Sassoon v. U.S., 76-1160

• Decision Date: 26 October 1977
• Docket Number: No. 76-1160,76-1160
• Citation: 561 F.2d 1154
• Parties: Gerald Isaac SASSOON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1154

561 F.2d 1154

Gerald Isaac SASSOON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 76-1160.

United States Court of Appeals Fifth Circuit.

Oct. 26, 1977.

Gerald Isaac Sassoon, pro se.

Terry Sullivan (Ct.Appt.), Atlanta, Ga., for petitioner-appellant.

Dorothy T. Beasley, Asst. U. S. Atty., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, GOLDBERG and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

Appellant, Gerald Isaac Sassoon, a federal prisoner, sought to have his guilty plea and sentence vacated pursuant to 28 U.S.C. § 2255. Relief was ultimately denied in the district court, and an appeal followed. Sassoon's initial appeal was dismissed for lack of jurisdiction by this Court on Mar. 30, 1977, Sassoon v. United States, 549 F.2d 983 (5th Cir. 1977), because the order from which the appeal was taken failed to comply with Fed.R.Civ.P. 58, which requires that "(e)very judgment shall be set forth on a separate document." In dismissing the appeal, this Court's opinion advised that either party was free to seek entry of a final judgment which complied with Rule 58 and to initiate a second appeal. Sassoon has done so, and this Court now reaches the merits of his § 2255 motion, reverses the order of the district court, and holds that Sassoon must be allowed to plead anew because the district court failed to comply with Rule 11 of the Federal Rules of Criminal Procedure at appellant's arraignment and sentencing.

I.

Because the procedural setting of this case is somewhat complex, the events leading up to this appeal must be set forth.

On May 31, 1974 appellant tendered a guilty plea to two separate indictments, charging him with a total of 19 counts of interstate transportation of falsely made and forged bank checks, in violation of 18 U.S.C. § 2314. On June 27, 1974 Sassoon's plea was accepted and he was sentenced to six years of imprisonment in accordance with a plea agreement which covered all counts.

Sassoon, acting pro se, later filed a "Notice of Motion to File Pursuant to 28 U.S.C. § 2255 and Motion for Transcript" on Mar. 21, 1975. Sassoon alleged a general noncompliance with Fed.R.Crim.P. 11 ¹ at his arraignment and sentencing and specifically complained that the district court had failed to inform him of the maximum sentence possible as a consequence of his guilty plea. The district court elected to treat this notice as the initiation of a § 2255 motion and ordered the government to respond. Several responses and traverses to responses followed, and Sassoon submitted a memorandum of law to support his contention that Rule 11 had been breached. ²

At the close of these pleadings the district court, on Sept. 9, 1975, without a hearing, granted Sassoon's motion to vacate and ordered that he be permitted to plead anew. The district court found that Sassoon had been adequately informed of the maximum sentence possible under his plea agreement but held that the court had failed to establish a factual basis for the plea. On Sept. 16, 1975 Sassoon was rearraigned and pleaded not guilty to the 19 counts against him. Three days later the government filed a motion with the district court seeking reconsideration of the Sept. 9 order. In support of this motion the United States submitted a memorandum of law arguing that there had indeed been full compliance with Rule 11 in accepting Sassoon's original guilty plea and that the presentence report had established the requisite factual basis. Convinced now that his first order was erroneous, the trial judge, without a hearing or any further briefing from Sassoon, granted the government's motion, vacated the Sept. 9 order and "any proceedings resulting therefrom (including petitioner's rearraignment)," and denied Sassoon's § 2255 motion. This second order, dated Sept. 29, 1975, was not properly docketed until April 13, 1977, and Sassoon's appeal followed shortly thereafter.

In briefs submitted to this Court, both pro se and by his court-appointed attorney, ³ Sassoon argues that because he had been rearraigned, the district court should be estopped from vacating the Sept. 9 order which had initially granted him relief. The government, on the other hand, argues that its motion for reconsideration was properly encompassed within either Fed.R.Civ.P. 60(b)(1) or 60(b)(6) because the Sept. 9 order was the result of judicial error.

This Court finds it unnecessary to answer either of these arguments directly. Rather, our recent decision in Sosa v. United States, 550 F.2d 244 (5th Cir. 1977), dictates the conclusion that the district court was prohibited by the terms of § 2255 from granting relief to Sassoon on Sept. 9 without first causing notice to be served upon the United States attorney and granting a hearing on the motion. Therefore, the Sept. 9 order was void, and all proceedings that followed from it were likewise void.

In Sosa, this Court interpreted § 2255 to require that a district court conduct a hearing before granting relief to a prisoner, although the statute permits the denial of relief to a petitioner when "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. Applied to the situation here, the Sosa rationale invalidates the Sept. 9 order which granted relief to Sassoon, but leaves standing the Sept. 29 order in which relief was finally denied. As a result of this interpretation of the procedural imbroglio below, the Sept. 9 order, the rearraignment, and the government's motion for reconsideration are of no legal significance. The Sept. 29 order amounts to a finding by the district court that the record "conclusively showed" that each of Sassoon's contentions was without merit.

We further note that Sassoon initiated this motion pro se and without the aid of the transcripts of his arraignment and sentencing. Later in the pleadings, when these transcripts had been made available to him, Sassoon enlarged his allegations to include additional violations of Rule 11 and submitted a memorandum of law in support of his motion. Ample time was available to the government to respond to these grounds, both before the Sept. 9 order and after it. Moreover, the district court's Sept. 9 order of relief had rested on one of these later-presented grounds. This fact indicates that the district court had considered all grounds presented by Sassoon and not merely the earlier allegation concerning the maximum sentence. It further indicates that the United States should have been aware that Sassoon's motion had been broadly construed by the district court. Additionally, it persuades this Court that the Sept. 29 denial of relief represented a decision by the district court against the appellant on all grounds raised throughout the course of the pleadings. For this reason, Sassoon's appeal is construed as resting on allegations of multiple violations of Rule 11.

II.

While we concur in the district court's conclusion that Sassoon was adequately informed of the maximum sentence which he faced as a consequence of his guilty plea, we cannot agree that the district court exhibited that "utmost solicitude" ⁴ which must be accorded to a criminal defendant who tenders a plea of guilty in a federal court. Rather, we find that the plea proceedings were flawed in two respects: both in a failure to demonstrate on the record that the appellant possessed an adequate understanding of the nature of the charges against him and in a failure to establish on the record that there was a factual basis for the plea.

In McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court set out two purposes to be served by Rule 11: first, to assist the district court in making the constitutionally mandated determination that the defendant's guilty plea is voluntary, and, second, to provide a complete record at the time the plea is entered of factors relevant to the voluntariness determination. The Court made it clear that its decision sought to protect an accused who was unaware that his admitted conduct did not constitute the offense charged as well as to facilitate the handling of post-conviction attacks by assuring an adequate record for review. Without spelling out a particular format to be followed at a plea proceeding, the Supreme Court did require that the district court address the defendant personally "to inquire whether a defendant who pleads guilty understands the nature of the charge against him and whether he is aware of the consequences of his plea." Id. at 464, 89 S.Ct. at 1170. Moreover, the Court held that "a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11." Id. at 463-64, 89 S.Ct. at 1169.

The twofold purpose of Rule 11 has been implemented in numerous decisions of this Court. Canady v. United States, 554 F.2d 203 (5th Cir. 1977); United States v. Coronado, 554 F.2d 166 (5th Cir. 1977); Sierra v. Government of Canal Zone, 546 F.2d 77 (5th Cir. 1977); United States v. Davis, 493 F.2d 502 (5th Cir. 1974) (per curiam); Monroe v. United States,463 F.2d 1032 (5th Cir. 1972). Rule 11 claims must be resolved solely on the basis of the arraignment and sentencing transcripts. United States v. Coronado, 554 F.2d 166 (5th Cir. 1977).

In the present case, the transcripts of Sassoon's arraignment and sentencing are totally devoid of any inquiry by the district court into the appellant's understanding of the charges against him. Nowhere in the transcripts is there any indication that the court informed the appellant of the elements of the offenses charged. The charges are referred to only by indictment numbers. Not even a summary reference is made to the nature of the offenses involved in the plea. While it is true that...