United States v. Colson

• Decision Date: 23 June 1964
• Citation: 230 F. Supp. 953
• Parties: UNITED STATES of America, v. Jesse COLSON, Defendant.
• Court: U.S. District Court — Southern District of New York

230 F. Supp. 953

UNITED STATES of America, v. Jesse COLSON, Defendant.

United States District Court S. D. New York.

June 23, 1964.

Robert M. Morgenthau, U. S. Atty., for Southern District of New York, New York City, William J. Quinlan, Asst. U. S. Atty., of counsel, for United States of America.

S. Edmund Resciniti, Jr., Brooklyn, N. Y., for defendant.

WEINFELD, District Judge.

Petitioner, Jesse Colson, moves pursuant to 28 U.S.C., section 2255, to vacate a judgment of conviction entered upon his plea of guilty on the ground that it was not voluntarily entered, and upon the further ground that he was not afforded, as required by Rule 32(a) of the Federal Rules of Criminal Procedure, the right of allocution to present information in mitigation of punishment, a matter of substance, he contends, in view of the particular facts of his case. Various other grounds are alleged in the petition in support of the motion, but testimony upon the hearing was offered only as to these issues.

This application presents another aspect of a case wherein the Supreme Court recently reversed the judgment of conviction of one of petitioner's codefendants, Winston Massiah, entered upon a jury verdict.¹ The reversal stemmed from the cooperation of Colson, the petitioner herein, with Government agents who, through surreptitious means, were enabled to listen in on a conversation between Colson and Massiah, during which the latter made incriminating statements. The Supreme Court struck down Massiah's conviction on the ground that he had been deprived of his constitutional right to counsel by the use against him upon the trial of his own incriminating statements which had been deliberately elicited from him by Colson while he, Massiah, was under indictment and in the absence of his counsel. Reference is made to Colson's participation in that event, since it is of some significance on this motion. It has bearing upon his contention that he was in a state of fear when he entered his plea of guilty, upon his claim that the denial of an opportunity at the time of sentence to urge upon the Court his cooperation with Government officials was to his prejudice, and upon the Government's position, now minimizing his cooperative activities as of "negligible value," in explanation of its failure to advert to them at the time of sentence.

Petitioner was the sole witness in support of his application. In opposition, the Government relied principally upon the testimony of the Assistant United States Attorney who was in charge of the trial of the case (hereafter referred to as the trial assistant), his superior, who was in charge of the Narcotics Bureau of the United States Attorney's office (hereafter referred to as the chief assistant), a customs agent, who participated in the investigation that led to the indictment of petitioner and others, and Colson's own attorney.² With respect to a number of vital matters, the testimony of the Government witnesses was vague and at times contradictory, so much so that when one of them indicated lack of recollection of events, the Court commented: "The whole record already is pretty much strewn with contradictions and vague recollections and uncertainties." To be sure, there are some contradictions in petitioner's case, as well as the Government's, but upon the entire record and against the background of events hereafter referred to, and after observing the demeanor of the witnesses, the Court is persuaded that the petitioner has sustained his burden of proof that the plea was entered contrary to the requirements of Rules 11 and 32(a).³

The determination of the ultimate question of whether the defendant, at the time he pled guilty, had the free will essential to a reasoned choice, rests upon probabilities and, of course, cannot be resolved with mathematical certainty. It involves an evaluation of psychological and other factors that may reasonably be calculated to influence the human mind. The issue of the defendant's state of mind "is to be decided by the trier of the fact, whether court or jury, just as any other fact issue — the reasonable inferences to be drawn from all the surrounding facts and circumstances."⁴ Accordingly, it is necessary to consider the plea of guilty against the totality of events and circumstances which preceded its entry.⁵

In July, 1959 Colson was indicted with Massiah for violation of the Federal narcotics laws. He was held in $10,000 bail, in default of which he was committed. While confined, he was urged to cooperate with Government officials by two customs agents, who were engaged in a continuing investigation, and after several days Colson agreed, whereupon his bail was reduced and he was released upon posting the bail. Then began an almost two-year period of cooperation with the customs agents and Assistant United States Attorneys, which included informing on codefendants, procuring information from potential defendants, who later were indicted, travelling aboard vessels and informing on seamen suspected of bringing narcotics into the country, as well as the specific conduct which led to the reversal in the Massiah case.

After almost a year and a half of continued cooperation, Colson testified before a grand jury which, in March 1961, returned a multi-count indictment against him, Massiah, and ten other defendants. In addition to substantive counts naming one or more defendants, the indictment contained a conspiracy count naming all the defendants. Colson was charged in four counts, three of which carried a five-year mandatory minimum sentence under the Federal Narcotics Control Act; the fourth was a so-called tax count, under which a court is vested with discretion to suspend sentence, or to impose a minimum two-year sentence if a prison term is indicated.⁶ Colson, as well as all other defendants, pleaded not guilty.

Colson's services as an informer became known to one or more of his co-defendants at or about the time the grand jury returned the indictment. He and his family were threatened directly and through a series of telephone calls. They were given protection by the Government; he was guarded by surveilling agents; his children were escorted to and from school by agents; his telephone number was changed to prevent threatening incoming calls.

During the trial preparation period Colson advised the trial assistant that he feared for his life and the safety of his family if he testified in open court against his codefendants. Notwithstanding his concern, the prosecution staff pressed him to testify; in the words of the trial assistant, "we were attempting to exercise all kinds of persuasion on Colson to continue his cooperation * * * and be a witness." He was given assurances that continued protection would be afforded to him and the members of his family. In the effort to reassure him, he was told that if he did testify he would be in no real danger, because threats are carried out only upon prospective witnesses and not upon those who have already given their testimony. But more important, the trial assistant, whose recollection on this subject differs from that of other officials, admitted that the possibility of a plea to the tax count and the Court's power thereunder to suspend sentence was discussed. The pretrial efforts to induce petitioner to testify extended over a period of several weeks, up to June 13, 1961, when the trial was to commence before a visiting judge. During this period of persuasion, his lawyer was not present at any of the numerous conferences. It should be added, however, that previously, when Colson admittedly was cooperating, his meetings with members of the prosecution staff and other Government agents were with his and his counsel's consent.

When the case was called for trial on the morning of June 13th, the defendant's case was severed from that of his codefendants on the Government's motion. The trial then commenced against the other defendants and the entire morning was taken with jury selection and opening statements. Colson, at the hearing on this motion, testified that he had informed the trial assistant he would not testify because of his continued apprehension. The trial assistant acknowledged there was "no doubt Colson was scared stiff," but because he wavered and vacillated as to whether or not he would testify, decided to call Colson to the witness stand at the afternoon session. He refused to be sworn, stating he would not testify because his family had been threatened, whereupon the Court instructed him to raise his hand and take the oath, which he did. Defense counsel moved for a mistrial, which was denied. Colson then testified as to his occupation and sailings on board vessels. When questioned as to a meeting with Massiah, he answered, "Gee, I can't go on with this. My kids, and my wife and my life are at stake." The Court directed him to answer, but he responded, "I can't go on like this. Could I take the Fifth Amendment?" He asked to talk to his lawyer, who was not present, having left the courtroom that morning after the motion for severance had been granted.⁷ The Court suggested that Government counsel communicate with Colson's lawyer, and Colson was excused and apologized to the Court, again stating he was "afraid." Another witness was called who, at a given point, also refused to answer a specific question. The Court then adjourned the trial until the following morning, June 14th. All defendants were remanded on the basis of Colson's statement before the jury that he had been threatened. A second motion for a mistrial was denied.

The reaction to this turn of events by the Assistant United States Attorneys and the customs agents, understandably enough, was not exactly one of friendliness or kindly disposition to Colson; the atmosphere was charged with excitement and turmoil. As variously described, they were angry, incensed, mad, disgusted and frustrated. But this did not deter them from renewed and...