United States v. Parrino, 187
| Decision Date | 02 April 1953 |
| Docket Number | No. 187,Docket 22603.,187 |
| Citation | 203 F.2d 284 |
| Parties | UNITED STATES v. PARRINO. |
| Court | U.S. Court of Appeals — Second Circuit |
Vine H. Smith, Brooklyn, N. Y., for appellant.
Daniel H. Greenberg, New York City, Myles J. Lane, U. S. Atty. for Southern District of New York, New York City, Thomas F. Burchill, Jr., Asst. U. S. Atty., New York City, of counsel, for appellee.
Before L. HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.
Parrino appeals from an order of Judge Ryan, dismissing a motion made under Section 2255 of the Civil Code1 to vacate a judgment of conviction entered on December 13, 1951. The motion was a sequel of our decision in the same case, rendered on March 7, 1950, and reported in 2 Cir., 180 F.2d 613. An indictment, returned in October 1948, charged Parrino in two counts: the first, for kidnapping and holding for ransom one, Rozen, a French seaman; and, the second for conspiracy to commit that crime.2 Rozen had been kidnapped in August 1934, and an indictment was filed in September of that year against a number of persons — Parrino among them — some of whom were tried and convicted. Parrino absconded, and while he was in hiding Judge Knox, on motion of the District Attorney, entered a nolle prosequi on the indictment in November 1937. Parrino then came back to his home in Brooklyn in 1940 and lived there openly until he was discovered and indicted in 1948, as we have just said. He was brought to trial and raised the defence of the Statute of Limitations which the judge overruled because he held that the crime was punishable by death.3 In charging the jury he told them that, if they found that Rozen had not been "liberated unharmed" they were to say whether they recommended the death penalty. They returned a verdict of guilty on both counts without any such recommendation, and the judge imposed a sentence of twenty-five years. We reversed this conviction, because we held that the crime was not punishable with death unless the kidnapped person had not been "liberated unharmed," that the period of limitation was three years, unless he had not been so "liberated," that it did not appear whether or not he had been, and that in the absence of such a finding we could not say that the Statute of Limitations had not barred the indictment.
When the case came on for trial again before Judge Leibell, Parrino entered a plea of guilty on the conspiracy count, apparently upon tacit agreement of the prosecution that the substantive count should be withdrawn. When questioned by the clerk, Parrino declared that he understood the charge and would plead "on one condition," which, however, he withdrew after he had talked with his attorney who was in court. After an adjournment of two weeks the case came on for sentence before Judge Samuel H. Kaufman, and both the prosecuting attorney and Parrino's made statements at length to the judge. That of the prosecuting attorney gave a detailed account of the facts that included torture of Rozen by the conspirators to force him to declare that he had stolen a package of heroin that the conspirators had been expecting to receive from an incoming steamer on which Rozen had been serving. In his reply Parrino's attorney stated in excuse that Parrino, though present at the torture of Rozen, did not "participate in any of the inhuman acts," and did not know "what he was doing there." He added that "there was considerable testimony that he," Rozen, "was released unharmed"; from which he concluded that "it could very well be that upon retrial this man would have gone free." He then addressed himself to persuading the judge to impose a light sentence, saying among much else: "Mr. Parrino is in that category of one who was not the main culprit, and being in the same status with this other one of three years, would not ordinarily get more than three years." Parrino was of course in court at the time, and there is no evidence that he could not understand English. Upon these statements of the attorneys and upon the prosecution's withdrawing the substantive count, the judge imposed a sentence of two years, which will be followed by deportation, a consequence that under the circumstances will be substantially the equivalent of adding the punishment of exile to that prescribed by the statute.
Seven months later, on July 30, 1952, Parrino retained a second attorney who made the motion now at bar, to vacate the sentence under § 2255. It is somewhat difficult to spell out from the attorney's supporting affidavit what are the grounds for this application; certainly it contained nothing that had any bearing upon those mentioned in § 2255; and — what is more important — nothing to intimate that Parrino did not understand that he was admitting that Rozen was not "liberated unharmed." Judge Ryan denied the motion because the indictment had alleged that it was a part of the conspiracy that the kidnappers should "beat and torture" Rozen, and because he thought that enough to make the crime punishable with death. Hence a plea of guilty tolled the three years Statute of Limitations. Parrino took an appeal by Mr. Vine H. Smith, his third attorney, from this order and that is the appeal before us. In his brief Mr. Smith argues that the motion should be taken as made, not only under § 2255, but also under Criminal Rule 32(d) "to withdraw a plea of guilty * * * to correct manifest injustice * * * after sentence".
This aspect of the appeal we will consider first, assuming, arguendo, that the motion may be treated, as though made under that Rule. Even so, we cannot find anything either in the colloquy that took place when Parrino entered the plea, or in his second attorney's affidavit in the district court that makes it "manifest injustice" to let the plea stand, except that, as we have said, Parrino and his wife and child, both citizens, will be exiled. Whatever may be our personal feelings about the severity of that penalty, obviously they should not intrude into our decision. The only fact that is possibly relevant is that he did not understand that the plea was an abandonment of his chance to set up the bar of the statute. We cannot, of course, know what he personally supposed, but he was twice represented by attorneys, loyal so far as appears, who both consented to his entering the plea, and who, if they understood our opinion at all, must have realized that the only issue was the Statute of Limitations, and that that turned...
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...States v. Doyle, 348 F.2d 715, 718 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965) and United States v. Parrino, 203 F.2d 284, 286-87 (2d Cir.1953), we held that a defendant cannot raise the issue of limitations after pleading guilty to the offense in question. In s......
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