United States v. Hughes

• Decision Date: 09 January 1964
• Docket Number: No. 195,Docket 28303.,195
• Citation: 325 F.2d 789
• Parties: UNITED STATES of America, Appellee, v. Paul M. HUGHES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

325 F.2d 789 (1964)

UNITED STATES of America, Appellee, v. Paul M. HUGHES, Defendant-Appellant.

No. 195, Docket 28303.

United States Court of Appeals Second Circuit.

Argued December 9, 1963.

Decided January 9, 1964.

Donald J. Cohn, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., and James M. Brachman, Asst. U. S. Atty.), for the United States.

Bruno Schachner, New York City, for appellant. Stephen Hochhauser, New York City, of counsel.

Before CLARK,^* SMITH and HAYS, Circuit Judges.

HAYS, Circuit Judge.

Defendant Hughes appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York by Judge William B. Herlands on a plea of guilty to the final count of a 32 count indictment charging Hughes and others with violations of the securities laws, mail fraud, and conspiracy. Hughes had originally pleaded not guilty. He later changed his plea to the conspiracy count of the indictment, pleading guilty to that count alone. After the case had been assigned to Judge Herlands for sentencing Hughes moved, pursuant to Rule 32(d) of the Federal Rules of Criminal Procedure,¹ to withdraw his plea of guilty. The grounds of his motion were that he was in fact innocent and that certain representations which had been made to secure his testimony in a related stock swindle case, United States v. Garfield United Dye Corp., 61 Cr. 671, 694 (S.D.N.Y.), appeal pending, No. 28030 (2d Cir.), and on which he had relied as an inducement to plead guilty, had been repudiated by the government.² After a six-day hearing, Judge Herlands denied the motion, 223 F.Supp. 477 and sentenced Hughes to eighteen months imprisonment. We affirm.

In affidavits annexed to his motion to withdraw his guilty plea, Hughes and his two attorneys alleged that Hughes believed he was innocent of the charges in the indictment. At the hearing before Judge Herlands, government counsel testified that Hughes had never maintained his innocence during any of their many conferences and that indeed Hughes had admitted his guilt in response to questions put to him as preparation for anticipated cross-examination. Hughes and his counsel were permitted to contradict that testimony but Hughes was not permitted to testify regarding his present belief that he was innocent. Resolving the conflict in testimony in favor of the government, Judge Herlands found:

"1. That the defendant pleaded guilty before Judge Metzner on April 3, 1961, because he felt and knew he was guilty and because, acting on the advice of competent counsel, he concluded it was to his own best interest not to stand trial but to attempt to mitigate or extenuate his guilt by agreeing to cooperate with the Government.

"2. That neither the defendant nor his attorney has maintained that he is innocent of the charge to which he pleaded guilty * * * Record citations omitted; that on the contrary the defendant admitted his guilt not only by pleading guilty before Judge Metzner but also by reaffirming his guilt in his answer to the specific question put to him by Assistant United States Attorney Walpin in the course of preparing against anticipated cross-examination in the UDY case." Record citations omitted.

Defendant objects that it was improper for the court to determine that he had never maintained his innocence in view of the allegations of innocence in his affidavits and the action of the court in prohibiting testimony as to his present state of mind. We conclude that no error was committed.

As is apparent from a reading of the opinion as a whole, Judge Herlands sought primarily to determine whether Hughes had asserted his innocence at or about the time of his guilty plea, since that fact, if established, would have supported his claim that his plea had been induced by government representations rather than by a consciousness of guilt. Thus, we think the phrase "has maintained" in finding 1 must be read as referring to the prior period only. Hughes' present self-serving protestations of innocence were, of course, not probative of his former state of mind and thus were properly excluded on that issue.

Defendant contends, however, that his present claim of innocence was not accorded the significance to which it is entitled. He points to decisions stating that, although withdrawal of a guilty plea after sentence should be permitted only "to correct manifest injustice," such a change of plea should be freely allowed when sought before sentence is imposed, see, e. g. Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); Kadwell v. United States, 315 F.2d 667, 670-71 (9th Cir. 1963); United States v. Lias, 173 F.2d 685, 688 (4th Cir. 1949), and argues that leave to withdraw a guilty plea must be granted when a defendant's claim of innocence is not frivolous and it will not be inequitable to the government — because of intervening destruction of evidence or otherwise — to afford a defendant a trial, see Gearhart v. United States, 106 U.S. App.D.C. 270, 272 F.2d 499 (1959) (defense of insanity).

Denial of a motion to withdraw a guilty plea, however, is reversible only if there has been an abuse of discretion. United States v. Smiley, 322 F.2d 248 (2d Cir. 1963); United States v. Lester, 247 F.2d 496, 500 (2d Cir. 1957). And although a defendant is not entitled to gamble upon the outcome of a trial and thus must at least deny that he is guilty, United States v. Paglia, 190 F.2d 445, 447-448 (2d Cir. 1951); accord United States v. Nagelberg, 323 F.2d 936 (2d Cir. 1963); United States v. Norstrand Corp., 168 F.2d 481 (2d Cir. 1948), an allegation of innocence is not sufficient to compel the granting of a motion to withdraw a guilty plea, United States v. Lester, supra, 247 F.2d at 501.

Appellant claims that the government induced him to enter a guilty plea by promising to make a statement to the sentencing judge which would be favorable to him and by promising that he would be permitted to by-pass judges whom he believed to...