U.S. v. Marzgliano, 78-1169

• Citation: 588 F.2d 395
• Decision Date: 27 November 1978
• Docket Number: No. 78-1169,78-1169
• Parties: UNITED STATES of America, Appellee, v. Salvatore MARZGLIANO, Joseph Mogavera, Paul R. Labriola, Thomas Graham, Bernard Carroll, William Sevransky, Anthony Noto, Peter Scheib, Carlo Joseph Scala, Richard Campo, Ciro J. Graziano, Timothy Mitteager, Marilyn Wallace, Jerome Otieri, Richard Gunn, Theodore Mendel. Appeal of Joseph MOGAVERA.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 395

588 F.2d 395

UNITED STATES of America, Appellee, v. Salvatore MARZGLIANO, Joseph Mogavera, Paul R. Labriola, Thomas Graham, Bernard Carroll, William Sevransky, Anthony

Noto, Peter Scheib, Carlo Joseph Scala, Richard Campo, Ciro

J. Graziano, Timothy Mitteager, Marilyn Wallace, Jerome

Otieri, Richard Gunn, Theodore Mendel.

Appeal of Joseph MOGAVERA.

No. 78-1169.

United States Court of Appeals, Third Circuit.

Argued Sept. 8, 1978.

Decided Nov. 27, 1978.

Ralph A. Jacobs, Asst. U. S. Atty., Robert J. Del Tufo, U. S. Atty., Frank C. Razzano, Newark, N. J., for appellee.

Ronald A. Cohen, Larry Bronson, Orange, N. J., for appellant.

Before GIBBONS, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Joseph Mogavera appeals from the denial of a motion for dismissal of his indictment or, in the alternative, for withdrawal of his guilty plea and subsequent sentence. Without a hearing, the district court denied relief determining first, that the dismissal of the indictment was not mandated by the Interstate Agreement on Detainers, 18 U.S.C. app. § 2 (1976), and second, that Mogavera had not demonstrated that his guilty plea was involuntary under 28 U.S.C. § 2255 (1976). We agree that the Interstate Agreement on Detainers was not violated, though on different grounds from those advanced by the district court. However, we hold that Mogavera is entitled to a hearing on the voluntariness of his guilty plea.

I.

On August 5, 1974 Mogavera and fifteen others were indicted for conspiracy to forge and utter United States Savings Bonds and for the substantive offense of forging United States Savings Bonds in violation of 18 U.S.C. §§ 371 and 495 (1976). Mogavera was also charged with failure to file an income tax return. He was arraigned in United States District Court for the District of New Jersey on September 20, 1974; he pleaded not guilty and was released on bail. While awaiting trial on the federal charges, he pleaded guilty to a New York state charge in February, 1975, and was sentenced to a three year term. He began serving his sentence in a New York state prison on March 10, 1975. On June 13, 1975 the federal government procured his transfer to the federal correctional facility in New York City pursuant to a writ of habeas corpus ad prosequendum.

While in federal custody, Mogavera pleaded guilty to the forgery and tax charges on June 27, 1975. The district court judge conducted a hearing to determine the voluntariness of Mogavera's guilty plea as required by Rule 11 of the Federal Rules of Criminal Procedure. Under oath, Mogavera declared that neither his attorney nor the government had made any promises to him which induced him to plead guilty. Mogavera does not challenge the sufficiency of the Rule 11 proceeding.

After the acceptance of the plea, he was returned to the state facility pending the preparation of the federal probation report. On October 6, 1975 he was again transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum. He was sentenced by the district court judge on October 24, 1975 to a five year term to run consecutive to his state sentence and to five years probation to follow his release from custody.

II.

Mogavera first contends that he is entitled to the dismissal of his indictment on the federal charges because his rights under the Interstate Agreement on Detainers were violated. The Agreement governs the transfer of a prisoner from a jurisdiction where he is serving a sentence to another jurisdiction for proceedings against him. ¹ Under article IV(e), if the prisoner is returned to the original place of imprisonment before being tried in the second jurisdiction, then his indictment in the second jurisdiction must be dismissed with prejudice. ²

The district court held that the transfer of Mogavera from the federal facility back to the state prison after the acceptance of Mogavera's guilty plea but before sentencing did not violate the Agreement. The court read article IV(e) as requiring dismissal only if "Trial is not had on any indictment . . . prior to the prisoner's being returned to the original place of imprisonment." See note 2 Supra (emphasis supplied). Thus, it reasoned that the Agreement does not prevent transfers after the prisoner is tried in the second jurisdiction. Since it determined that the entry of a guilty plea is the legal equivalent of a "trial," the district court held that the post-guilty plea transfers were outside the ambit of the Agreement.

We need not reach the merits of the district court's statutory construction. After the district court's decision, the Supreme Court held in United States v. Mauro, 436 U.S. 340, 360, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), that a writ of habeas corpus ad prosequendum is not a "detainer" within the meaning of the Agreement. ³ In each instance, Mogavera's transfer from state to federal custody was achieved pursuant to a writ of habeas corpus ad prosequendum. Since the writ does not invoke the protections of the Agreement, Mogavera is not entitled to the dismissal of his indictment. ⁴

III.

Mogavera contends alternatively that his guilty plea was not voluntary. Under 28 U.S.C. § 2255 he is entitled to a hearing on his petition "(u)nless the motion and the files and records of the case Conclusively show that the prisoner is entitled to no relief." ⁵ (emphasis supplied) After reviewing the appropriate materials, the district court, without a hearing, denied relief. We address solely the issue of whether Mogavera has demonstrated that he is entitled to a hearing and do not decide whether habeas corpus relief is warranted.

As the basis of his section 2255 claim, Mogavera alleges that his attorney, Samuel R. DeLuca, made false representations to him which induced his guilty plea. In his affidavit in support of the habeas corpus petition, Mogavera claims that, "Mr. DeLuca promised me that if I plead guilty to one count of this indictment, and one count of the income tax information, that my sentence would not exceed the New York sentence, and would run concurrent with it." App. at 24a. Mogavera received a five year sentence to run consecutive to the state sentence and five years probation on his release from custody. Further, Mogavera asserts: "Before I took the plea I was advised by Mr. DeLuca to say yes to all questions asked by the judge." Id.

Paul Labriola, Mogavera's co-defendant, also submitted an affidavit in support of Mogavera's petition. He claims that he was present on an occasion when DeLuca promised Mogavera that the district court judge would give Mogavera a concurrent sentence or, at the worst, one or two years to run consecutive to the New York sentence. In addition, he reports that, "(DeLuca) told Mr. Mogavera that it was guaranteed, and that if it did not happen as promised, he DeLuca would take full responsibility, and Mr. Mogavera could withdraw his plea." App. at 26.

The crucial affidavit came from Robert Weiswasser, a member of the New York Bar. He had originally represented both Mogavera and Labriola but withdrew from representation of Mogavera, apparently because of a potential conflict of interest. He recommended that Mogavera retain DeLuca. Weiswasser states in his affidavit that he was present when DeLuca promised Mogavera that if Mogavera pleaded guilty, Mogavera would receive a sentence which would run concurrent with and not exceed the sentence given by the New York state court. App. at 27a-28a.

A careful reading of the affidavits indicates that DeLuca may have led Mogavera to believe that he had a special relationship with the district court judge and had "fixed" the sentence. The Supreme Court wrote in Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), that, "(a) guilty plea, if induced by promises . . . which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack." This court confronted allegations similar to those made by Mogavera in Moorhead v. United States, 456 F.2d 992 (3d Cir. 1972). Moorhead contended in his section 2255 motion that his attorney had represented to him that a "proposition" had been arranged with the prosecutor: if he pleaded guilty, he would get no more than a suspended sentence or full probation. He also alleged that his attorney directed him to respond affirmatively when the court asked whether his plea was voluntary. The lower court denied his motion without a hearing. This court held: "A plea induced by such misrepresentations does not meet the federal standard of voluntariness. . . . He alleges actual misrepresentation as to a 'proposition' for a light sentence. That allegation is sufficient to require the holding of an adversary hearing." Id. at 995. See Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

In McAleney v. United States, 539 F.2d 282 (1st Cir. 1976), defense counsel told his client that the prosecutor had agreed to recommend a light sentence. In fact, the prosecutor, when pressed for some prediction, had only given his personal opinion that the defendant would receive a light sentence; he never promised to give a recommendation. In granting the motion to withdraw the plea, the court held: "(The defendant) was entitled to credit his attorney's representation as to the fact of such an agreement, and to rely on it; and if his guilty plea was in fact induced by such a representation, we agree with the district court that relief is in order." Id. at 284. See generally Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Owens v. United States, 551 F.2d 1053 (5th Cir.), Cert. denied, 434 U.S. 848, 98 S.Ct. 155, 54 L.Ed.2d 115 (1977); United States v. Pallotta, 433 F.2d 594 (1st Cir. 1970); United States v. McCarthy, 433 F.2d 591 (1st Cir. 1970); United States v. Del Piano, 386 F.2d 436 (3d Cir. 1967), Cert. denied, 392 U.S. 936, 88 S.Ct....