United States v. Horton, 471

• Decision Date: 12 June 1964
• Docket Number: Docket 28637.,No. 471,471
• Citation: 334 F.2d 153
• Parties: UNITED STATES of America, Respondent-Appellee, v. Henry I. HORTON, Jr., Petitioner-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

334 F.2d 153 (1964)

UNITED STATES of America, Respondent-Appellee, v. Henry I. HORTON, Jr., Petitioner-Appellant.

No. 471, Docket 28637.

United States Court of Appeals Second Circuit.

Argued June 2, 1964.

Decided June 12, 1964.

Samuel Gruber, Stamford, Conn., for appellant.

Robert C. Zampano, U. S. Atty., New Haven, Conn., for appellee.

Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.

FRIENDLY, Circuit Judge.

In April, 1961, appellant Horton was apprehended in Florida and brought to Connecticut to respond to a 23-count indictment in the District Court, charging postal money order violations under 18 U.S.C. § 500; in May, 1961, he was indicted for a bank robbery in the District Court for Rhode Island under 18 U.S.C. § 2113. He engaged private counsel in Connecticut, on whose advice he executed a consent to the transfer of the Rhode Island indictment to Connecticut for plea and sentence, F.R.Crim.Proc. 20, and subsequently, after full compliance by Chief Judge Anderson with F.R.Crim. Proc. 11, including repeated questions to assure that Horton was pleading "of his own free will" and not because of threats or "promises of leniency of any kind," he pleaded guilty to one count of the Connecticut indictment (the other 22 being dismissed on motion of the United States Attorney) and to the Rhode Island indictment. In June, 1961, the court sentenced him to 16 years' imprisonment for the bank robbery and two years for the postal money order violation, the sentences to run consecutively. In December, 1961, Horton moved under 28 U.S.C. § 2255 to vacate the sentences; Judge Anderson denied the motion. Later he granted a rehearing and assigned counsel; after taking evidence, he adhered to his decision.

The ground pressed on appeal is that Horton was induced to plead guilty by advice from his privately engaged attorney, Cohn, that the then United States Attorney, Hultgren, had told Cohn (1) that the sentences would run concurrently, (2) that Hultgren would not anticipate a sentence greater than ten years, and (3) that, if asked by the sentencing judge for a recommendation, he would recommend a sentence of eight to ten years — although, as Hultgren knew but Cohn did not, the unvarying practice of the federal court in Connecticut in recent years has been not to seek or even permit such a recommendation. Judge Anderson reasonably found that Hultgren had not made the representations designated as (1) and (3), and that whatever he had said as to customary length of sentence in bank robbery cases was a statement of experience, not claimed to be insincere or incorrect, and in no way a promise. Horton urges that the vital issue is what his attorney said the United States Attorney had said, even though that was not what the United States Attorney had said to the attorney.

We are far from persuaded of the validity of any such proposition, which would afford an all too easy avenue for the invalidating of convictions on pleas of guilty. United States v. Shneer, 194 F.2d 598 (3 Cir.1952), and see 105 F. Supp. 883 (E.D.Pa.1952), much relied on by appellant, does not carry the day for him. The Shneer case arose not under 28 U.S.C. § 2255 but on a motion under F.R.Crim.Proc. 32(d), made within a month after sentence, to withdraw a plea of guilty in order "to correct manifest injustice"; the Court of Appeals held that denial of the motion had been a proper exercise of discretion, although giving the district court leave to take further testimony; and this Court's opinion in United States v. Parrino, 3 Cir., 212 F.2d 919, 921 fn. 4, cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954), indicates, to say the least, a lack of enthusiasm for some things said in Shneer. Cf. United States v. Weese, 145 F.2d 135 (2 Cir.1944). However, we...