the indictment, and had a full and complete defense to each of the counts. It was also asserted that the defendant Friedman entered a plea of guilty "on the recommendation of his counsel, Frank Margolin, and on the recommendation of Attorney John W. Graff, Ex-United States District Attorney at St. Paul, Minnesota, as under the indictment both attorneys felt that there was no serious violation of the Federal statutes and that rather than incur a lengthy trial and expense to the United States Government, that the most that could be expected would be a reasonable fine." It was further asserted that Friedman entered a plea of guilty "solely...