U.S. v. Unger, 82-1816

• Decision Date: 18 February 1983
• Docket Number: No. 82-1816,82-1816
• Citation: 700 F.2d 445
• Parties: UNITED STATES of America, Appellee, v. Crystal Marie UNGER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 445

700 F.2d 445

UNITED STATES of America, Appellee, v. Crystal Marie UNGER, Appellant.

No. 82-1816.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 9, 1982.

Decided Feb. 18, 1983.

Gary J. Shea, Shea, Spande & Shea, Cedar Rapids, Iowa, for Crystal Marie Unger, appellant.

Robert L. Teig, Asst. U.S. Atty., N.D. of Iowa, Cedar Rapids, Iowa, for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

LAY, Chief Judge.

On July 20, 1977, Crystal Marie Unger and her husband Robert Ellis Unger both pleaded guilty in federal district court to the crime of kidnapping under 18 U.S.C. Sec. 1201(a) (1976). They both were given a 50 year sentence. Crystal Marie Unger brings this appeal from the district court's denial of her motion to vacate her sentence pursuant to 28 U.S.C. Sec. 2255 (1976).

On December 11, 1976, the Ungers were in Waterloo, Iowa, visiting Vicky Howard, a woman who at one time had been married to Crystal Unger's first husband. Vicky had planned to go out for the evening and it was agreed that the Ungers would baby-sit her two-month-old son, Ricky Joe, at their motel. Both Vicky and Crystal Unger testified that Vicky had taken care of Crystal's children in the past, and Vicky further testified that Crystal had baby-sat for her previously without any problem. The government contends that Vicky and Crystal agreed that the baby was to be returned the following day. Crystal denies that there was any such understanding. She claims that she told Vicky she could not baby-sit because she was leaving the state and Vicky replied: "I don't care. Take him with you." The baby was not returned the next day and Vicky reported the baby as missing.

The Ungers left Waterloo on December 11, and traveled to Dubuque, Iowa, where they had the baby examined at a hospital because he was wheezing. They then traveled through Illinois and south and west to California in a stolen rental car, using false names and continually defrauding churches and welfare agencies. In California they traded the stolen car for a used car and drove to Salt Lake City, Utah, where they stole another rental car. While in Salt Lake City, on January 2, 1977, the Ungers sought medical treatment for the Howard baby at a hospital. Robert Unger testified that an injury occurred to the baby when he was tossing the infant in the air and dropped him on an iron bed rail. ¹ The infant's scrotum had been torn open and his testicles were injured. Surgery was performed and the baby was discharged three days later.

On January 10, 1977, the Ungers returned to Waterloo. They placed Ricky Joe and his belongings in a taxicab and gave the driver the fare and the address of the baby's mother, with instructions to return Ricky Joe directly to her. The Ungers then continued their travels for another month until they were arrested in Mason City, Iowa, on February 7, 1977.

The State of Iowa charged Robert and Crystal Unger with child stealing and held a preliminary hearing to determine probable cause. A Waterloo attorney, Don Gottschalk, was appointed to represent both defendants. Federal kidnapping and transporting stolen motor vehicle charges were then filed and the state prosecutor dismissed the state charges to allow prosecution under federal law. Gottschalk continued to represent both Robert and Crystal Unger in all the federal proceedings.

At her formal arraignment Crystal Unger pleaded not guilty to each count. The trial of both Robert and Crystal was set to begin on July 20, 1977. On the day of trial, after the jury was sworn, Gottschalk presented the Ungers with the government's offer of a plea bargain and advised them to accept it. Crystal Unger testified that she and Robert agreed to the plea bargain, then changed their minds, and Gottschalk told them it was too late to change. Crystal and Robert agreed to plead guilty to the kidnapping charge and Robert additionally agreed to plead guilty to one count of transporting a stolen vehicle in interstate commerce. Their pleas were accepted at the change of plea hearing held the same day. At that hearing the district court told them that imprisonment for any term of years or life was the maximum punishment possible for the kidnapping charge.

On August 25, 1977, the court held a sentencing hearing, at which Gottschalk spoke on behalf of each defendant separately and urged leniency. Crystal's age, lack of prior criminal activity, and background were mentioned. The court sentenced Crystal to a fifty-year term of imprisonment for the kidnapping charge and sentenced Robert to a fifty-year term for kidnapping with a concurrent five-year term for the stolen vehicle charge. The remaining counts were dismissed and no appeal from the sentence was taken.

Thereafter, Robert filed a series of section 2255 motions to reduce, modify, or vacate sentence, or to request other relief, usually on behalf of both himself and Crystal. His last motion to vacate sentence was treated by the district court as a motion for relief for himself only and we affirmed the district court's denial of the motion. United States v. Unger, 635 F.2d 688, 689 (8th Cir.1980).

Crystal filed a section 2255 motion to vacate sentence on her own behalf on January 11, 1978, and the motion was dismissed without hearing. ² Crystal filed the present section 2255 motion on June 2, 1980, and raised some grounds different from those raised in her earlier motion. ³ The district court denied her motion without a hearing on September 12, 1980, and Crystal appealed to this court. We reversed the district court's decision and remanded for an evidentiary hearing concerning the voluntariness of her guilty plea and whether she had knowingly waived her right to separate representation. United States v. Unger, 665 F.2d 251 (8th Cir.1981) (Unger I ).

Magistrate Hodges held the evidentiary hearing on February 5, 1982, and, as we will discuss, made certain recommended findings. The district court modified the magistrate's findings and denied Crystal's motion, holding that there was no actual conflict of interest and that Crystal had waived her right to have separate counsel. Crystal has now once again appealed to this court. Upon review we find that the district court erroneously interpreted our decision in Unger I; we reverse and remand for new sentencing proceedings.

1. Voluntariness of the Plea.

Crystal claims that attorney Gottschalk told her if she pleaded guilty she would be given probation and if she insisted on standing trial she would probably get the death penalty. In Unger I we found Crystal's allegations were not conclusory or wholly incredible and we remanded to allow her the opportunity to substantiate her claims. See Blackledge v. Allison, 431 U.S. 63, 74-76, 97 S.Ct. 1621, 1628, 52 L.Ed.2d 136 (1977); Machibroda v. United States, 368 U.S. 487, 495-96, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962). ⁴

At the evidentiary hearing, the only evidence Crystal offered to substantiate the alleged promise of probation was her testimony and her affidavit filed with this court in Unger I. Her testimony is inconsistent with her own previous statements. In her section 2255 motion filed on January 11, 1978, she stated all the terms and conditions of the plea bargain as: "All counts would be dropped except Kidnapping." There was no mention of probation. In a letter to Judge Edward J. McManus, filed September 11, 1978, Crystal stated that she pleaded guilty only because her attorney said she would be given five years. There is nothing in the letter about probation. Finally, in her section 2255 motion filed in 1980, Crystal does not mention that she was promised any particular sentence in consideration for a guilty plea. ⁵

Further, attorney Gottschalk testified that no promise of a particular sentence was made. His testimony is consistent with his statement about the terms of the plea bargain made at the change of plea hearing. The magistrate found Gottschalk's testimony to be credible and found Crystal Unger's testimony could not be believed. We are satisfied that the magistrate's findings on credibility are supported by the record and agree with his conclusion that Crystal's claim of a promised sentence is without support.

The evidence is also conflicting regarding the alleged threat of the imposition of the death penalty. Crystal asserts that Gottschalk was unaware that the death penalty could no longer be imposed for a conviction pursuant to the kidnapping statute. ⁶ 6] Crystal further states that she wrote Gottschalk a letter in May 1980 to ask him whether the possibility of the death penalty was the only reason they decided she should plead guilty. He responded on May 23, 1980, in a letter stating: "the death penalty possibility was, obviously, a consideration in any decision to enter a guilty plea." Although this letter lends credence to Crystal's claim, there is much evidence to the contrary.

Gottschalk filed an affidavit in which he swore that he had not reviewed his files when he responded to Crystal's letter and that the reference to the death penalty was a misstatement. He further swore that he had at no time discussed the death penalty with Crystal. Upon reviewing his files Gottschalk stated that he had a copy of the kidnapping statute containing language that life imprisonment was the maximum penalty. Also, at the sentencing hearing Gottschalk stated that life imprisonment was the maximum punishment for kidnapping. Although Gottschalk's testimony at the evidentiary hearing regarding his letter was not totally consistent with his affidavit, the magistrate found his testimony and explanation credible and found Crystal's testimony on this issue not credible. The magistrate also relied on the district court's examination of Crystal at the change of plea hearing, at which the court asked if the plea were the result of any threats or promises and the defendants answered negatively. See Blackledge v....