United States v. Komitor, 305

Decision Date08 April 1968
Docket NumberNo. 305,Docket 31869.,305
PartiesUNITED STATES of America, Appellee, v. Seymour KOMITOR, Appellant.
CourtU.S. Court of Appeals — Second Circuit

Jerome Lewis, New York City, for appellant.

Pierre N. Leval, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, New York City, and Paul K. Rooney, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before MEDINA, MOORE and ANDERSON, Circuit Judges.


In an indictment filed on July 1, 1966, appellant was charged with nine counts of having received fees, compensations and rewards for the performance of his duties as an Internal Revenue officer in violation of 26 U.S.C. § 7214(a) (2). On July 28, 1966, appellant, represented by counsel, pleaded not guilty to all counts of the indictment. Later appellant obtained the services of another attorney and on May 9, 1967, withdrew his plea of not guilty and substituted a plea of guilty to Count Five which charged appellant with accepting $15 on June 19, 1961, from an accountant in connection with the examination of a 1960 income tax return.

Before accepting the guilty plea, Judge Cannella questioned appellant about the facts and implications of his plea. In response to these questions, appellant indicated that he had consulted with his lawyer, that he understood the law, that he had not been promised anything or threatened in any way, and that he changed his plea because he felt himself to be guilty of the charge.

On July 14, 1967, appellant was sentenced by Judge Palmieri to imprisonment for six months, probation for two years, and fined $2,500. The remaining eight counts were dismissed, without objection by the government, on motion by the appellant.

On July 21, 1967, appellant, now represented by yet another lawyer, moved before Judge Cannella to withdraw his guilty plea. This motion was denied and we affirm.

Rule 32(d) of the Federal Rules of Criminal Procedure provides:

"Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea."

This court has held that permission to withdraw a plea of guilty is a matter for the sound discretion of the trial court and "is reversible only if clearly erroneous." United States v. Giuliano, 348 F.2d 217, 221 (2d Cir. 1965); United States v. Hughes, 325 F.2d 789, 792 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964).

The government contends that appellant simply gambled on getting a suspended sentence by pleading guilty and, when he did not receive what he had expected, he preferred to take his chances with a trial. Appellant, in turn, argues, as he must, that the court should permit withdrawal of the plea "to correct manifest injustice."

Appellant claims that he had poor advice from his lawyer who represented him at the time he entered the plea of guilty; that, as he then understood the law, he assumed he was guilty merely if he received the money and did not realize that the money must be received in connection with his employment before it is a crime; that at the hearing in which he entered the guilty plea, he admitted receiving the $15 as a "gift"; and that nowhere did...

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  • United States ex rel. Russell v. La Vallee, 70 Civ. 4490.
    • United States
    • U.S. District Court — Southern District of New York
    • January 4, 1971
    ...86 S.Ct. 406, 15 L.Ed.2d 354 (1965). See also United States v. Fernandez, 428 F.2d 578, 580 (2d Cir. 1970); United States v. Komitor, 392 F.2d 520, 521 (2d Cir.) (per curiam), cert. denied, 393 U.S. 827, 89 S.Ct. 91, 21 L.Ed.2d 98 (1968); United States v. Hughes, 325 F.2d 789, 792 (2d Cir.)......
  • United States v. Cravatas, Crim. No. 12721.
    • United States
    • U.S. District Court — District of Connecticut
    • April 15, 1971
    ...own plea and sentencing by retained counsel who had had trial experience with the Criminal Frauds Section of the IRS. In United States v. Komitor, 392 F.2d 520 (2 Cir.), cert. denied, 393 U.S. 827 (1968), on facts strikingly parallel to those of the instant case, the Court of Appeals for ou......
  • Mountjoy v. Swenson
    • United States
    • U.S. District Court — Western District of Missouri
    • November 19, 1969
    ...Fay v. Noia, supra; Johnson v. Zerbst, supra; Jackson v. Denno, supra; Crawn v. United States (M.D.Pa.) 254 F.Supp. 669; United States v. Komitor (C.A.2) 392 F.2d 520; United States v. Ptomey (C.A.3) 366 F. 2d 759; United States v. Colonna (C.A. 3) 142 F.2d 210. As the Missouri Supreme Cour......
  • United States v. Cooper, 26687.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 30, 1969
    ...and that the court below did not abuse its discretion in refusing to permit appellant to withdraw his guilty plea, United States v. Komitor, 2d Cir. 1968, 392 F.2d 520, 521; Putnam v. United States, supra, 337 F.2d at We do not reach appellant's further contention, raised in the first insta......
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