Smith v. United States

• Decision Date: 13 September 1976
• Docket Number: No. 75 C 1880.,75 C 1880.
• Citation: 427 F. Supp. 20
• Parties: Charles SMITH, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of New York

427 F. Supp. 20

Charles SMITH, Petitioner, v. UNITED STATES of America, Respondent.

No. 75 C 1880.

United States District Court, E. D. New York.

September 13, 1976.

David G. Trager, U. S. Atty., E.D.N.Y., Brooklyn, N.Y., for respondent; Richard Appleby, Asst. U. S. Atty., Brooklyn, N.Y., of counsel.

Michael A. Young, Legal Aid Society, New York City, for petitioner.

MEMORANDUM OF DECISION AND ORDER

MISHLER, Chief Judge.

The petitioner moves to vacate the plea of guilty to Count One of the indictment, 72 CR 672, on July 17, 1972, before Judge Orrin G. Judd,¹ and the judgment and commitment made and entered January 23, 1973, sentencing the petitioner to a prison term of ten years.

THE INDICTMENT

The five-count indictment charged the petitioner with violations of 18 U.S.C. §§ 2114 and 641 (two counts of the indictment charged the petitioner with violations of 18 U.S.C. §§ 111 and 1114, which are not pertinent to this discussion). Count One of the indictment charged the petitioner and his co-defendants with robbing John J. Talton, Jr., of the sum of approximately $5,000, which he had in his custody. Count Two of the indictment charged the petitioner with placing Mr. Talton's life in jeopardy during the commission of the crime charged in Count One.² Count Five charged the petitioner and his co-defendants with stealing United States government funds in violation of 18 U.S.C. § 641.³

When Smith offered his plea on July 17, 1972, Judge Judd made extensive inquiry to determine that the plea was voluntarily and knowingly made. Judge Judd advised the petitioner on the nature of the charge in Count One as robbing "a person who had custody of United States funds in the amount of about $5,000," and further advised Smith that the offense carried "a potential penalty of imprisonment for not more than ten years." A discussion ensued concerning the possible penalty under Count Two (the twenty-five year count), since the government stated that it would dismiss that count "if the government is satisfied" that Smith cooperated in giving information concerning narcotic dealers and helping to locate one of the co-defendants, A. C. Doyle. Referring to the ten-year count, Judge Judd said, "Mr. Smith, other than the risk of going to jail for twenty-five years, other than that consideration, has anyone forced you to plead guilty?" Smith answered, "No Sir." Smith admitted his complicity in robbing Talton of the sum of approximately $5,000. He stated that he and his three co-defendants had planned to rob Talton who they had believed to be a drug dealer about to make a purchase of narcotics. (It turned out that Talton was a special agent of the Drug Enforcement Agency, acting in an undercover capacity.) The court found that there was a factual basis for the plea and, satisfied that the plea was voluntarily, knowingly, and intelligently made, Judge Judd accepted the plea of guilty to Count One.

Smith was released on bail pending sentencing and became a fugitive. He was arrested and brought before the court for sentencing on January 23, 1973. Petitioner's counsel and the assistant United States attorney both discussed the disposition of "the twenty-five year count" (Count Two). Judge Judd stated, "According to the presentence report he stated that he was not guilty, that he pleaded guilty on the attorney's advice in order to avoid the 25-year sentence" (Tr. 1/23/73, p. 5). The court then invited Smith to move to withdraw his plea of guilty to Count One. The assistant United States attorney relented during the discussion and agreed "to dismiss the 25-year count" if the defendant was ready to be sentenced on Count One. The court indicated that it would not increase the prison term because of the bail jumping offense. Before sentencing the court again invited the petitioner to withdraw his plea, after stating the following:

The presentence report which I have made available to defendant's counsel and which they have just returned states the offense and states that he pleaded guilty on the advice of his attorney and if convicted he faced 25 years. Of course, as I read the statute, there was a mandatory 25 year sentence if he were convicted of participation in the armed robbery of a Federal agent, and there is going to be a substantial prison sentence and if the defendant wants to withdraw his plea and go to trial now, this is his last opportunity to make that request. I am not sure I would grant such an application because I have heard guilty pleas from the other three defendants in the case, and from all that I have learned I think that a jury would convict this defendant.

(Tr. 1/23/73, p. 17).

Petitioner's application⁴ was triggered by the Second Circuit Court of Appeals' decision in United States v. Rivera, 513 F.2d 519 (2d Cir. 1975), and United States v. Reid, 517 F.2d 953 (2d Cir. 1975),⁵ which held that 18 U.S.C. § 2114 is limited to cases having a postal nexus. The dual-pronged attacked leveled at the plea claims (1) that an offense under § 2113 is not alleged and/or is not supported by the facts established during the plea proceeding since the funds in Talton's custody were DEA funds; and (2) that the misinformation based on the mistake of law supplied by Smith's counsel, the prosecutor and the court that a conviction under Count Two would result in a mandatory 25-year term rendered the plea involuntary and void.

I. THE LACK OF A POSTAL NEXUS

The facts admitted by Smith constituted a violation of 18 U.S.C. §§ 641 and 2. This is not a case of a defendant pleading to a charge that does not constitute a federal crime.⁶ A miscitation is not a ground for vacating an otherwise valid plea. United States v. Rivera, 513 F.2d 519, 533 n. 21 (2d Cir. 1975); United States v. Calabro, 467 F.2d 973, 981 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973); United States v. McKnight, 253 F.2d 817, 820 (2d Cir. 1958). See F.Cr.P.R. 7(c).

II. THREAT OF MANDATORY TWENTY-FIVE-YEAR TERM LATER FOUND TO BE ERRONEOUS

A guilty plea is more than an admission of unlawful conduct. It is a waiver of all the constitutional rights embodied in a right to a fair jury trial. It cannot be sustained unless the record shows it was "made voluntarily after proper advice and with full understanding of the consequences." Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462, 36 L.Ed.2d 169 (1973).

In McCarthy v. United States, 384 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1959), the Court said:

Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.

At the time Smith offered his plea, the statutory interpretation of § 2114 comported with the advice of Smith's counsel, the prosecutor's statements and the pronouncement of the court with respect to the certainty of a 25-year mandatory term in the event of a conviction on Count Two. The record sustains Smith's claim that he pleaded to Count One to avoid the harshness of the penalty in the likely event of conviction on Count Two.

The question presented by this application is whether a plea induced by fear of a mandatory 25 year prison term, which turned out to be baseless through subsequent decisional law, renders a plea involuntary and therefore void.

A plea is not rendered invalid because it is offered to avoid a heavier penalty, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Farmer v. Caldwell, 476 F.2d 22 (5th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 178, 38 L.Ed.2d 117 (1973); Moore v. Swenson, 487 F.2d 1020 (8th Cir. 1973); Gaxiola v. United States, 481 F.2d 383 (9th Cir. 1973). A plea, however, based on the erroneous advice of counsel concerning maximum punishment cannot stand. Hammond v. United States, 528 F.2d 15 (4th Cir. 1975); Cooks v. United States, 461 F.2d 530 (5th Cir. 1972).⁷ The court in Cooks, supra at 532, noted:

Of course, counsel's inability to foresee future pronouncements which will dispossess the court of power to impose a particular sentence which is presently thought viable does not render counsel's representation ineffective, nor does a plea later become invalid because it is predicated upon advice correct at the time, but later proved to be erroneous by reason of subsequent decisions. (citations omitted).

Smith cannot prevail on a retrospective assessment of his lawyer's advice, or the prosecutor's and court's statement of the law. The claimed coercive factor was the threat of severe punishment for conduct which, as the result of later decisions, could not have been the basis for a conviction on Count Two. The claim appears to be novel. An analysis of cases dealing with post-conviction changes in the law is helpful.

The Brady trilogy of cases provides a starting point. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the petitioner was charged with kidnapping in violation of 18 U.S.C. § 1201(a). A provision of this statute allowed the jury to recommend the maximum penalty of death if the kidnapping victim had been injured by the defendant. Brady, whose victim had been harmed, pled guilty to the kidnapping charge rather than risk the death penalty in a jury trial. Subsequently, in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the Supreme Court ruled that the death penalty section of 1201(a) imposed an impermissible burden on the exercise of the right to a jury trial. In a petition brought under 28 U.S.C. § 2255, Brady argued that his plea of guilty had been...