Gundlach v. United States

• Decision Date: 11 December 1958
• Docket Number: No. 7715.,7715.
• Citation: 262 F.2d 72
• Parties: Herbert Leon GUNDLACH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

262 F.2d 72 (1958)

Herbert Leon GUNDLACH, Appellant, v. UNITED STATES of America, Appellee.

No. 7715.

United States Court of Appeals Fourth Circuit.

Argued November 3, 1958.

Decided December 11, 1958.

Judson E. Ruch, York, Pa. (Luria, Still & Ruch, York, Pa., on brief), for appellant John E. Hall, Asst. U. S. Atty., Greensboro, N. C. (James E. Holshouser, U. S. Atty., Boone, N. C., on brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOBELOFF, Chief Judge.

The sentencing court's procedure in accepting the defendant's plea of guilty was later attacked in a motion filed under Section 2255 of Title 28 U.S.C.A., to vacate the judgment and sentence. This appeal is from the denial of the motion.

On June 10, 1957, Herbert Leon Gundlach pleaded guilty to an indictment charging him with willful failure to pay over to the Director of Internal Revenue moneys withheld by him from his employees' wages under the Federal Insurance Contributions Act (Social Security), and also federal income taxes withheld from employees, Title 26 U.S.C.A. § 7202, Internal Revenue Code of 1954.

On the same day he pleaded guilty to an information charging him with willfully and knowingly failing to file his own income tax return for the year 1953, in violation of 26 U.S.C.A. § 145(a), Internal Revenue Code of 1939, and for the year 1954 in violation of 26 U.S.C.A. § 7203, Internal Revenue Code of 1954.

Sentence was postponed at the defendant's request until August 22, 1957. Under the indictment a sentence of nine years in prison was pronounced by the United States District Court for the Middle District of North Carolina. A separate sentence of twelve months' imprisonment was imposed under the information, but the court directed that this sentence should run concurrently with the longer one.

The motion now under review was filed on March 7, 1958. It claimed that Gundlach was deprived of due process of law. In the words of his counsel, the arraignment "did not consist of reading the indictment or stating to appellant the substance of the charge, in total disregard of Federal Rule of Criminal Procedure 10, 18 U.S.C.A.; and because the court, when appellant's plea of guilty was entered by his totally uninformed counsel, accepted the plea without first determining whether it was made voluntarily and with understanding of the nature of the charges, in total disregard of Federal Rule of Criminal Procedure 11." The two rules referred to are set forth in the margin.¹

The District Court ordered a hearing on the motion, in the course of which Gundlach was brought from prison and testified. Other witnesses also were heard, and the judge made elaborate findings, which are fully supported by the record. In substance he found that the arraignment date was first set for June 3, 1957, and Gundlach had earlier been furnished copies of the indictment and of the information. After first consulting another attorney, he employed Roy Booth, Esq., to represent him. Mr. Booth and Gundlach discussed the charges contained in the indictment and information in the defendant's possession; the defendant was thoroughly familiar with and understood the charges, and it was their joint conclusion that Gundlach should plead guilty. According to Mr. Booth's testimony, he made a pencil memorandum to this effect on the copies of the indictment and information supplied him by the defendant.

Because Mr. Booth wished to attend his daughter's graduation on June 3, the arraignment scheduled for that day was postponed to June 10; but on the latter date Mr. Booth was unable to appear in court because of his father's death. In his stead, an associate, Claude Hitchen Josey, Esq., came with the defendant to offer the guilty pleas as earlier decided after careful deliberation in the defendant's conference with Mr. Booth. As Mr. Josey was merely performing an act already planned, and as it was known that final disposition of the case by sentence would not be made that day, no independent inquiry was made by Josey concerning the details of the case. Guilty pleas were entered, but sentence was postponed as desired by the defendant, to afford him an opportunity to pay the taxes due the Government and in the hope that this would be considered by the court in mitigation. The Commissioner of Internal Revenue determined that the defendant's liability for taxes withheld, including penalties and interest, amounted to $4395.45, and that taxes due on Gundlach's own income amounted to $11,904.07. No part of these sums has been paid.

It is literally true that when the defendant's case was called on June 10, the indictment was not read or explained to him by the United States Attorney or the court; but it was established beyond a shadow of doubt, in the proceeding now under review, that when he pleaded guilty the defendant had actual knowledge of the contents of the information and indictment. He is a man of better than average intelligence and education, and although he is not a lawyer he has studied law. He conducted a correspondence school in Greensboro, North Carolina, for persons preparing to take civil service examinations, and also operated a collection agency. In the correspondence school enterprise, he employed thirty-seven salesmen and thirty office employees. The defendant has also had considerable court experience. He has been convicted for theft of government property and received a suspended sentence of five years. On a later occasion, having stolen an automobile, he was sentenced to ten months' imprisonment for violation of parole. For obtaining money by false pretenses and grand larceny he was sentenced to state prison for five years. There have been other brushes with the law, particularly for passing worthless checks. It was stated and not denied at the pre-sentence hearing that he had posted bond at least twenty times on such charges.

The judge made specific findings, which our examination of the record confirms, that the defendant knew that he had been deducting sums from his employees' wages; that he knew it was his duty to turn these sums over to the Director of Internal Revenue; and that he knowingly, deliberately and willfully failed to pay them over. Similar knowledge and willfulness were shown to exist as to the defendant's own income taxes.

As we have seen, the appellant was himself a highly sophisticated person of considerable experience in business and not unacquainted with criminal procedure and, in addition, was at every stage of the prosecution represented by privately employed counsel. Nevertheless, it was contended in his behalf at the hearing on the motion to set aside the judgment and sentence that he did not understand the significance of the word "willful" in the indictment and in the information. He asserts that if the significance of the word "willful" had been explained to him, he would not have pleaded guilty. The events and circumstances above recited refute the contention. At no time has the appellant suggested any fact that would reasonably justify a defense on the ground that his acts were not willful. It has been argued to us that Gundlach should have been permitted to show, if he so desired, that he retained the moneys because of illness in the family. If true, this would have made his conduct no less willful. He did not urge this in mitigation, and sought only a delay for restitution, which was never made. Quite palpably the notion that the retention of the money was less than willful, or even that necessity drove him to it, is mere afterthought. In no event does it raise a question of lack of due process. Nor is this a...