United States v. Denniston

• Decision Date: 03 May 1937
• Docket Number: No. 296.,296.
• Citation: 89 F.2d 696,110 ALR 1296
• Parties: UNITED STATES v. DENNISTON.
• Court: U.S. Court of Appeals — Second Circuit

110 ALR 1296, 89 F.2d 696 (1937)

UNITED STATES v. DENNISTON.

No. 296.

Circuit Court of Appeals, Second Circuit.

May 3, 1937.

Samuel Hershenstein, of New York City (Harold H. Corbin, Edward J. Bennett, and Nathan Grossman, all of New York City, of counsel), for appellant.

Lamar Hardy, U. S. Atty., of New York City (Francis A. Mahony, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The appellant was, on December 28, 1934, indicted by a grand jury sitting in the Southern District of New York for willful and fraudulent evasion of income taxes for the calendar years 1931, 1932, and 1933; there being a count in the indictment for each year. On January 7, 1935, the defendant pleaded not guilty in the District Court for the Southern District of New York and was released on bail. He had made, on October 18, 1934, an offer in compromise of any civil and criminal liability, none of which was admitted, and tendered the government his check but his offer was refused, though not until after he was indicted.

Having failed to effect a settlement, the appellant appeared in open court in the District Court for the above-mentioned district on May 27, 1936, with his attorney who asked leave to withdraw the plea of not guilty and to enter a plea of nolo contendere. After some consideration had been given to the question of the power of the court to impose a sentence of imprisonment upon a plea of nolo contendere and the conclusion reached that such power existed, the plea was accepted. Statements as to sentence were thereupon made to the court both by the attorney for the government who urged a prison sentence and by the attorney for the appellant who opposed that. Before the court had acted on the matter of sentence, the appellant's attorney requested the court to defer that until June 17th and was informed that sentence would be so deferred provided a plea of guilty was entered. The attorney then asked appellant: "Well, what do you say?" To which appellant replied: "What can I say?" Whereupon when the court inquired whether the plea was guilty the attorney replied, "Yes." This was done in the presence of the appellant and with his apparent acquiescence and then sentence was deferred.

That afternoon the appellant appeared in court with another attorney who asked leave to withdraw the plea of guilty and to enter a plea of not guilty. This motion was referred to another judge, was continued until heard by him on October 10, 1936, and then evidence was presented showing the circumstances under which the plea of guilty had been entered. The application was denied and a sentence of imprisonment imposed on each count; the sentences being made to run concurrently.

The evidence gave the court ample ground for deciding the motion as it did on the factual basis that the plea of guilty sought to be withdrawn had been entered in the presence of the appellant in open court by his attorney, a competent and experienced member of the bar, who then acted with the knowledge, comprehension, and acquiescence of the appellant. The appellant is an intelligent man who certainly must have known that a plea of guilty deprived him of the right to a trial on the merits though it is now, but without adequate supporting evidence, argued that the proceedings were confusing. It is apparent from the record before us that the appellant had been prompted to ask leave to plead nolo contendere by the thought, engendered by what he knew had happened following a like plea in a somewhat similar case, that he would be sentenced only to pay a fine. As what...