U.S. v. Michaelson

• Decision Date: 31 March 1977
• Docket Number: D,No. 728,728
• Citation: 552 F.2d 472
• Parties: UNITED STATES of America, Appellee, v. Robert MICHAELSON, Appellant. ocket 76-1559.
• Court: U.S. Court of Appeals — Second Circuit

Page 472

552 F.2d 472

UNITED STATES of America, Appellee, v. Robert MICHAELSON, Appellant.

No. 728, Docket 76-1559.

United States Court of Appeals Second Circuit.

Argued Jan. 28, 1977.

Decided March 31, 1977.

Barry Ivan Slotnick, New York City, for appellant.

James A. Moss, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Frederick T. Davis, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before FEINBERG, OAKES and GURFEIN, Circuit Judges.

FEINBERG, Circuit Judge:

Robert Michaelson appeals from an order of the United States District Court for the Southern District of New York, Kevin T. Duffy, J., denying Michaelson's motion to withdraw his guilty plea to a charge of aiding and abetting the filing of a false document with the United States Department of State. 18 U.S.C. §§ 1001 and 2. Appellant offers us a number of reasons why the judge erred, but we find none of them, on this record, persuasive. Therefore, we affirm the judgment of the district court.

Michaelson was indicated in May 1976 on four counts. The first charged him and six co-defendants with conspiring both to file false documents with the State Department and also to violate the Gun Control Act of 1968. The remaining counts alleged that the same defendants had facilitated the filing of three false documents with the State Department. Trial began on September 20, 1976, by which time two of appellant's co-defendants had entered guilty pleas. The next morning, after the jury had been selected, two more defendants pleaded guilty. On the next day, after the Government and one of the two remaining co-defendants had made opening statements, Michaelson withdrew his not guilty plea on one count of the indictment and pleaded guilty to the charge described above. At the time of the guilty plea, there was colloquy in open court, described in greater detail below. The remaining two defendants were later found guilty by the jury, after a two-week trial.

Sentencing was scheduled for November 5, 1976, and then for November 22. On November 16, counsel for Michaelson was allowed to examine the Pre-Sentence Report, prepared by the Probation Office. On November 18, appellant's attorney asked for a delay in the sentencing hearing. This request was denied. On November 19, Michaelson moved to withdraw his guilty plea on various grounds, discussed below. On November 22, Judge Duffy denied this motion and sentenced appellant to five years imprisonment on Count Four of the indictment. In accordance with the Government's agreement with appellant, the other three counts were then dismissed. This appeal followed.

I

Appellant argues that the district judge abused his discretion in not allowing him to withdraw his guilty plea. Fed.R.Crim.P. 32(d) provides:

A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

Thus, the Rule offers little guidance as to the applicable standard for a pre-sentence withdrawal of plea. Appellant, however, reads various authorities as suggesting that motions for such relief are to be viewed with great liberality. E. g. Kercheval v United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) (withdrawal allowed in court's discretion "if for any reason the granting of the privilege seems fair and just"); United States v. Stayton, 408 F.2d 559 (3d Cir. 1969); Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499 (1959); ABA Standards Relating to Pleas of Guilty, § 2.1(b). ¹ As appellant sees it, the applicable test is that a defendant "may withdraw his plea of guilty prior to sentencing when he has good reason to do so and the Government has proffered no (or insufficient) reason not to allow it." ²

The dissenting justices in Neely v. Pennsylvania, supra note 1, pointed out that the Supreme Court has "not previously answered" the question "under what circumstances a defendant, prior to sentencing, may withdraw a guilty plea." 411 U.S. at 954, 93 S.Ct. at 1934 (emphasis in original). But we have faced this question with some frequency, and have held that the defendant has the burden of satisfying the trial judge that there are valid grounds for withdrawal, taking into account any prejudice to the government. United States v. Lombardozzi, 436 F.2d 878, 881 (2d Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1379, 28 L.Ed.2d 648 (1971); United States v. Fernandez, 428 F.2d 578, 580 (2d Cir. 1970). ³ Moreover, we have held that the trial judge's determination on whether defendant has met his burden will be reversed "only if clearly erroneous." United States v. Lombardozzi, supra, 436 F.2d at 881; United States v. Podell, 519 F.2d 144, 148 (2d Cir.), cert. denied, 423 U.S. 926, 96 S.Ct. 270, 46 L.Ed.2d 252 (1975).

Turning now to the alleged justification for withdrawal of the plea, appellant argued in the district court that (1) the Government had violated a plea agreement by giving the Probation Office its views as to defendant's relative culpability; (2) at the time of the guilty plea, Michaelson told the judge that his alleged criminal acts "were the product of fear and duress" so that there was an insufficient factual basis for the plea; and (3) the Government had not disclosed to Michaelson prior to his plea that the Government informant was "a real life gangster."

Taking these arguments in turn, we hold that the district judge did not abuse his discretion in refusing to allow the guilty plea to be withdrawn. The record indicates that the Government informed Michaelson before his guilty plea that it would make no recommendation as to sentence. That promise was not broken. But appellant also argues that the Government therefore impliedly agreed not to furnish the Probation Office with information the Government had as to the part each defendant played in the criminal scheme. However, the Government had a duty to transmit such facts, see United States v. Needles, 472 F.2d 652, 654-55 (2d Cir. 1973), and the argument that it impliedly agreed not to is frivolous.

The claim based upon alleged fear and duress is similarly without merit. When Michaelson's guilty plea was taken, he did tell the judge that he was "induced" to go to two conspiratorial meetings and that he had been afraid. But he went on to say,

I knew I could have gone to the authorities. I acted stupidly. I should have gone to the authorities.

There is no hint in the record that Michaelson, well represented by a competent attorney was unaware that entrapment or coercion could be used as a defense. Moreover, the judge had already heard the Government's opening statement and explored with Michaelson on the record what he had done and the state of his knowledge. Cf. United States v. Podell, supra, 519 F.2d at 149-50; United States v. Navedo, 516 F.2d 293, 298 n. 10 (2d Cir. 1975); Irizarry v. United States, 508 F.2d 960, 967 (2d Cir. 1974). Under the circumstances, there was a sufficient factual basis for Michaelson to plead. Moreover, it is clear that he pleaded guilty after four co-defendants had pleaded guilty and after the Government's opening statement at trial, because he thought it was in his best interests to do so. Michaelson's change of mind after the trial of his co-defendants had ended and after he had seen the Pre-Sentence Report is simply not sufficient reason to require the district judge to grant the motion. ⁴

Nor was the judge compelled to grant that relief because appellant argued that the Government failed to tell him that its informant, with whom Michaelson had dealt, was a "real life gangster working with the Government." Appellant's alleged "fear" of hoodlums had been the basis of the entrapment defense appellant decided to discard when he pleaded guilty. That one of the hoodlums was a "real" gangster, who "informed" for the Government, would not have erased appellant's propensity to commit the crime and his admission that he "should have gone to the authorities."

II

Michaelson also argues that his guilty plea was not taken in accordance with various technical requirements of Fed.R.Crim.P. 11(c), (d) and (e), and must therefore be vacated. Appellant relies upon United States v. Journet, 544 F.2d 633 (2d Cir. 1976), which we decided on November 1, 1976, five and one-half weeks after appellant pleaded guilty but three weeks before his motion to withdraw his guilty plea was denied. In Journet, we considered the effect of the recent amendments to Fed.R.Crim.P. 11 ⁵ and stated that ". . . unless the defendant is specifically informed of each and every element enumerated in Rule 11 the plea must be vacated." 544 F.2d at 634. Although Michaelson never raised the issue in the district court, his brief in this court ⁶ argues that Rule 11 was not followed in the following respects: He was not advised that at trial, he would have the right not to be compelled to incriminate himself and the right to cross-examine witnesses against him; and that by pleading guilty, he waived the right to trial and that he might be required to answer questions that could later be used against him; moreover, the record did not reflect that the plea was the result of an agreement with the Government, which was accepted by the district judge.

The Government contends, and the record discloses, that all but two of these contentions are factually incorrect. The two exceptions relate to the requirement that a defendant be advised, under Rule 11(c)(3), that he cannot be compelled to incriminate himself and, under Rule 11(c)(5), that if he pleads guilty and answers questions from the court, they may later be used against him. ⁷ The claim before us, then, is a limited one, but nonetheless substantial in view of the broad language of Journet, quoted above, and the Government's concession that the...