Heideman v. United States

• Decision Date: 10 August 1960
• Docket Number: 16408.,No. 16395,16402,16395
• Citation: 281 F.2d 805
• Parties: Vance W. HEIDEMAN, Appellant, v. UNITED STATES of America. Stanley V. KESSEL, Appellant, v. UNITED STATES of America. George H. BRYANT, Appellant, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Eighth Circuit

281 F.2d 805 (1960)

Vance W. HEIDEMAN, Appellant, v. UNITED STATES of America.

Stanley V. KESSEL, Appellant, v. UNITED STATES of America.

George H. BRYANT, Appellant, v. UNITED STATES of America.

Nos. 16395, 16402, 16408.

United States Court of Appeals Eighth Circuit.

August 10, 1960.

Vance W. Heideman, pro se.

Stanley V. Kessel, pro se.

George H. Bryant, pro se.

Robert Vogel, U. S. Atty., Gordon Thompson, Asst. U. S. Atty., Fargo, N. D., for appellee.

Before GARDNER, WOODROUGH and VOGEL, Circuit Judges.

WOODROUGH, Circuit Judge.

On December 16, 1958 appellants Stanley V. Kessel and Vance W. Heideman were sentenced to twenty years imprisonment and at the same time appellant George Harding Bryant was sentenced to twenty-five years upon their pleas of guilty to an indictment against them in six counts for interstate transportation with unlawful and fraudulent intent of six forged money orders in one hundred dollar denomination in violation of 18 U.S.C. § 2314. The money orders were never negotiated.

Kessel and Heideman were each sentenced to four years on each of five counts to run consecutively and Bryant to five years on each of the five counts to run consecutively. In addition, all were sentenced on the sixth count and put on probation to commence after the conclusion of service on the fifth count. They are serving the sentences.

They applied to the sentencing court to vacate the sentences by petitions treated as motions to vacate under 28 U.S.C. § 2255 alleging in substance among other things that their pleas of guilty were not entered voluntarily by them but were wrongfully brought about in part by menacing expressions in their presence by the assistant district attorney in charge of their case and in part by deceptive inducement held out to them by him, in that: After defendants had pleaded not guilty and had been brought into court for the purpose of giving their consent to be tried at Fargo the assistant attorney declared in regard to them in their hearing that "there would be no deals" and that "he intended asking for the maximum prescribed by law." That maximum as to each of the defendants was sixty years imprisonment and sixty thousand dollars fine.

That thereafter a conference was held between the prosecutor and defendants' attorney reported to defendants in which the prosecutor indicated his view that a jury would surely find them guilty but he said that if defendants would change their plea to guilty he would recommend a five year term for each defendant and the Court would accept such recommendation. When the defendants were brought into court for the purpose of changing their pleas it is claimed that the prosecuting attorney confirmed to them his offer and statements made to their attorney. Also that he added: "You will be saving yourselves a lot of trouble and us too if you do change your plea."

Although the Court recognized the petitions as motions under § 2255 they were denied without a hearing on the ground of conclusive showing in the motions, files, and records, that the prisoners were entitled to no relief. Their contention on this appeal is that their pleas of guilty were obtained from them unfairly and were not voluntary and should be vacated.

The record before us includes the steps by which the defendants were arrested by state police in Minnesota and brought to North Dakota and subjected to series of questionings by agents of the Federal Bureau of Investigation both before and after indictment but it does not appear that the District Court interrogated any of them as to the reason for their change of plea or made inquiry of them as to whether it was voluntary and free from coercion or induced by assurance concerning the penalty.

It may be that the crime of transporting false or forged securities with unlawful and fraudulent intent across state lines will be committed under such circumstances as to justify the extreme penalty of the statute but the record here does not suggest such a situation. The securities were six so-called "Universal Money Orders" calling for only a hundred dollars each, and all of them were carried across the line in one transaction. The act was probably more than a petty misdemeanor but it was not a heinous crime like murder, rape, or arson, nor could it fairly be thought to merit the same kind of penalty.

Yet, according to the allegations of the motions, the prosecuting attorney declared his intention of treating the offense as one meriting the extreme penalty of the law that is only applied in modern times to most atrocious crimes, i. e., sixty years, split into consecutive terms, amounting to life imprisonment and making his recommendation accordingly. Also, according to the allegations, he declared that his recommendations would prevail.

On the other hand it was alleged that on the eve of the trial there came from him the offer of the five year sentence for the guilty pleas and the inducement of saving trouble if the plea was forthcoming and the assurance that the recommendation of the prosecution would prevail.

The motions on the whole present facts from which, if substantiated, it can be fairly inferred that pressure by threat and enticement were improperly brought to bear upon the defendants and their pleas were not voluntary. Section 2255 requires that a hearing be held unless the files and records in the case conclusively show that the petition is without merit. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232; Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579.

In Kercheval v. United States, 274 U.S. 220, 223-224, 47 S.Ct. 582, 583, 71 L.Ed. 1009, the Court said: "A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads, he may be held bound. * * * But, on timely application the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence."

The gravity of the effect of a plea of guilty requires a commensurate thoroughness in the inspection of the circumstances surrounding the entering of that plea and of the motivating factors for it. Such an inquiry does not have for its object the ascertainment of the petitioner's guilt or innocence, but is limited in its scope to the voluntariness of the plea. Friedman v. United States, 8 Cir., 1952, 200 F.2d 690.

A plea of guilty is not voluntary simply because it is the product of sentient choice. "Conduct under duress involves a choice * * * and conduct devoid of physical pressure but not leaving a free choice is a product of duress as much so as choice reflecting physical constraint." Frankfurter, J., concurring in Haley v. State of Ohio, 332 U.S. 596, 606-607, 68 S.Ct. 302, 307, 92 L.Ed. 224. Assuming, as we must for the purpose of this appeal, that the allegations in the petition are true, then the statements of the assistant United States attorney that there would be "no deals" — that he intended to try to get the maximum sentence (life imprisonment and heavy fines) must be construed as gross exaggeration of the offense and a fearful threat to the defendants. When he later offered to "recommend" a sentence of...