United States v. Cariola, 14347.

• Decision Date: 03 October 1963
• Docket Number: No. 14347.,14347.
• Citation: 323 F.2d 180
• Parties: UNITED STATES of America, Respondents, v. Sammy CARIOLA, Petitioner-Appellant.
• Court: U.S. Court of Appeals — Third Circuit

323 F.2d 180 (1963)

UNITED STATES of America, Respondents, v. Sammy CARIOLA, Petitioner-Appellant.

No. 14347.

United States Court of Appeals Third Circuit.

Argued June 20, 1963.

Decided October 3, 1963.

John W. Condon, Jr., Buffalo, N. Y. (Condon, Klocke, Ange & O'Donnell, Buffalo, N. Y., Salvatore J. Avena, Camden, N. J., on the brief), for appellant.

Ralph J. Kmiec, Asst. U. S. Atty., Camden, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.

Before BIGGS, Chief Judge, STALEY, Circuit Judge, and STEEL, District Judge.

STEEL, District Judge.

In 1938 petitioner served a 24-hour sentence imposed by the District Court of New Jersey after pleading guilty to a "technical violation" of the Mann Act, then 18 U.S.C. § 398, now 18 U.S.C. § 2421. In 1962 he filed in the same court a verified document styled "Petition for a Writ of Coram Nobis" which prayed that the conviction and sentence be vacated. The petition alleged that petitioner originally pleaded "not guilty" and had gone to trial, that after the Government had rested, although petitioner was of the belief that the Government had failed to adduce any evidence of his guilt, he withdrew his plea of "not guilty" and entered a "technical plea of guilty", that he did this upon the advice of the Court and his attorney, and with the assurance of the Court that only a 24-hour sentence would be imposed. The petition further alleged that the petitioner did not enter the plea intelligently, understandingly, or competently, that he believed that the plea was without legal significance and merely a means of terminating the proceedings, that the conviction has been a source of embarrassment and loss of prestige to petitioner as a responsible citizen and union leader, and that if petitioner had fully realized the consequences of the plea, he would not have entered it. The petition was supported by an affidavit of Louis H. Wilderman, his trial attorney, which stated that at the time of the plea he had tried only about five criminal and ten civil cases, and that if he had understood that the petitioner was admitting full, as distinct from technical guilt, he would have urged that the trial be continued.

While neither the petition nor the Wilderman affidavit allege any constitutional violation, it is clear from the briefs that it is petitioner's claim that he was convicted and sentenced in violation of the due process clause of the Fifth Amendment.

The District Court held a hearing at which the petitioner and Wilderman testified and the Clerk's notes and docket entries pertaining to the case were introduced in evidence. Upon this record the District Court rendered an opinion in which it found that petitioner's plea had been entered with sufficient knowledge and adequate advice, United States v. Cariola, 211 F.Supp. 423 (D.N.J.1962), and entered an order denying the relief sought. This appeal followed.

A document substantially like that filed by petitioner has been characterized as a motion in the nature of a writ of error coram nobis and has been held to be an appropriate means in a proper case to obtain the vacation of a conviction and sentence after sentence has been served. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954).

At the outset the Government asserts that the case is moot. It is true that the petition on its face presents no justiciable controversy. Although the petition alleges that the plea was not entered competently or understandingly and was never intended as a plea of actual guilt to the crime charged, the only consequence alleged is the petitioner's embarrassment and loss of prestige. This is not enough to justify a judicial determination of petitioner's rights. The moral stigma of a judgment which affects no legal rights presents no case or controversy of federal cognizance. St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943).

The jurisdictional deficiency of the petition, however, was cured by the proof. At the hearing the petitioner testified that he had been living in Buffalo, New York since 1954 and that because of the position of leadership which he occupied in union affairs, it was particularly important that he participate in political activities. He stated that under the laws of New York his conviction in 1938 makes it a crime for him to vote. New York Penal Law, § 510 — a, which makes it a criminal offense for a person who has been convicted of a felony to vote, has been in effect during the period of petitioner's residence in New York. See also § 152(4) of the New York Election Law. Thus, the judgment of conviction, although satisfied, has affected and continues to affect petitioner's legal rights. The validity of the conviction, therefore, is not moot. A case cannot be said to be moot when a conviction entails collateral legal disadvantages which survive the satisfaction of the sentence. Government of Virgin Islands v. Ferrer, 275 F.2d 497, 499 (3d Cir., 1960). One may challenge a satisfied judgment of conviction when it has been the basis for a second offender sentence under a later conviction, United States v. Morgan, supra; or has subjected an alien to deportation proceedings, Fishwick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946); or, as here, may bar the exercise of voting rights, Kyle v. United States, 288 F.2d 440 (2d Cir., 1961).

The Government asserts that there is no evidence that petitioner's conviction has in fact deprived him of his right to vote in New York. The attempt of the Government to cross examine petitioner on his voting activities was thwarted by the Court when it sustained the petitioner's Fifth Amendment refusal to answer upon the ground that it might tend to incriminate him. Whether plaintiff actually voted in New York is not relevant to the present question. If petitioner has voted, he has done so illegally; and so long as his conviction stands, it will continue to bar him from lawfully exercising one of his most important rights as a citizen. This is sufficient to make the validity of the conviction a justiciable question.

Nor is there merit to the Government's position that the plaintiff is barred from relief because he has delayed 24 years in seeking it. If petitioner has been denied a fundamental constitutional right, the passage of time will not preclude him from relief. The writ of error coram nobis was available at common law "without limitation of time." United States v. Morgan, supra, 346 U.S. p. 507, 74 S.Ct. p. 250; Farnsworth v. United States, 98 U.S.App.D.C. 59, 232 F.2d 59, 63, 62 A.L.R.2d 1423 (1956). Although the passage of many years will not cure a conviction if it is void, a defendant who, knowing of his right to relief from a conviction, waits to apply for it until all witnesses have died, will have a heavy burden of proof with respect to the facts on which the relief must rest. United States v. Morgan, 222 F.2d 673, 675 (2d Cir., 1955); Farnsworth v. United States, supra, 232 F.2d p. 63. Here, petitioner did not unreasonably delay seeking relief. It was not until 18 months before his petition was filed that he first learned, as a result of advice from his present attorney, that he had been convicted of a felony and not a misdemeanor.

This brings us to the merits of the case. In September 1937 the petitioner and three others were indicted by the Grand Jury of the District of New Jersey for violating the Mann Act. On November 5, 1937 petitioner pleaded not guilty. On January 24, 1938 petitioner was tried separately from his co-defendants before Judge Avis. He was then represented by Louis H. Wilderman, Esquire. After the Government rested its case, Judge Avis called the petitioner, his attorney, and the United States Attorney to the bench. According to the petitioner:

"He Judge Avis then said to the U. S. Attorney that he didn\'t think that the government has proved its case and he then turned to me and he said, `I think under the circumstances there is a minor violation here, a technical violation, and my advice to you would be to change your plea to a technical plea of guilty, and if you do that I will sentence you to 24 hours in the custody of the U. S. Marshal.\'"

Wilderman testified:

"Judge Avis called us up to the bench at the time and he indicated primarily that he didn\'t think it was much of a case there by the government; that at the most this was the most technical violation possible that you could think of; * * So Judge Avis said, he suggested that we should enter a technical plea of guilty, and if so, he said, `Just let him sit in the courtroom for the rest of the day and that will be it and he can go home.\'"

This is the only evidence of what transpired.¹

Following the side bar discussion, the petitioner and Wilderman retired and consulted for a few moments. Wilderman advised the petitioner to take Judge Avis' advice. Petitioner then withdrew his prior plea of not guilty. The testimony is conflicting as to precisely what plea was entered. Wilderman said that petitioner pleaded "a technical plea of guilty". Petitioner said, "I plead to a technical violation of the Mann Act". Both the docket and notes kept by the Clerk disclose that the petitioner pleaded "guilty", and that by Court order the "plea (was) entered as a technical one".² Later, the same day, Judge Forman sentenced the petitioner to one day in the custody of the Marshal. Petitioner served the sentence by sitting in the back of the courtroom for a short time.

The petitioner testified that when he entered his plea he understood that he was pleading to something very minor, that he felt that he was not guilty of the crime, and that he was not pleading 100% to a violation of the Mann Act, but only to its technical violation. According to petitioner, his only activities were the receipt of a phone call while working as a waiter in a nightclub at Atlantic City from a person in Philadelphia requesting him to...