United States v. Cravatas, Crim. No. 12721.

• Decision Date: 15 April 1971
• Docket Number: Crim. No. 12721.
• Citation: 330 F. Supp. 91
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. George C. CRAVATAS.

330 F. Supp. 91

UNITED STATES of America v. George C. CRAVATAS.

Crim. No. 12721.

United States District Court, D. Connecticut.

April 15, 1971.

Stewart H. Jones, U. S. Atty., Leslie Byelas and Barry J. Cutler, Asst. U. S. Attys., Bridgeport, Conn., for government.

J. Daniel Sagarin, Bridgeport, Conn., for defendant.

TIMBERS, Chief Judge.

QUESTION PRESENTED

The motion by defendant George C. Cravatas, Esq., to withdraw his plea of nolo contendere and to set aside his judgment of conviction, Rule 32(d), Fed. R.Crim.P., presents the question whether an attorney, who is a member of the bar of this Court, after pleading nolo contendere to, and the Court having found him guilty of, a charge of willful failure to file his federal income tax return, 26 U.S.C. § 7203 (1964), and after having been sentenced to the maximum term of imprisonment and having been ordered to pay the maximum fine, should be permitted to withdraw his nolo contendere plea, chiefly upon defendant's representation that his attorney (formerly a trial attorney with the Criminal Frauds Section of the IRS) had told him he would not be incarcerated as a result of his plea — a representation flatly denied by the said attorney.

After an evidentiary hearing, and upon the basis of the findings of fact, conclusions of law and opinion hereinafter set forth, the Court holds that defendant should not be permitted to withdraw his plea. Defendant's motion is denied.

FINDINGS OF FACT

(1) On February 4, 1970, a grand jury in the District of Connecticut returned an indictment charging defendant with three counts of willful failure to file his federal income tax returns for the calendar years 1963, 1965 and 1966, in violation of 26 U.S.C. § 7203 (1964).¹

(2) On March 9, 1970, defendant pleaded not guilty to each of the three counts.

(3) During the seven to eight month period following defendant's plea of not guilty on March 9, 1970, he had numerous conferences with representatives of the IRS and of the United States Attorney's office; and during this period defendant was in contact with or had the assistance of no less than four attorneys of his own choosing (not including, of course, the attorney currently representing defendant on the instant motion).

(4) On October 26, 1970, while represented by retained counsel, John J. Lokos, Esq., defendant requested and was granted permission to change his not guilty plea to count two (willful failure to file his 1965 return) to a plea of nolo contendere, after which the Court made a finding that defendant was guilty of the crime charged in count two. The official court reporter's transcript of the change of plea proceedings before the undersigned on October 26, 1970 is attached hereto as APPENDIX A.

(5) The transcript of the change of plea proceedings on October 26, 1970 (APPENDIX A), to the extent relevant to the issues on the instant motion, shows the following:

(a) The Court first addressed defendant personally, and in fact specifically requested that defendant step forward.

(b) Defendant stated he had been furnished with a copy of the indictment and was fully aware of the charges set forth therein against him.

(c) Defendant stated he understood, if the Court accepted his nolo contendere plea to count two, that the Court thereupon would make a finding of guilty based on that plea.

(d) Defendant stated he understood that the Court could impose a maximum sentence of one year in prison and/or a $10,000 fine.

(e) Defendant stated that no one — including his lawyer or anyone connected with the government — had given or promised him anything to induce him to plead nolo contendere to count two; except that the government had stated on the record that it intended to move to dismiss counts one and three at the time of sentencing.

(f) Defendant stated that, as a lawyer himself familiar with the law and as a result of conferences with his retained lawyer, Attorney Lokos, he freely acknowledged the factual basis for his admission that he did commit the offense charged against him in count two; and, in response to the Court's questions, defendant specifically admitted each of the essential elements of the crime charged viz:

(i) That he was required to file a United States individual income tax return for the calendar year 1965.

(ii) That he failed to file a timely tax return for that year.

(iii) That his failure to file a timely tax return for that year was done knowingly and willfully.

(g) Government counsel stated, in response to the Court's question, that, absent defendant's plea of nolo contendere and the Court's finding of guilty to be entered thereon, the government would be in a position to prove beyond a reasonable doubt each of the essential elements of the offense charged in count two; and defendant specifically stated, before entering his nolo contendere plea, that he understood that the government was in a position to so prove its case.

(h) Finally, the Court addressed the following question to defendant and he responded as indicated:

"THE COURT: And finally, I will ask whether in the event the Court accepts your plea of nolo contendere to count two, whether you wish the Court to understand that such plea is entered by you freely, voluntarily, with full acknowledgment of the fact that you did commit the offense charged in count two, including the essential elements of that offense which I have just asked you about, and do you further wish the Court to understand that you enter your plea of nolo contendere with full appreciation and understanding that the Court may impose punishment upon you within the statutory limits that I have indicated to you?

DEFENDANT CRAVATAS: I do, your Honor."

(i) Thereupon, the Court ordered that defendant's not guilty plea to count two be erased; and defendant pleaded nolo contendere to that count.

(j) The Court after accepting defendant's nolo contendere plea and ordering it recorded, made a finding of guilty, stating that "... the Court does hereby find, in accordance with Rule 11 of the Federal Rules of Criminal Procedure, and more specifically in accordance with the practice of this Court established by the decision in United States v. Steele, opinion by Honorable J. Joseph Smith, Second Circuit, on June 9, 1969, that there is a factual basis for the finding of guilty ...."

(6) On January 11, 1971, following a pre-sentence investigation and report, and while represented by Attorney Lokos, defendant was sentenced upon count two to the maximum of one year in prison and to pay the maximum fine of $10,000 within 10 days. The official court reporter's transcript of the sentencing proceedings before the undersigned on January 11, 1971 is attached hereto as APPENDIX B.

(7) To date the fine has not been paid. No stay of execution thereof has been requested or granted. See APPENDIX B.

(8) At the time of sentencing on January 11, 1971, counts one and three were dismissed upon motion of the government,² in accordance with the representation made by government counsel on the record at the time defendant changed his plea on October 26, 1970. APPENDIX A.

(9) At the time of imposition of sentence on January 11, 1971, neither defendant nor his counsel in any way protested what is now alleged to be the severity of the sentence; and nothing whatsoever was said, immediately following the imposition of sentence, along the lines of defendant's present claim that he had not expected to be incarcerated.

(10) Immediately after imposition of sentence on January 11, 1971, defendant, through his counsel, did request and obtain a one week stay of execution of the sentence of imprisonment to enable defendant to "put his affairs in order". APPENDIX B. He was ordered to surrender on January 18, 1971 at 12 noon.

(11) On January 18, 1971, instead of surrendering as ordered a week earlier, defendant, by his counsel, filed in the District Court a Notice of Appeal from the sentence imposed on January 11, 1971, attached hereto as APPENDIX C, together with a Motion To Stay Execution and Brief In Support of Motion, attached hereto as APPENDIX D.

(12) The brief in support of defendant's motion to stay execution (APPENDIX D) set forth the following alleged "very substantial questions of law" to be determined on his "appeal":

(a) The sufficiency of the indictment.

(b) The failure of the Court to provide to the defendant-appellant's counsel the opportunity and adequate time to review the pre-sentencing report.

(c) The excessive and harsh punishment ordered by the Court in view of the offense charged and the defendant-appellant's previous history.

(d) Other errors apparent on the face of the record.

(13) The Court on January 18, 1971 filed a Memorandum Order Denying Defendant's Motion For Stay Of Execution Of Sentence Pending Appeal and For Bail Pending Appeal, attached hereto as APPENDIX E. In denying this motion, the Court expressly held that the appeal "appears to be frivolous and taken for purposes of delay, 18 U.S.C. § 3148 (Supp. V, 1965-69); Rule 46(a) (2), Fed.R.Crim.P., and in any event the undersigned is unable to find any non-frivolous ground of appeal set forth in defendant's moving papers". The Court nevertheless extended the stay of execution of the sentence of imprisonment until January 19, 1971 at 4 P.M. to enable defendant to make application to the Court of Appeals.

(14) On January 19, 1971, defendant brought on for hearing in the Court of Appeals a motion, variously described in the record before the undersigned as a motion for stay of execution pending appeal or for bond pending appeal. The Court of Appeals denied the motion from the bench on January 19, 1971.

(15) Later on January 19, 1971, Judge Zampano (with the oral approval of the undersigned) granted defendant a further stay of execution of the sentence of imprisonment until January 25, 1971, conditioned upon his posting a $5,000 appearance bond, which bond was posted. The stay of execution of the sentence of imprisonment...