McAleney v. U.S., 76-1184

• Decision Date: 13 August 1976
• Docket Number: No. 76-1184,76-1184
• Citation: 539 F.2d 282
• Parties: Edward J. McALENEY, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 282

539 F.2d 282

Edward J. McALENEY, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.

No. 76-1184.

United States Court of Appeals, First Circuit.

Argued June 3, 1976.

Decided Aug. 13, 1976.

William A. Brown, Asst. U. S. Atty., Chief, Civ. Div., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief for appellant.

Edward F. Harrington, Boston, Mass., with whom Gargan, Harrington, Markham & Wall, Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The United States is appealing from a judgment of the district court allowing McAleney's motion under 28 U.S.C. § 2255 to vacate his guilty plea and the judgment of conviction and commitment that was thereafter entered upon the plea. McAleney alleged, and the court in substance found after hearing, that his plea was involuntarily made, having been induced by the representation of his attorney, Norman MacKay, that the Assistant United States Attorney, Michael Collora, had agreed to recommend to the judge a three-year term of imprisonment. The Government in fact made no recommendation to the judge, and a seven-year prison sentence was imposed.

At the initial hearing on the section 2255 motion, McAleney and two friends testified that he pled guilty on his attorney's representation that government counsel would recommend three years. MacKay then testified, and admitted to making the representation to his client, saying that he had understood from conversations with Collora that the Government would, in fact, so recommend. Although not available at the time of the section 2255 hearing, Collora filed an affidavit denying that he had agreed to any such recommendation, and the Government sought a continuance so that Collora could testify. The court ruled, however, that the issue was "not what Mr. Collora said; it is what (McAleney's) own attorney MacKay said to him as a result of discussions he had with the Assistant United States Attorney". The court concluded, "when McAleney changed his plea he did so on the basis that he assumed the Government would be recommending a three-year sentence of imprisonment in his case to Judge Caffrey". On the basis that McAleney was induced to plead as the result of his attorney's advice that a promise had been made, the court allowed the motion to vacate.

The case was argued to us in this posture, but before deciding we remanded in order to obtain Collora's testimony and for supplemental findings thereon. We believed that the Government's role in the misunderstanding was an issue too important to be left dangling, not merely because of its possible bearing on McAleney's right to plead over but also because of the responsibility of the district court and ourselves to see that government and defense counsel adhere to acceptable standards in the plea bargaining process, the integrity of which is of paramount significance in the administration of criminal justice.

At the second hearing, held before the same district judge, Collora testified and MacKay again testified. The court found that Collora had informed MacKay, prior to McAleney's plea, that the judge before whom McAleney's criminal case was pending had a policy that he would only accept a recommendation from the prosecutor of jail or no jail, and not of a specific term of years. The court noted that MacKay "could not remember" Collora's so informing him; that MacKay was not acquainted with the judge's policy; and that MacKay had never before tried a case to final verdict in the federal court. The court went on to find that Collora, upon being pressured by MacKay as to what he thought McAleney would get, "shrugged his shoulders, raised his hands, and ventured his personal opinion that, because of McAleney's health situation, if brought to the court's attention, he might get three to five years in prison." MacKay, the court found, "transmitted Collora's personal response to his client, and the plea then followed". The court added that Collora had not meant to mislead MacKay and his client.

Subject to the alternative relief described below, we affirm the district court's judgment vacating the plea and sentence. We must accept the court's findings of fact if they are not clearly erroneous, and on this record we have no reason to dispute the findings made. Fed.R.Civ.P. 52(a). Zovluck v. United States, 448 F.2d 339, 341 (2d Cir. 1971), cert. denied, 405 U.S. 1043, 92 S.Ct. 1327, 31 L.Ed.2d 585 (1972). We recognize that the district court's supplemental findings arguably weaken its earlier findings by speaking of MacKay transmitting Collora's "personal response" to McAleney, rather than transmitting the Government's alleged agreement to recommend a three-year term. But at the second hearing MacKay stood by his previous testimony that he told McAleney that Collora or "the United States Attorney's Office" would recommend three or three to five years; and we assume that if the district court had meant to alter its original findings in this regard it would have done so directly. By transmission of Collora's "personal response", we understand the court to mean not that MacKay told McAleney that the prosecutor had expressed a personal opinion, but that by the time the message reached McAleney's ears MacKay had translated Collora's opinion into the promise earlier found.

This, of course, is the crux of the case, because if the only message transmitted had been that Collora opined that the judge would give three to five years, McAleney would have no grounds for relief. Calabrese v. United States, 507 F.2d 259 (1st Cir. 1974). Even if MacKay and his client became utterly convinced in their own minds that the lesser sentence would be given, McAleney would have no present claim absent transmission by his attorney of an alleged government promise. But once we assume, as the court found, that MacKay, a member of the bar and officer of the court, relayed word to his client that the prosecutor had promised to make a specific recommendation, the picture changes. McAleney was entitled to credit his attorney's representation as to the fact of such an agreement, and to rely on it; and if his guilty plea was in fact induced by such a representation, we agree with the district court that relief is in order. The case is squarely controlled by our decision in United States v. Pallotta, 433 F.2d 594 (1st Cir. 1970), where we said,

". . . (D)efendant alleges that he was informed about the United States Attorney's promise (to make a verbal recommendation that defendant be sentenced to ten not twelve years imprisonment) indirectly by his own counsel. A 'mere prediction by counsel of the court's likely attitude on sentence, short of some implication of an agreement or understanding, is not ground for attacking a plea.' Domenica v. United States, 292 F.2d 483, 485 (1st Cir. 1961). Here, however, defendant alleges that his counsel purported to speak on behalf of the United States Attorney; that 'a "working agreement" had been formulated by the defense counsel and the United States Attorney and that said agreement was breached and disavowed by both parties concerned.' See Machibroda v. United States, 368 U.S. 487, 489, 82 S.Ct. 510, 7 L.Ed.2d 473 . . .. Even if no 'working agreement' existed in fact, the voluntariness of defendant's guilty plea would be seriously in question if it was induced by representations of court-appointed counsel ( ¹) that such an agreement was in effect. See United States ex rel. Thurmond v. Mancusi, 275 F.Supp. 508, 516 (E.D.N.Y.1967)."

433 F.2d at 595. Compare United States v. McCarthy, 433 F.2d 591 (1st Cir. 1970).

The Government argues that there is a difference between an alleged government promise to recommend a sentence, and a representation that an accused will get a particular sentence. But in Pallotta we also had before us an alleged promise to recommend a sentence; and a defendant would rightly see such a promise as likely to exert a powerful, even if not necessarily a conclusive, effect. See United States v. Paglia, 190 F.2d 445, 447 (2d Cir. 1951), ...