United States v. Pallotta, 7661.
| Decision Date | 06 November 1970 |
| Docket Number | No. 7661.,7661. |
| Parties | UNITED STATES of America, Appellee, v. Peter J. PALLOTTA, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Peter J. Pallotta on brief pro se.
David A. Brock, U. S. Atty., and William B. Cullimore, Asst. U. S. Atty., on brief for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
On September 20, 1967, defendant was indicted for bank robbery and putting the lives of certain persons in jeopardy by use of a dangerous weapon in violation of 18 U.S.C. §§ 2113(a) and (d) (1964). He was tried by a jury, found guilty, and sentenced to twenty-five years in prison. On appeal, we remanded the case for retrial for reasons not pertinent here. Pallotta v. United States, 404 F.2d 1035 (1st Cir. 1968). On January 9, 1969, defendant changed his plea to guilty. He was sentenced to twelve years imprisonment on April 18. On June 26 a motion for reduction of sentence was denied by the district court without a hearing.
On April 24, 1970, defendant wrote a letter to the district judge in whose court he had pleaded guilty, alleging the following: (1) defendant's court-appointed counsel had told him in the presence of Richard Brunell, a United States Marshal, that "in exchange for my plea of guilty, the U. S. Attorney, Mr. Louis Janelle, had agreed to make a strong verbal recommendation to the Court that I (the defendant) be sentenced to a period of ten (10) years, not twelve (12) years imprisonment." (2) "My sole purpose of entering my plea of guilty was due to the fact that I was led to believe I was to receive a ten (10) year, not twelve (12) year sentence." (3) The United States Attorney failed to honor his promise. The transcript shows that the United States Attorney recommended a twelve-year sentence. The district court treated defendant's letter as a motion under 28 U.S.C. § 2255 (1964), which it denied without a hearing.
In United States v. McCarthy, 433 F.2d 591 (1st Cir., 1970), also decided this day, we held that defendant was entitled to a hearing under 28 U.S.C. § 2255 (1964) when he moved to have his sentence vacated on the ground that he had been promised a suspended sentence in return for his guilty plea. In the instant case, defendant alleges merely that the prosecution promised to recommend a lesser sentence and failed to honor that promise. However, as we noted in McCarthy, a sentence based on a guilty plea that was induced by an unfulfilled prosecution promise is void.
This case differs from McCarthy in that here the defendant alleges that he was informed about the United States Attorney's promise indirectly by his own counsel. A "mere prediction by counsel of the court's likely attitude on sentence, short of some implication of an agreement or understanding, is not ground for attacking a plea." Domenica v. United States, 292 F.2d 483, 485 (1st Cir. 1961). Here, however, defendant alleges that his counsel purported to speak on behalf of the United States Attorney; that "a `working agreement' had been formulated by the defense counsel and the United States Attorney and that said agreement was breached and disavowed by both parties concerned." See Machibroda v. United States, 368 U.S. 487, 489, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Even if no "working agreement" existed in fact, the voluntariness of defendant's guilty plea would be seriously in question if it was induced by representations by court-appointed counsel that such an agreement was in effect. See United States ex rel. Thurmond v. Mancusi, 275 F.Supp. 508, 516 (E.D.N.Y. 1967).
Before writing to the court about this matter, defendant wrote to his trial counsel in an attempt to corroborate his allegations. In a letter dated February 25, 1970, counsel implied that he remembered asking the United States Attorney to recommend ten years but, as he recalled, the United States Attorney "did not really care whether he tried the case or not as he had witnesses present that morning prepared to go to trial." Defendant sent a copy...
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