United States v. Martin, 11461.

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: HAYNSWORTH, , and BOREMAN and WINTER, Circuit
• Citation: United States v. Martin, 389 F.2d 383 (4th Cir. 1968)
• Decision Date: 11 January 1968
• Docket Number: No. 11461.,11461.
• Parties: UNITED STATES of America, Appellee, v. Robert MARTIN, Appellant.

389 F.2d 383 (1968)

UNITED STATES of America, Appellee, v. Robert MARTIN, Appellant.

No. 11461.

United States Court of Appeals Fourth Circuit.

Argued December 5, 1967.

Decided January 11, 1968.

Dennis J. Winner (Court-appointed counsel), Asheville, N. C., for appellant.

Wm. Medford, U. S. Atty. (William M. Styles, Asst. U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BOREMAN and WINTER, Circuit Judges.

HAYNSWORTH, Chief Judge:

Charged with the interstate transportation of stolen cattle in violation of 18 U.S.C.A. § 2316 and with a conspiracy to obtain cattle for interstate transportation by the use of fraudulent checks in violation of 18 U.S.C.A. § 371, the defendant and his female confederate went to trial on pleas of not guilty. After the Government had rested and a conference with his retained counsel, defendant tendered a guilty plea on the substantive count. The plea was accepted, whereupon the conspiracy count was dismissed, and all charges against his confederate were dropped Imposition of sentence was postponed to afford the defendant an opportunity to make restitution.

When, not having made restitution, the defendant appeared for sentencing, he moved to withdraw his guilty plea on the ground that he had not understood that he was pleading to the knowing transportation of stolen cattle. His lawyer promptly informed the court that he had fully explained to his client that cattle procured by fraudulent checks were "stolen" within the meaning of the statute, and moved for leave to withdraw. The lawyer's motion to withdraw was denied, the proceeding continued, and sentence was imposed.

We find no merit in the contention that the defendant was denied the effective assistance of counsel in the sentencing proceeding. When the defendant made the motion for leave to withdraw his plea on a factual assertion the lawyer knew to be untrue, he had a duty to the court and to himself to disclose the fact. Nor was the court required to suspend the proceedings to permit the defendant to procure the presence of another lawyer he had consulted, but whose services he had not engaged. The fact that the defendant had heard the entire case for the prosecution before he tendered his guilty plea, in light of the lawyer's representation, made the factual premise of the motion so frivolous that an interruption of the proceedings was not required.

It is also objected that when the guilty plea was accepted, the court did not inform the...