United States v. Hetherington
| Decision Date | 03 August 1960 |
| Docket Number | No. 12811.,12811. |
| Citation | 279 F.2d 792 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert C. HETHERINGTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Anna R. Lavin, Edward J. Calihan, Jr., Chicago, Ill., for appellant.
Robert Tieken, U. S. Atty., Albert F. Manion, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski and Charles R. Purcell, Jr., Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee.
Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.
The defendant Robert C. Hetherington was indicted on March 12, 1959 for attempted evasion of his individual income taxes for the calendar years 1952, 1953 and 1954, in violation of Section 145(b) of the Internal Revenue Code of 1939, 26 U.S.C. § 145(b) and Section 7201 of the Internal Revenue Code of 1954, 26 U.S. C. § 7201.
On April 3, 1959 defendant entered a plea of not guilty and was given until May 4, 1959 to file motions. Motions were made to dismiss the indictment, for discovery and production, and a bill of particulars, all of which were disposed of on June 17, 1959. The defendant made a timely motion accompanied by an affidavit pursuant to Section 144 of Title 28 United States Code, that Julius J. Hoffman, the judge to whom the trial was assigned, proceed no further, and that the cause be reassigned. The principal recitation of the affidavit stated that during the pendency of certain motions on May 18, 1959, the prosecutor and the Government's principal witness had a conference in Judge Hoffman's chambers at which time the theory of the Government's case was discussed. The affidavit further stated that the defendant was not present, nor given any notice that this meeting was to occur. On the basis of this affidavit the defendant expressed his belief that the Judge must be considered to be personally biased in favor of the plaintiff, the United States of America.
After motions made by defendant's counsel had been disposed of the case was set for trial on September 8, 1959 before the Honorable Julius J. Hoffman. Trial was commenced on September 8, 1959 and the Government proceeded with presenting its evidence until September 22, 1959, at which time the defendant moved to withdraw his plea of not guilty and enter a plea of guilty. Said motion was granted and the defendant entered his plea of guilty, and on October 22, 1959 the trial judge sentenced the defendant to one year and a day and a fine of $10,000 was imposed.
On October 23, 1959 defendant filed a motion to vacate the sentence and for withdrawal of his plea of guilty, which was denied.
The contested issues are:
1. Whether a plea of guilty was voluntarily entered by the defendant after consulting with, and upon the advice of counsel.
2. Whether this is the proper forum and time for review of the lower court's failure to reassign.
3. Whether a sufficient showing was made to empower the trial court to entertain a motion to withdraw the plea of guilty made by defense counsel after sentence was imposed.
4. Whether the ruling of the trial court upon the motion for continuance and for the withdrawal of a juror raises jurisdictional questions not waived by the entry of a guilty plea.
5. Whether the sentence imposed was legal and within the discretion of the trial court.
The defendant Robert C. Hetherington was a practicing physician and surgeon in Geneva, Illinois. On March 12, 1959 he was indicted. The indictment was in three counts, alleging that the joint returns filed by him and his wife, Leola, were false and fraudulent, in that the said defendant did thereby attempt to defeat and evade a large part of the income tax due to the United States of America. The years involved were 1952, 1953 and 1954. The total evasion charged for the three years was $14,820.48 on a total additional income of $38,853.62. The Government intended to prove its case on the "net worth" theory.
On September 8, 1959 the motion for reassignment was heard and denied by the court who expressed the opinion that the supporting affidavit was insufficient to justify the granting thereof. Defendant's counsel then asked for a continuance stating that he had not had sufficient time to prepare the case for trial. This motion was denied and the case proceeded to trial.
After selection of the jury and making opening statements on behalf of the Government and the defendant, the Government on September 10, 1959 began the introduction of evidence and the case continued on trial daily until September 22, 1959 when the defendant moved to withdraw his plea of not guilty and enter a plea of guilty. On September 14, 1959 at the request of the Government a conference was had in chambers to discuss problems created by the necessity of subpoenaing numerous witnesses for the production of documents. The court was informed by defendant's counsel that he would have to hold the Government to the rule requiring strict proof. At the same conference Mr. Calihan, defendant's counsel, advised the court that he had a genuine fear that the defendant would destroy himself, and also requested that the court adjourn at 4:45 p. m. each day in order that the defendant might get back to Geneva and carry on his practice in the evening. Judge Hoffman indicated that he would not relieve the Government of its difficulties arising from the nature of the case and the volume of its exhibits and witnesses, and in this conference he further advised counsel he would try to accede to his request regarding adjournments. On September 15, 1959, the trial was again interrupted by a conference in the chambers and Mr. Calihan acknowledged that the Government's counsel had consulted with the Department of Justice and that the Government would not make a recommendation to the trial court with reference to the type of disposition which might be made upon a plea of guilty. Mr. Calihan then attempted to obtain a commitment from Judge Hoffman as to what the sentence might be and it is very clear from Judge Hoffman's remarks that he would not make any arrangements in advance with the defendant as to what the sentence might be. The court went into great detail telling counsel for defendant that he would not make any deal as to what the sentence might be.
On September 17 certain representations were made that the defendant had fallen the previous evening injuring his leg. There were other medical representations made, one of which was a report from Mayo Clinic, but that opinion indicated that the doctor was in shape to proceed to trial and advise with his counsel.
Again on September 17 at the conclusion of the morning session the defense counsel raised the question of the defendant's health. Judge Hoffman then advised defense counsel as follows:
"I will be glad to give you a hearing outside of the presence of the jury with respect to the alleged or asserted medical condition of the defendant at any time you move for it."
During the afternoon session of September 17 the defendant took the stand in his own behalf to support his contention as to his physical condition and outlined his medical history. At the conclusion of the defendant's testimony the court denied defendant's motion for a continuance to permit a physical examination of the defendant by a Government doctor.
Again on September 21 the case was interrupted to permit the defendant to offer further evidence in support of his physical condition. Dr. Rodney Nelson and Dr. Thomas A. Heenahan were called as witnesses for the defense. Dr. Nelson stated that it was his opinion that it was unlikely that the defendant would become seriously ill or die because of the stress and strain of the trial, but that the continuation of the trial would seriously jeopardize the health of the defendant. Dr. Heenahan stated that he had no opinion as to the effect of the trial on the health of the defendant. At the conclusion of the testimony of Dr. Heenahan the defendant moved to withdraw a juror and to declare a mistrial. This motion was denied.
Then on September 22, 1959 the defendant asked to withdraw his plea of not guilty and to enter a plea of nolo contendere which was denied. Then the defendant moved for leave to withdraw his plea of not guilty and to enter a plea of guilty and the Court explained to the defendant in the presence of his attorney the charges in the indictment, and the defendant was asked if he knew the nature of the charges. The defendant answered "Yes, Sir". The Court then explained the possible penalty upon the plea of guilty and the defendant said he understood the consequence of such a plea.
On October 22, 1959 the case came on for disposition on the plea of guilty. The...
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Woosley v. United States
...imposed within the statutory maximum if it appears that the trial judge plainly abused his discretion. See United States v. Hetherington, 279 F.2d 792, 796 (7th Cir.), cert. denied, 364 U.S. 908, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960); Livers v. United States, 185 F.2d 807, 809 (6th Cir. 1950);......
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...Fowler v. United States, 391 F.2d 276, 277 (5th Cir.1968); United States v. Parker, 292 F.2d 2, 3 (6th Cir.1961); United States v. Hetherington, 279 F.2d 792, 796 (7th Cir.), cert. denied, 364 U.S. 908, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960); Hopkins v. United States, 344 F.2d 229, 234 (8th Cir......
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...from the transcript or the custom and practice of the court, the guilty plea (and the conviction) passes muster. See United States v. Hetherington, 279 F.2d 792 (7th Cir.), cert. denied, 364 U.S. 908, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960); United States v. Kniess, 264 F.2d 353 (7th Cir.1959); ......
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United States v. Warden of Green Haven Prison, 65 Civ. 3266.
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