U.S. v. Rapp

• Citation: 539 F.2d 1156
• Decision Date: 29 July 1976
• Docket Number: 75-1964,Nos. 75-1923,s. 75-1923
• Parties: UNITED STATES of America, Appellee, v. Harold Wellington RAPP, Appellant. Harold Wellington RAPP, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1156

539 F.2d 1156

UNITED STATES of America, Appellee, v. Harold Wellington RAPP, Appellant.

Harold Wellington RAPP, Appellant, v. UNITED STATES of America, Appellee.

Nos. 75-1923, 75-1964.

United States Court of Appeals Eighth Circuit.

Submitted May 10, 1976.

Decided July 29, 1976.

John M. Thompson, University of Iowa, College of Law, Iowa City, Iowa, for appellant; Robert N. Clinton and Charles A. Pulaski, Jr., University of Iowa, College of Law, Iowa City, Iowa, on briefs.

Keith Van Doren, Asst. U. S. Atty., Sioux City, Iowa, for appellee; Evan L. Hultman, U. S. Atty., and Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, on briefs.

Before VOGEL, Senior Circuit Judge, and HEANEY and HENLEY, Circuit Judges.

HEANEY, Circuit Judge.

This Court has consolidated two appeals by Harold Wellington Rapp. In No. 75-1964, he contends that the District Court erred in denying his motion to vacate sentence pursuant to 28 U.S.C. § 2255 without benefit of an evidentiary hearing. We remand. In No. 75-1923, he contends that the District Court erred in denying his motion for summary and declaratory judgment in which he alleged that an automobile had been illegally seized and forfeited by the United States. The District Court held that it lacked jurisdiction. We affirm.

I. Motion to Vacate Sentence.

Following a plea bargain agreement made outside of Rapp's presence between the government and his counsel, Rapp changed his not guilty plea to guilty on charges of bond-jumping, conspiracy and counterfeiting. He was sentenced to five-years imprisonment on each of the first two charges, the sentences to run concurrently with each other and with a sentence of fifteen years on the counterfeiting charge. Thereafter, Rapp moved to vacate the sentences on the grounds that they were not in accord with the plea bargain agreement. The District Court denied the motion without holding an evidentiary hearing. Rapp contends on appeal that 28 U.S.C. § 2255 requires the court to grant such a hearing:

unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. (Emphasis added.)

Rapp alleges, in the alternative, that either the government broke its plea bargain agreement with him or that his counsel misled him as to the terms of that agreement. He claims that he changed his plea on the basis of his counsel's statement that the government had agreed to move for dismissal of other pending charges against him and to recommend to the court that he serve no more than ten years in prison on the three charges to which he pled guilty. He contends that the motion, files and record do not conclusively set forth the terms of the agreement and, hence, he is entitled to an evidentiary hearing under § 2255.

The government alleges that its agreement with Rapp's counsel was that it would move the court to dismiss the other charges and that it would recommend to the parole board and not to the court that Rapp serve no more than ten years. It contends that the files and records conclusively show that Rapp is not entitled to relief and, hence, an evidentiary hearing was not required because: (1) the transcript of Rule 11, Fed.R.Crim.P. hearing ¹ demonstrates that neither Rapp nor his counsel objected to the terms of the plea agreement as set forth by the government; (2) neither Rapp nor his counsel objected when the government stood mute on the question at the sentencing hearing; (3) when Rapp was contemplating a direct appeal, in a letter to the Deputy Clerk for the Northern District of Iowa, Rapp set forth six grounds for appeal, none of which mentioned the allegation before the court; (4) Rapp did not contend that the plea bargain agreement was breached when he filed pro se motions with the District Court to reduce sentence; ² and (5) the plea bargain issue was not raised until Rapp filed his § 2255 motion nearly six months after sentence was imposed and after the failure of his other post-sentencing motions.

We are convinced that the government has failed to establish conclusively that Rapp is not entitled to relief. Standing alone, the fact that Rapp now contradicts the statement he made at the Rule 11 hearing and the fact that the allegations he makes in his § 2255 motion go beyond the subjects covered in a Rule 11 hearing would not be sufficient basis for requiring a hearing. Crawford v. United States, 519 F.2d 347, 350 (4th Cir. 1975). See also Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). The key factor that requires the District Court to hold an evidentiary hearing is the government's admission that the entire plea bargain agreement was not spread on the record.

The court asked the government's counsel if there has been a plea bargain. The government's counsel set forth the terms of the agreement, but those terms as set before the court did not include either a promise to recommend a ten-year sentence to the parole board or a promise to recommend a ten-year sentence to the court. The government claims that its agreement with Rapp's counsel was to make a recommendation to the parole board. Rapp claims that the government agreed to make a recommendation to the court or that his counsel misinformed him as to the terms of the agreement. The District Court could not rely on the record of the Rule 11 hearing to resolve this conflict conclusively for the government admits that hearing is not a complete record of its agreement.

The additional evidence of the government is persuasive but it is not conclusive, and Congress has mandated a hearing unless it is shown conclusively that Rapp is not entitled to a hearing. Government's counsel may have lied, Rapp's counsel may have lied or Rapp may be lying. Cf. United States v. Valenciano, 495 F.2d 585 (3rd Cir. 1974). We cannot say with certainty on the motions, files and record of this case. We remand this matter for action not inconsistent with this opinion.

II. Motion for Summary and Declaratory Judgment.

This appeal concerns Rapp's attempt to have the government either return his 1966 Newport Chrysler automobile or pay him $1,500.00. Rapp was arrested in Cedar Rapids, Iowa, on counterfeiting charges on December 5, 1974. He posted bond on December 18, 1974, and was released. On January 3, 1975, he jumped bond and fled the state. He was recaptured and pled guilty to the counterfeiting charges on April 15, 1975, and was sentenced on May 2, 1975.

In the meantime, Secret Service agents seized Rapp's vehicle on December 6, 1974, for forfeiture on the grounds that it had been used in transporting and issuing counterfeit money. The vehicle was turned over to the District Director of Customs, Chicago, Illinois, and stored at the GSA garage, Fort Des Moines, Iowa, pending completion of the forfeiture proceedings. The District Director mailed statutory notice to Rapp on December 30, 1974, in which Rapp was advised that the District Director had custody of the vehicle and that certain petition rights existed for relief from forfeiture. The notice was returned undelivered because Rapp had jumped bond and was residing in parts unknown.

Since the vehicle was appraised at $249.00, summary forfeiture proceedings were initiated on May 19, 1975, by posting notice at the Customs office in Chicago. ³ The notice stated that the vehicle would be forfeited unless, within twenty days, the forfeiture was contested. On June 9, 1975, no one having come forward, the vehicle was held forfeit.

Rapp, unaware of the District Director's action, filed a motion on May 12, 1975, for return of the vehicle or payment, alleging that the agents had illegally seized the vehicle. Although the court had already accepted Rapp's guilty plea and sentenced him, the court chose to treat the motion as one under Rule 41(e), Fed.R.Crim.P. On June 13, 1975, the court ordered the government to return the vehicle or show cause by June 20, 1975. The government did neither.

The Customs Service learned about the order on July 21, 1975, and informed Rapp, through his attorney, that the vehicle had been forfeited prior to the court's order. The Customs Service sold the vehicle to the highest bidder for $305.00 on September 18, 1975.

Undeterred, Rapp filed a motion on October 16, 1975, to enforce the June 13, 1975, motion. The court again ordered the government to return the vehicle or show cause by November 21, 1975. The government filed a resistance and the court, on November 24, 1975, vacated its earlier orders and denied Rapp's motions. That same day, Rapp filed a motion for summary and declaratory judgment. The government filed a resistance and the court, on December 11, 1975, denied Rapp's motion on the grounds that it lacked jurisdiction. We agree.

Rapp contends that the seizure of his vehicle was illegal and that the court erred in holding that it lacked jurisdiction to entertain his motion. He argues that the court had jurisdiction under either Rule 41(e), Fed.R.Crim.P., or the court's general equity jurisdiction. He also contends that the forfeiture proceedings were constitutionally defective in that he was not given proper notice.

The District Court was clearly in error when it originally entertained Rapp's motion for the return of the allegedly illegally-seized vehicle under Rule 41(e), Fed.R.Crim.P. The court, subsequently, quite properly denied Rapp's motion for lack of jurisdiction.

Rapp's vehicle was seized and forfeited pursuant to 49 U.S.C. §§ 781 and 782. Section 781(a) provides that it shall be unlawful to transport any contraband article in any vehicle, and subsection (b)(3) defines contraband to include counterfeit currency. Section 782 provides that a vehicle which has been used in violation of § 781 shall be seized and forfeited.

The seizure and forfeiture of Rapp's vehicle is in the nature of an in rem libel action against the vehicle itself that is used in violation of § 781. Such an action is not a criminal action but a...