United States v. Kent, 16356.

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: CASTLE, , and HASTINGS and SWYGERT, Circuit
• Citation: United States v. Kent, 397 F.2d 446 (7th Cir. 1968)
• Decision Date: 26 August 1968
• Docket Number: No. 16356.,16356.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank P. KENT, Defendant-Appellant.

397 F.2d 446 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Frank P. KENT, Defendant-Appellant.

No. 16356.

United States Court of Appeals Seventh Circuit.

June 18, 1968.

Rehearing Denied August 26, 1968.

Julius L. Sherwin, Theodore R. Sherwin, Chicago, Ill., for appellant.

Thomas A. Foran, U. S. Atty., Richard A. Makarski, Asst. U. S. Atty., Edward V. Hanrahan, U. S. Atty., Chicago, Ill., John Peter Lulinski, Gerald M. Werksman, Asst. U. S. Attys., of counsel, for appellee.

Before CASTLE, Chief Judge, and HASTINGS and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

Frank P. Kent appeals from an order of the district court denying his motion made pursuant to 28 U.S.C. § 2255. The motion was filed thirteen days after Kent entered a plea of guilty and was sentenced on five counts of an eight-count information charging him with unlawfully selling and delivering a variety of "depressant or stimulant" drugs in violation of 21 U.S.C. § 331(q) (2). In his motion, Kent sought to have the judgment of conviction and sentence set aside, to have his plea of guilty withdrawn, and to have a new trial.

After a lengthy hearing in which both Kent and his trial counsel testified, the district judge denied the motion, reciting in detail the reasons for his action. In the course of his oral remarks, the district judge viewed Kent's motion as essentially one seeking leave to withdraw his plea of guilty pursuant to Fed.R.Crim.P. 32(d). Since the other relief Kent requested in his motion would necessarily have been granted if he were allowed to withdraw his plea of guilty, we believe that the district judge properly considered the motion pursuant to Rule 32(d). Kienlen v. United States, 379 F. 2d 20, 23 (10th Cir. 1967); Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963); Pilkington v. United States, 315 F.2d 204, 209 (4th Cir. 1963).¹

Before this court, Kent advances two major contentions. First, he says that he was induced to plead guilty by the conduct of both a deputy United States Marshal and the district judge before whom the case was tried, thereby rendering his plea involuntary.² Second, he says that his plea of guilty was accepted by the district judge in violation of Fed.R.Crim.P. 11 in that Kent did not understand either the nature of the charge against him or the range of allowable punishment.

Some background is necessary in order to evaluate Kent's first contention. After an eight-count criminal information was filed against him on January 24, 1967, Kent entered a plea of not guilty to all counts. On June 13, 1967, the trial of the case commenced. A jury was empaneled, and opening statements were made by both the prosecution and the defense. The Government's first witness was James P. Braseth, an agent for the Bureau of Drug Abuse Control, United States Food and Drug Administration. He testified in detail concerning the sale and delivery by Kent to him of a variety of depressant or stimulant drugs, 21 U.S.C. § 321(v) (1). Before Agent Braseth had completed his direct testimony, the court adjourned the trial until the following morning.

Upon the resumption of the trial, a lengthy colloquy ensued, out of the presence of the jury, between the district judge, Kent's counsel, and the assistant United States Attorney.³ It is on the basis of this colloquy that Kent contends that he was intimidated and coerced by the district judge into pleading guilty, thereby rendering his plea involuntary.

In urging the coercive effect of the district judge's comments during the colloquy, Kent points in his brief to:

The Court\'s unfavorable reaction to the opening statement for the defendant; that the defendant was confronted with a very serious problem; that while the Court was not telling him how to try his lawsuit, he (defense counsel) had a great responsibility; that criminal lawyers had an erroneous impression about the law of entrapment; that it isn\'t easy to persuade a jury as to proof of entrapment; that it isn\'t easy to convince the Court that he is required to give an entrapment instruction; that the case could be quickly disposed of if it were tried without a jury; that there was an erroneous impression around that transactions with an agent are per se entrapment; that on the contrary it is more often good police work, good enforcement work; and that in all his years on the Federal bench, that on every occasion he had given an entrapment instruction at the request of the defendant the verdict has always been guilty.

Although it is true that the district judge did make some of the comments attributed to him by Kent, these comments cannot be viewed outside the context of the lengthy colloquy in which they were made.

During the colloquy, Kent's attorney indicated a willingness to stipulate concerning certain of the physical exhibits offered into evidence by the Government. The district judge remarked that any stipulations were dangerous and misleading when a case was being tried before a jury. Immediately after this comment, the district judge said, "If this were a case tried without a jury, I think it could be disposed of very quickly." Kent focuses on this statement as conveying the impression that his cause was hopeless. When viewed in context, however, the statement was innocuous. The obvious purport of the district judge's comment was that the case could be tried more expeditiously by the use of stipulations if there were no jury.

With respect to the judge's comments concerning defense counsel's opening statement, as the judge himself said, "I didn't quite understand the position of the defendant as you defense counsel stated it to the jury. * * * I like to understand clearly the position taken by a lawyer in the trial of the case." Likewise, the judge's comments concerning Kent's entrapment defense and his proposed instruction on that defense came after Kent's counsel stated, "We are going to confess these facts for the most part." In view of counsel's willingness to admit most of the facts, the judge was merely trying to point out the serious problem facing Kent in claiming entrapment. Instead of attempting to coerce or intimidate Kent or his counsel, the judge sought to offer assistance. That Kent's counsel so viewed the judge's comments appears from his statement that, "I appreciate your talking to us like this. * * * I do believe he Kent has gotten a great benefit from hearing you."

Further indications that the district judge's comments, when viewed in their totality, could not reasonably be construed to be intimidating or coercive appear in the record. During the colloquy, the judge on several occasions emphasized that he could reach no conclusion on the entrapment instruction until he heard all the evidence. In addition, he indicated that, "Mr. Kent * * * is as innocent as anyone in the courtroom until he is proven guilty as required by law." Likewise, the judge reiterated his willingness to call back the jury and to continue the trial, emphasizing on one occasion, "You Kent are putting the Government here, as you have a right to do, * * * to the necessity of proving its case, if it can prove its case, as required by law. But if that is what you want, we will try it straight through." Finally, in response to a suggestion by Kent's counsel that the judge "bridge any gap" between opposing counsel, the judge engaged in a lengthy statement in which he unequivocally indicated his view "that it is improper for the Court to negotiate with a defendant accused of a crime."

When viewed in their entirety, we can discover nothing of a coercive or intimidating nature in the district judge's comments. Nor do we believe that a reasonable person in Kent's position would find anything intimidating or coercive in the remarks. The district judge's comments in the instant case, even when viewed in isolation, cannot be compared with those made by the judge in United States v. Tateo, 214 F.Supp. 560 (S.D. N.Y.1963). In Tateo, the trial judge had stated in the middle of the trial that he would sentence the defendants to life imprisonment if the trial continued and they were found guilty. Whereas the judge's comments in Tateo were found to have coerced a plea of guilty, the judge's comments in the instant case were within the bounds of the discretion vested in him over the control of a trial.

After the colloquy was concluded, the district judge, at the request of Kent's counsel, called a recess to enable Kent and his counsel to confer. According to the post-trial petition filed by Kent and the affidavit of his trial counsel submitted in support thereof, the actions and statements of deputy United States Marshal Eugene Bissell, occurring during the recess, further induced him to change his plea to guilty. In his petition, Kent alleged that Bissell entered the room where he was conferring with his counsel and engaged in a whispered conversation with him. During the conversation, Bissell allegedly stated that he had talked to the judge about Kent's case, that Kent, Bissell and the judge were all Nobles in Medinah Temple, and that the judge would give Kent a "break" if he pleaded guilty. In addition, Kent alleged that Bissell instructed him to answer in the...