United States v. Paglia

• Decision Date: 19 July 1951
• Docket Number: Docket 21898.,No. 172,172
• Citation: 190 F.2d 445
• Parties: UNITED STATES v. PAGLIA.
• Court: U.S. Court of Appeals — Second Circuit

190 F.2d 445 (1951)

UNITED STATES v. PAGLIA.

No. 172, Docket 21898.

United States Court of Appeals Second Circuit.

Argued June 14, 1951.

Decided July 19, 1951.

Roswell B. Perkins, New York City, for appellant.

Harold J. Raby, New York City, Irving H. Saypol, U. S. Atty., New York City, (Bruno Schachner, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before SWAN, Chief Judge, and AUGUSTUS N. HAND and L. HAND, Circuit Judges.

L. HAND, Circuit Judge.

Paglia appeals from an order made under § 2255 of the Judiciary Code¹ which denied him all relief under the following circumstances. He had been indicted with others on March 10, 1950, in the Southern District of New York for transporting in interstate commerce counterfeit American Express Company cheques. The indictment contained ten counts but only three — Nos. 5, 6 and 10 — involved Paglia. Of these, Count Five charged him with transporting the cheques from New York to Cleveland; Count Six, with transporting them back from Cleveland to New York; and Count Ten was the inevitable count for conspiracy. Paglia was arrested on May 2nd and has been kept in custody ever since; on May 15th he retained an attorney on whose advice he pleaded "Not Guilty" on May 22nd. On June 9th he withdrew that plea and pleaded "Guilty" to Counts Five and Ten; this also upon the advice of his lawyer. After several trips from the House of Detention to the Court House, finally on July 19th he was brought for sentence before a judge who sentenced him to fifteen years imprisonment; ten on Count Five, and five on Count Ten — the maximum in each case. The prosecuting attorney gave as one reason for asking these maximums that he would withdraw Count Six — that for transporting the cheques back to New York from Cleveland. (Incidentally no nolle prosequi had been filed on this count when the motion came on to be heard.)

On August 7, 1950, Paglia moved under § 2255 of the Judicial Code¹ and Rule 32(d) of the Criminal Rules² to set aside the plea and sentence on the grounds: (1) that at his arraignment before the Commissioner he had not been advised of his right to counsel; (2) that the prosecutor had threatened and intimidated him several times in the absence of his counsel in an attempt to make him plead guilty; (3) that the same prosecutor had promised that he would recommend a sentence of not more than five years if he would plead guilty; (4) that "other Government agents," not identified, had given him the same assurance; and (5) that later he was called before a grand jury where he gave self-criminatory evidence. The prosecutor filed an affidavit, denying all these assertions and upon the record so made the judge denied the motion. It was from that order that this appeal was taken; we find it necessary to consider only points two, three and four There are a number of decisions which hold, when the prosecution has coerced the accused by threats, or persuaded him by deceit, to enter a plea of guilty, especially when he has no counsel, that he may withdraw his plea and plead "Not Guilty."³ It is true that we have not found any which hold that the accused may have that relief when he has been represented by counsel, and when the prosecution has done no more than fail to perform a promise to recommend a sentence lower than in fact it asked. However, that has again and again been one of the grounds on which relief was granted, and we will assume for argument that even though it stood alone, it might be enough; that point is not presented by this record. Upon such an assumption, if in the case at bar the prosecutor did promise to recommend to the judge sentence of a fixed term, and by means of it induced the plea of guilty, and if upon that plea the judge at the prosecutor's recommendation imposed a substantially higher term, it would follow that Paglia might withdraw his plea, for we all know that, although a judge is not bound to accept recommendations, he is extremely likely to be influenced by them. This we may assume because we hold for reasons that will at once appear that such a rule becomes inapplicable if the accused does not claim to be innocent, but on the contrary admits all facts on which his guilt depends.

The statute attaches a condition to the remedy, without which it would indeed be open to the greatest abuse. The judge must examine the "files and records of the case," and they must "conclusively show that the prisoner is entitled to no relief"; otherwise he is absolutely entitled to a "hearing." If he succeeds at the "hearing" the judge "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Thus the judge has a discretion, even though he is satisfied that some kind of "hearing" is necessary, to accommodate its extent to the relief to be given; although the "files and records" may conclusively show that the accused is not entitled to a trial, they may not show that he is not entitled to a resentence. That was the situation in the case at bar. The judge who imposed the original sentence on July 19th, held a hearing before sentence, though after the plea of guilty had been entered, at which the attorney whom the accused had retained answered the prosecutor's statement of facts; and in which he went over in detail Paglia's connection with the transactions, and conceded that he had been the "passer" for a ring of counterfeiters, and had taken the cheques in question from New York to Cleveland and cashed them there. He did not so much as intimate that all the facts were not as the prosecutor had stated them; indeed he repeated them in language which left no loophole for Paglia's innocence. All he did was to plead for lenity on the ground of Paglia's war record, and — rather absurdly — of his "youth."

So it appears that the crime charged in Counts Five and Ten was conceded; that Paglia was then present in court; that he heard all that his attorney said about him, which the attorney could only have got from him; and that he said not a word in contradiction. Furthermore his affidavit on this very motion contains not a...