U.S. v. Carabbia

• Decision Date: 13 March 1975
• Citation: 512 F.2d 34
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald David CARABBIA et al., Defendants-Appellants. NO. 74-2266.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 34

512 F.2d 34

UNITED STATES of America, Plaintiff-Appellee, v. Ronald David CARABBIA et al., Defendants-Appellants.

NO. 74-2266.

United States Court of Appeals Sixth Circuit.

March 13, 1975.

Elmer A. Giuliani, Cleveland, Ohio, for defendants-appellants.

Frederick M. Coleman, U. S. Atty., David Margolis, Steven R. Olah, Paul R. Corradini, Cleveland, Ohio, David E. Roseberry, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, PECK and McCREE, Circuit Judges.

PER CURIAM.

Carabbia appeals from an order denying his motion to withdraw his plea of guilty to the offense of conducting a gambling business in violation of 18 U.S.C. § 1955. Appellant was one of several defendants who pleaded guilty to a violation of 18 U.S.C. § 1955 apparently in exchange for dismissal of the other count of the indictment charging them with a conspiracy to violate 18 U.S.C. § 1955 in violation of 18 U.S.C. § 371, and for the dismissal of both counts against one defendant. After sentencing, appellant and the other defendants who had pleaded guilty moved to withdraw their guilty pleas under Rule 32(d) of the Federal Rules of Criminal Procedure on the grounds that the pleas were involuntary and had been induced by threats and promises. No claim was made that Rule 11 F.R.Crim.P. had not been complied with. The district judge who had accepted the pleas and imposed the sentences scheduled an evidentiary hearing on the motions.

At the hearing, there was testimony that the defendants had been advised that the district judge would impose a prison sentence if they were convicted after electing to stand trial but that a prison sentence would not be imposed if they would plead guilty. During the hearing, the judge asked one of the defense lawyers whether he had told the lawyer that it was his policy to impose prison sentences upon convicted defendants who elected to stand trial, and the attorney who was under oath, responded that the judge had.

Q (By the Court) When did I make that statement?

A (Ralph Ross) At the time when the jury was outside of the box and I believe we were in here arguing on some motions, to the best of my recollection.

Q Oh, that would be on the record then, is that correct, Sir?

A No, it was not on the record because if I recall correctly, your honor, you didn't want anything on the record there because you got a little hot at Bob Rotatori.

Q And I made the statement as to what? Now, you repeat the words as accurately as you possibly can.

A To the best of my knowledge what took place was the fact that if these men proceeded and went on through trial, you could pretty well guarantee they were going to go to jail if they were found guilty.

And during the same examination by the court, the following exchange occurred:

Q And I told you and Bob Rotatori that if their defendants did not plead guilty, that they were going to go to jail?

A Yes, sir.

When the court observed that the record did not reveal these statements that Ross attributed to the judge, Ross responded, "I am sure the court did not put that in the record because it has no place in the record. It is merely a conversation between the court and the lawyer and perhaps plea-dealing."

Appellant presents two issues on appeal: (1) whether the sentencing judge should have conducted the evidentiary hearing, and (2) whether the court abused its discretion in denying the motion to withdraw the plea. We hold that the evidentiary hearing should have been conducted by a...