Georges v. United States

• Decision Date: 05 February 1959
• Docket Number: No. 17303.,17303.
• Parties: Mike GEORGES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

262 F.2d 426 (1959)

Mike GEORGES, Appellant, v. UNITED STATES of America, Appellee.

No. 17303.

United States Court of Appeals Fifth Circuit.

January 5, 1959.

Rehearing Denied February 5, 1959.

W. R. Smith, San Antonio, Tex., Dobbins, Howard & Smith, San Antonio, Tex., for appellant.

John E. Banks, Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before TUTTLE, JONES and WISDOM, Circuit Judges.

JONES, Circuit Judge.

Among the statutes enacted by the Congress in 1951 was the Boggs Act amending the Narcotic Import and Export Act. It provided that:

"Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be fined not more than $2,000 and imprisoned not less than two or more than five years. For a second offense, the offender shall be fined not more than $2,000 and imprisoned not less than five or more than ten years. * * *" 65 Stat. 767.

The Narcotic Control Act of 1956, 70 Stat. 567, amended the quoted statute by fixing the prison term for a first violation at not less than five or more than twenty years; and for a second or subsequent offense, at not less than ten or more than forty years. 70 Stat. 570, 21 U.S.C.A. § 174.

The appellant, Mike Georges, and his brother, George Georges, were indicted on May 7, 1957, and charged with violations of the statute. The indictment was in six counts. The first count of the indictment charged George Georges with receiving, concealing and facilitating the transportation and concealment of 79 grains of heroin; the second count charged George of a like offense on a different date of 64 grains of heroin; the third count charged George with the sale of 64 grains of heroin; the fourth count charged George and Mike with receiving, concealing and facilitating the transportation and concealment of 340 grains of heroin; the fifth count charged George with the sale of 340 grains of heroin. By the sixth count George and Mike were charged with conspiring to receive, conceal and facilitate the transportation and concealment of heroin in violation of 21 U.S.C.A. § 174. The conspiracy was alleged to have occurred between February 15, 1957, and April 4, 1957. George and Mike were represented by an attorney employed by them. After each had entered a not guilty plea to each count, and on May 20, 1957, George Georges entered pleas of guilty to the fifth and sixth counts and Mike Georges entered a plea of guilty to the sixth count. The United States Attorney filed an information showing that Mike Georges had been previously convicted of a narcotics offense on May 6, 1955. The sentencing was postponed until May 23, 1957. On that date the court asked their attorney if he had anything to say before sentence was pronounced. As to George Georges the attorney stated "he finally yielded to temptation and committed the offense as charged." Counsel for the brothers continued, "As far as Mike is concerned, his brother informs me that the only thing he had to do with the whole transaction was he let him use his house. I don't know what the report shows, but that's what both of them tell me." Although asked if they wished to do so, neither Mike nor George had anything to say for themselves. George was sentenced to eighteen years imprisonment and a fine of one hundred dollars. Mike was sentenced to serve fifteen years and pay a fine of one hundred dollars. With leave of course the other counts of the indictment were dismissed.

Nearly a year after he was sentenced, and represented by other counsel, Mike Georges filed a motion under Rule 32(d) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.¹ to set aside his conviction and permit him to withdraw his plea of guilty. In his motion the appellant represented that he was not guilty of any offense charged in the indictment. His motion recited that he was advised by his attorney that if he would plead guilty to the conspiracy charge the Government would dismiss the other count against him, and that if George would plead guilty to the fifth and sixth counts the other charges against him would be dismissed. The brothers asked their attorney, so it is said in the motion, as to the maximum prison sentence of each if they entered pleas of guilty. They were told by their attorney that George, on counts five and six, could not be sentenced for more than five years on each count and Mike could not be sentenced to more than five years on count six. The appellant further stated in his motion that he feared that, although innocent, he would be convicted and he wanted to save himself from more than a five-year sentence and save George from more than a ten-year sentence. The appellant attached to his motion a statement of the attorney who had represented him prior to and at the time he entered his plea of guilty.² He corroborated the appellant's statement as to the advice given regarding the maximum prison sentences. Further references to this statement will be made.

At the hearing on the appellant's motion the attorney who had represented him was called as a witness. On direct examination he testified that he had practiced law for fifty-seven years and had handled many cases in the Federal courts. He said he had told the Georges brothers they could not receive more punishment than five years on the conspiracy count and when he gave this advice he didn't know anything about the amendment to the penalty provisions. On cross-examination the lawyer admitted representing clients charged with violating 21 U.S.C.A. § 174 since the 1951 amendment and of preparing a brief and making an argument on the sufficiency of an indictment charging a violation of that provision. When he was asked if he had not read the section he answered, "I probably read the punishment part as far as that's concerned; I may have known the law at that time, but I just didn't remember." He didn't recall whether he checked the indictment or not and then said, "Well, I don't know if I ever read this indictment — just glanced over it." Again he said, "I told you I never did read over the indictment with a view to — if a man pleads guilty, why, there's no use wasting much time on an indictment."

On redirect examination the lawyer-witness swore that the facts stated in his statement annexed to the motion were true and correct. On recross-examination he admitted the incorrectness of the recital in the statement that he was unaware of the conspiracy provision in 21 U.S.C.A. § 174. As to this he said, "I'm quite sure at some time in the past I did have a knowledge of it, because I've had that statute up many, many times, and I'm quite sure I had read it, but you may read things time and time again and still forget them."

The attorney who had acted for the appellant when entering his plea and receiving his sentence included in his testimony the statement that, "As far as George Georges was concerned, why, from what he told me, there wasn't any question in the world but that he was guilty, but George and Mike always did claim that Mike didn't know much about that Mike's house was used by George." Also he testified, "Well, Mike always insisted that his only connection was that that was his house."

The district court overruled the motion of the appellant to withdraw his plea of guilty. Notice of appeal was given, the record was prepared and filed and the appellant's brief was submitted. The United States Attorney who had represented the Government at the hearing filed a well prepared and persuasive brief advocating the affirmance of the district court's order. Thereafter, upon the direction of the Solicitor General of the United States, the District Attorney filed in this Court a Confession of Error reciting that further opposition to appellant's appeal to withdraw his plea should be dropped. The reason assigned³ was the combination of factors of the case. Because of the stressing of the "combination of factors" by the Government we have gone to greater length in the recital of facts than we might otherwise have done.

Whether or not the district court should permit a plea of guilty to be withdrawn is, under Rule 32(d) Fed.Rules Crim.Proc., a discretionary matter. In the absence of a showing of abuse of discretion the judgment of the trial court should be affirmed. Powers v. United States, 5 Cir., 1951, 188 F.2d 355; Mitchell v. United States, 5 Cir., 1950, 179 F.2d 305.

The duty of an appellate court in a case where the Government has confessed error has been set forth by the Supreme Court. It has said:

"The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. See Parlton v. United States, 64 App.D. C. 169, 75 F.2d 772. The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of the enforcing officers. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties." Young v. United States, 315 U.S. 257, 62 S.Ct. 510, 511, 86 L.Ed. 832. See also Gibson v. United States, 329 U.S. 338, 67 S.Ct. 301, 91

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