Pinedo v. United States, 19220.

Decision Date22 September 1965
Docket NumberNo. 19220.,19220.
Citation347 F.2d 142
PartiesHerman A. PINEDO, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

Morris Lavine, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Richard A. Murphy, Asst. U. S. Atty., Chief, Crim. Sec., Russell R. Hermann and Brin Schulman, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES and ELY, Circuit Judges, and PENCE, District Judge.

PENCE, District Judge:

Herman A. Pinedo, appellant, and his wife Celia C. Pinedo, were jointly indicted on October 3, 1962, for violating 26 U.S.C. § 7201, viz., wilfully attempting to evade payment of part of their United States income tax due for the calendar years 1956, 1957 and 1958, by filing false joint income tax returns whereby in each year they stated that their taxable income was nothing and therefore they owed nothing to the United States, whereas, the indictment alleged, for the year 1956 they had a taxable income of $5937.88 with a tax of $1226.33 due thereon, 1957 taxable income of $10,510.20 with a tax of $2332.65 due, and 1958 taxable income of $5578.56 with a tax of $1147.28 due.

On December 3, 1962, the Pinedos appeared in court without counsel, were arraigned, and the case continued until December 10, 1962, for plea. On that day, the two appeared with their retained attorney, Alkow, and the matter of plea was continued until December 17, 1962. Each then pled not guilty to each of the three counts and trial was set for May 6, 1963. On May 6th, trial was continued until October 7, 1963. On that day, Alkow advised the court that the Pinedos wished to withdraw their pleas of not guilty and enter pleas of guilty as charged in each of the three counts.

Under the practice of that district court, before a defendant is allowed to plead guilty, he is required to sign, in open court and in the presence of his attorney, a petition to enter a plea of guilty on a form supplied by the court. As to parts pertinent here, the petition recites that the defendant has told his counsel all of the facts of the case, that counsel has fully advised him of his rights and possible defenses, the maximum punishment, and that probation may or may not be granted. It further recites that the defendant declares that no one has made any promise that he would receive probation if he pled guilty; that he hopes to receive probation but is prepared to accept any sentence the court might impose; that he makes no claim of innocence; and that he understands the statements in the indictment and the petition. This petition is accompanied by a certificate of counsel which recites inter alia that counsel has read and explained the petition to the defendant.

The petitions and certificates were signed by each defendant and by counsel in this case. Immediately thereafter, Pinedo was asked by the clerk as to his plea, to each count, and as to each count, upon his plea of "Guilty", the clerk then asked him: "Do you now plead guilty because you are guilty?", and each time the answer of Pinedo was "Yes." At the same time, the same procedure was followed by and for Mrs. Pinedo, who likewise changed her plea from not guilty to guilty.

The matter of sentence as to each was continued from October 7th to November 26, 1963, at which time Pinedo was sentenced to a concurrent period of three years on each of the three counts. Mrs. Pinedo was placed on probation. The court suspended execution of Pinedo's sentence until January 6, 1964.

On January 14, 1964, Pinedo, with a new attorney, filed a motion to vacate and set aside the judgment of the court1 or in the alternative, modify the sentence and grant Pinedo probation. The grounds claimed by Pinedo were that (1) he was innocent; (2) he was incompetently represented by counsel; (3) at his attorney's direction he signed the petition to enter a plea of guilty without having read or understood it. After a 3-day hearing, during which time Pinedo's first attorney, Alkow, his accountant, Jiminez, and Pinedo himself testified on his behalf, and the Internal Revenue Service investigator on the case also testified, the sentencing judge, on March 24, 1964, denied the defendant's motion. This appeal followed.

The point raised on appeal are:

1. The court erred in failing to set aside Pinedo's plea of guilty and judgment of conviction based thereon to correct manifest injustice, under Rule 32(d), F.R.Crim.P.2

2. The court erred in failing to correct an illegal sentence under Rule 35, F.R.Crim.P.3

3. The obtaining of a judicial confession (plea of guilty) under the circumstances of this case violated the due process clause of the Fifth Amendment4 and was therefore void.

At the time of sentence, Pinedo was 41 years old. He was a high school graduate, and for 13 years before conviction had been employed in a supervisory capacity by a very large vegetable growing, packing and shipping company operating in California, Arizona and Mexico. In the company's lettuce harvesting operation in Imperial Valley it was Pinedo's responsibility to procure some 400 lettuce pickers, supervise the operation, maintenance and care of some 8 labor buses, and supervise the company's 3 labor camps in Imperial Valley for housing and feeding the employees. Pinedo was responsible for the daily reporting of field labor time for each picker and he also acted as paymaster. He handled the irrigation records for over 1,000 acres of farm land.

The tax fraud charges stem from the operation by the Pinedos of the labor — "bracero" — camps, i. e., the housing and feeding of the workers, for which the company paid Pinedo a contracted price and out of which Pinedo admittedly made a profit. Pinedo had paid the help, sometimes in cash and sometimes by check drawn upon his bank account. Mrs. Pinedo had handled the records. Neither Pinedo nor Mrs. Pinedo had ever reported to their accountant Jiminez that they had ever received any monies for operating such camps during the 10 years preceding the indictment. Pinedo admitted that he signed the joint returns but maintained that he had paid no attention to the figures, that he had left all of that up to his wife.

Pinedo also maintained that he would not have pled guilty if he had not been advised by his attorney to do so; that his attorney had assured him that if he pled guilty he would be given probation and all he would be forced to do was to pay to the Government the unpaid taxes.

At the hearing on Pinedo's motion to vacate, supra, attorney Alkow was vigorously examined by Pinedo's new attorney, the government attorney, and the court. He testified that he had several conferences with the Pinedos in Los Angeles and in Imperial Valley; that with Pinedo, he had attempted (unsuccessfully) to locate some of the Mexican cooks and bracero camp employees who Pinedo said would substantiate the fact that he had made certain payments to them in cash; that he had had several conversations with the Assistant U. S. Attorney in charge of the case and that after the conferences he felt pretty confident that the Pinedos would each be granted probation. He insisted that he had explained the charges to the defendants; that each had understood the accusations; that he had discussed various aspects of the plea of guilty with them and did not hide the fact that there could be a prison sentence. Alkow said that the Assistant U. S. Attorney did not specifically promise to make a recommendation of leniency, but it was his understanding that the Government would not ask for a prison sentence.5 While Alkow admitted he had not read the entire petition to the Pinedos, he insisted that he had gone over the form with them there in the courtroom before they signed it.

While the district court, during Alkow's examination, said it was not satisfied with Alkow's testimony and the way he had handled the case for the defendant, nevertheless, after all of the evidence was in, the court concluded:

"I think he Alkow can be very seriously criticized for the way this case has been handled, but I do not believe that that justifies the setting aside of the judgment. I am satisfied in my own mind that the defendant had a fair hearing. If he had raised at any time this question that he didn\'t understand, I would have set aside his plea up to the time he was sentenced, but after he was sentenced, and then he discovered that his sentence included a term in a federal institution, then he changed his story. He changes his position. I don\'t think I can accept it. So the motions are denied." (T.R. 169-170)6

At the inception, the allegations in Pinedo's motion for relief under Rule 32(d) are rendered suspect by the fact that almost seven weeks elapsed between the day he pled guilty and the day he was sentenced, without any claim of innocence or misrepresentation of counsel, nor were any such claims made at the time of sentencing. Furthermore, the execution of the sentence was stayed until January 6, 1964 — and thus forty-one days more passed by without any outcry of innocence or injustice.

The record does not show what transpired on or about January 6th other than that on the day Pinedo was supposed to surrender he apparently waited for Alkow at the United States Courthouse, but Alkow did not show up and Pinedo could not contact him. Pinedo's motion to set aside judgment of conviction under Rules 32(d) and 35 was not filed by his new attorney until January 14, 1964.

Pinedo is not a simpleton nor a fool. The record shows him to be an educated, intelligent, articulate person, fully capable of handling difficult situations demanding reason and judgment. He was aware of his obligation to pay taxes. He knew that he had made a profit on the bracero camp operations. He signed the Pinedos' joint returns. Even though at the hearing on the motions he attempted to relieve himself of all responsibility for his tax returns by saying...

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  • U.S. v. Fowler
    • United States
    • U.S. Court of Appeals — Ninth Circuit
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    ...stated that an "illegal" sentence includes "a sentence which is not authorized by the judgment of conviction ...," Pinedo v. United States, 347 F.2d 142, 148 (9th Cir.1965), cert. denied, 382 U.S. 976, 86 S.Ct. 547, 15 L.Ed.2d 468 (1966), or "in excess of the permissible statutory penalty f......
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    ...consequences of appellee's guilty plea. 4 The emphasis appears in the district court's order. 5 Our decision in Pinedo v. United States, 347 F.2d 142 (9th Cir., 1965), is consistent with the principles stated in the text. We upheld the district court's factual determination that Pinedo in e......
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