Meyer v. United States, 19678.

• Decision Date: 20 April 1970
• Docket Number: No. 19678.,19678.
• Citation: 424 F.2d 1181
• Parties: Robert E. MEYER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

424 F.2d 1181 (1970)

Robert E. MEYER, Appellant, v. UNITED STATES of America, Appellee.

No. 19678.

United States Court of Appeals, Eighth Circuit.

April 20, 1970.

COPYRIGHT MATERIAL OMITTED

Francis L. Barkofske, St. Louis, Mo., for appellant and filed brief.

James M. Gordon, Asst. U. S. Atty., St. Louis, Mo., for appellee, Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., for the brief.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

MEHAFFY, Circuit Judge.

Robert E. Meyer appeals from an order of the United States District Court for the Eastern District of Missouri, Eastern Division, denying, after an evidentiary hearing, his motion to withdraw his plea of guilty to a charge of forcibly breaking into a United States Post Office at Webb City, Missouri. The grounds set forth in his motion and his assignments of error here are (1) that his plea was involuntary as a result of threats and coercion by federal agents; (2) that he signed the waiver under Rule 20 against his will; and (3) that he was inadequately represented by counsel. We affirm the judgment of the district court.

The original petition was filed pro se as a § 2255 motion on June 24, 1968 and was amended on August 13, 1968, setting out the allegations of facts with more particularity. Meyer petitioned the court for appointment of counsel and present counsel was appointed on October 29, 1968. The plenary evidentiary hearing was held on December 13, 1968.

On March 13, 1968, a complaint was filed in the Western District of Missouri (Kansas City) by W. L. Ruddell (sometimes spelled Rudell), a postal inspector at Kansas City, charging Meyer with forcibly breaking into a United States Post Office at Webb City, Missouri on or about October 23, 1964, with intent to commit larceny and other depredation therein in violation of 18 U.S.C. § 2115. The complaint was based on statements made to Ruddell by Richard W. Christenson (sometimes spelled Christianson) and William A. Conway to the effect that Meyer forcibly broke into the Webb City Post Office with them and attempted to open the vault with an acetylene torch. Meyer was arrested in St. Louis, which is in the Eastern District of Missouri, on a Commissioner's warrant on March 15, 1968, and was released the same day on a $1,000.00 recognizance bond returnable in the United States District Court, Western District of Missouri, Kansas City.

An information was filed March 27, 1968 in the Western District (Kansas City), charging Meyer with forcibly breaking into the Webb City Post Office, and on April 2, 1968, Meyer signed a consent to transfer the case to the Eastern District (St. Louis), where he had been arrested, for a plea of guilty and sentencing under Fed.R.Crim.P. 20.

Meyer was scheduled to be arraigned and enter his plea on April 12, 1968, but when he appeared in court without an attorney Judge Meredith appointed Mr. Tom P. Mendelson to represent him and continued the case to April 19, 1968. When Mr. Mendelson was notified of his appointment he contacted the Assistant District Attorney who was handling the case, Mr. Francis Murrell, who told him that Meyer had a somewhat extensive prior record and that he had signed a consent to transfer under Rule 20 and indicated a desire to plead guilty. Murrell said he had instructed Meyer to go to Mendelson's office that day and talk with him about the case. However, Meyer and Mendelson did not get in touch with each other until the following week when they talked by telephone.

Mendelson testified that during the telephone conversation he told Meyer that although the Rule 20 consent for transfer which Meyer had signed contained a statement that he wished to plead guilty, nevertheless, he had a choice to plead guilty or not guilty. Mendelson further told him that if he pleaded guilty, he waived his right to trial in the Western District (Kansas City) and would be sentenced in the Eastern District (St. Louis). He explained to Meyer that the judge would inquire whether he understood the charge; whether his plea of guilty was a voluntary one; whether he did, in fact, commit the crime; whether there were any threats or promises made; etc. Meyer claims that there was no discussion concerning whether he was innocent or guilty, but Mendelson says that Meyer told him he had not committed the crime and Mendelson advised him that if he were innocent he should be able to establish his innocence and that he would have an opportunity to do so, but that he, Meyer, not Mendelson, knew whether he was in fact guilty and should make the decision. Mendelson told him that if he chose not to plead guilty before the court in the Eastern District that his file would then be retransferred to the Western District where he would stand trial, which is the procedure under Rule 20. Meyer replied that he had been told that if he were tried in the Western District he would probably be charged on two counts and could get up to a 15-year maximum sentence and that it was his intention and desire to plead guilty in the Eastern District. Mendelson asked him to think the matter over and let him know the morning of the hearing whether he wanted to plead guilty or not guilty.

Mendelson did not make any independent investigation, but he and Meyer talked about Meyer's criminal record and he told Meyer he would probably be dealt with rather severely because of it.¹ He said Meyer did not appear to be "scared" or "frightened," but, contrarily, exhibited some experience in these matters and appeared to be "most clairvoyant" as to just what the procedure was and what chances he had of achieving probation, and that he was pretty knowledgeable about the whole criminal process. Meyer told Mendelson that he had been hopeful that his plea of guilty would have been entered on the 12th when he appeared for arraignment without counsel because if it had been he "would have been back here faster than you can bat an eye." Mendelson interpreted this to mean that Meyer thought that if he had been sentenced that day, he could have been successful in a proceeding to have the conviction and sentence set aside because the guilty plea was entered when he was without counsel. Mendelson said that Meyer told him that he had not been coerced or threatened and Meyer confirmed at the evidentiary hearing that he had made this statement to Mendelson during their telephone conversation prior to arraignment.

Meyer appeared in court with Mendelson on April 19, 1968, signed a waiver stating that he had been advised of the nature of the charge against him and of his rights and that he thereby waived in open court prosecution by indictment and consented that the proceeding could be by information instead; and the court, after interrogating him and determining that his plea was guilty, also determined that it was voluntarily made, without any threats or promises, and that he understood that on his plea of guilty he could be sentenced to five years in the custody of the Attorney General and given a $1,000.00 fine.²

The court thereafter sentenced Meyer to five years in the custody of the Attorney General but granted a stay of execution of the judgment and sentence until April 29, 1968, and released him on his $1,000.00 bond then in force until that date. He was delivered to the St. Louis City Jail on April 29, and to the United States Penitentiary at Leavenworth, Kansas on May 6, 1968. The following month this action was filed.

Petitioner contends on this appeal that following the evidentiary hearing the judgment of conviction and sentence should have been set aside, that he should have been allowed to withdraw his guilty plea, and that a jury trial should have been granted to determine his guilt. He contends that the signing of the waiver under Fed.R.Crim.P. 20 and the subsequent plea of guilty were induced by threats and promises and were thus the product of unlawful coercion which entitles him to have his sentence vacated, citing Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); United States ex rel. McGrath v. LaVallee, 319 F.2d 308 (2nd Cir. 1963); and Euziere v. United States, 249 F.2d 293 (10th Cir. 1957), all of which are inapposite in that an evidentiary hearing was not held in any of them.

In the Machibroda case, supra, the question on appeal was whether a hearing should have been held to determine the truth of the allegations in the petition. The Supreme Court held that it was error for the district court to make findings on controverted issues of fact without notice to the petitioner and without a hearing. The facts here are entirely different from the facts in the Machibroda case. In this case, a full evidentiary hearing was held. There was no misrepresentation concerning the length of sentence petitioner would receive if he pleaded guilty to this charge, as was the case in Machibroda. This is clearly shown from the record at the time petitioner entered his plea of guilty and was also admitted by him at the evidentiary hearing on his present petition. At the time of the plea on April 19, 1968, the following transpired:

"THE COURT: Before accepting your plea of guilty, you understand this information charges you with on October 23rd, 1964, at Webb City, Missouri, breaking into a United States Post Office with intent to commit a larceny?

"DEFENDANT MEYER: Yes, Your Honor.

"THE COURT: You also understand that on your plea of guilty you may be sentenced to five years in the custody of the Attorney General and a fine of a thousand dollars?

"DEFENDANT MEYER: Yes, Your Honor, I understand."

Meyer stated at the evidentiary hearing that he remembered being informed by the judge that he could be sentenced to five years, and that no one ever promised him that he would receive less than five years on the charge. This was the length of sentence that he received, and the court did not fine him in any amount.

The second case cited by petitioner, United States ex rel. McGrath v. LaVallee, supra,...