United States v. Pisciotta, 60

• Decision Date: 03 November 1952
• Docket Number: Docket 22450.,No. 60,60
• Citation: 199 F.2d 603
• Parties: UNITED STATES v. PISCIOTTA.
• Court: U.S. Court of Appeals — Second Circuit

199 F.2d 603 (1952)

UNITED STATES v. PISCIOTTA.

No. 60, Docket 22450.

United States Court of Appeals Second Circuit.

Argued October 7, 1952.

Decided November 3, 1952.

Rosario Pisciotta, pro se.

Myles J. Lane, U. S. Atty., Thomas F. Burchill, Jr., and David S. Carton, Asst. U. S. Attys., New York City, of counsel, for appellee.

Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.

SWAN, Chief Judge.

This is an appeal in forma pauperis by a convict in custody at the United States Penitentiary, Leavenworth, Kansas, under a sentence imposed in the court below on plea of guilty to count 2 of an indictment charging an illegal sale of narcotics. When arraigned in January 1951 the prisoner originally pleaded not guilty, but on May 3rd he changed his plea to guilty. He was represented by an attorney of his own choosing who appeared with him in court when the plea was changed and when sentence was imposed on May 25, 1951. The sentence was seven years imprisonment and a fine of one dollar, fine remitted.

In June 1951 the appellant moved through new counsel for a reduction of sentence. This motion was denied. The motion papers contained no suggestion that the appellant was innocent or that his plea of guilty was not understood by him or that it resulted from fraud or coercion, which are the grounds now asserted for vacation of sentence. The motion to vacate pursuant to 28 U.S.C.A. § 2255 was submitted to the United States Attorney in October 1951 and by him was apparently transmitted to Judge Goddard. The appellant's supporting affidavit alleged that he "did not competently and intelligently enter plea of guilty," nor "voluntarily plead guilty," because his counsel "by mistake or negligence * * * failed to make known to the Court the petitioner's expressed desire to plead not guilty." It further alleged that had his counsel complied with the appellant's "expressed desire" and informed the court of "all the basic facts and circumstances" the court would have seen that he was not guilty. But there was no statement as to what such facts and circumstances were. The affidavit also alleged that the petitioner has an affidavit "which is the confession of the party who did commit the offense" with which the petitioner was charged. It is stated that this confession affidavit will later be submitted to the court, but it never was and it does not appear in the appeal record. In November 1951 the appellant filed a petition for a writ of habeas corpus ad testificandum asking that he be produced in court to testify at the hearing on his § 2255 motion. This petition was denied on November 16 "for lack of jurisdiction."¹

The § 2255 motion was referred by Judge Goddard to the Legal Aid Society for investigation and report to him. Thereafter a Legal Aid attorney filed an affidavit expressing belief in the appellant's innocence, and annexed thereto was an affidavit by appellant's brother Anthony, who had likewise pleaded guilty to the same count of the indictment, that Rosario was not connected in any way with the sale of the narcotics, "did not have knowledge thereof," and "was not present at the place of this sale on October 24, 1950." The Legal Aid attorney also wrote the appellant that on March 25, 1952 he would make a motion to set aside the plea of guilty and sentence. At a hearing on March 26, 1952 at which both the Legal Aid attorney and an Assistant United States attorney made statements in favor of allowing the plea of guilty to be withdrawn and the case to be reconsidered, Judge Goddard announced that the motion to permit the appellant to withdraw his plea of guilty is granted. But no order was entered, and thereafter the Legal Aid attorney apparently changed his opinion and advised Judge Goddard that he had withdrawn from the case, although he had never been formally appointed by the court to represent the appellant. On April 9, 1952 Judge Goddard endorsed on the appellant's motion papers "Application denied." However, on the following day, April 10, 1952, in the presence of the Assistant United States attorney but in the absence of the appellant or any attorney representing him, Judge Goddard announced: "We will proceed just as a supplementary hearing in the matter of Rosario Pisciotta for permission to withdraw his plea of guilty and for reduction of sentence." He then took the testimony of George H. White, a District Supervisor of the United States Bureau of Narcotics, with headquarters at Boston, who said that he was appearing in response to a request from the court. He testified as to the appellant's past record of narcotic offenses as shown by the files of the Narcotics Bureau, consisting of notes made by agents other than Mr. White. At the conclusion of the testimony the court said: "* * * with this recent addition to the facts relating to Pisciotta, it appears that he has not shown grounds for the Court to allow him to withdraw his plea of guilty or grounds for reduction of the sentence." No formal order was entered, the appellant's motion having been denied on the previous day as already noted.

On April 25, 1952 the appellant moved for a rehearing of the denial of his motion to vacate the sentence. He contends that he was denied due process because (1) he was not brought on to testify in his own behalf, (2) he was not represented by counsel at the hearing, and (3) the testimony of Mr. White was taken in the absence of himself or any attorney representing him. He also asserts that his plea of guilty was obtained "through fraud, coercion and fear of his brother's welfare." The motion for rehearing was denied without opinion on May 19, 1952.

The statute under which the appellant moved to vacate his sentence is printed in the margin.² The crucial issues of fact attempted to be raised by his October 1951 motion and his later motion for reconsideration of its denial are whether he pleaded guilty voluntarily and understandingly or was induced so to plead by fraud or coercion practised upon him by his attorney or his brother. Obviously such issues cannot be determined solely by the files and records of the sentencing court; they will necessarily depend in large part upon the convict's own testimony. In United States v. Hayman, 342 U.S. 205, at page 223, 72 S.Ct. 263, at page 274, the court said: "Where, as here, there are substantial issues of fact as to events in which the prisoner participated, the trial court should require his production for a hearing."³ But in applying this sound precept the question arises how fully must the convict allege the facts upon which he relies in order to establish that the motion raises "substantial issues of fact." If it were sufficient to allege merely conclusionary statements, such as, "I am innocent but was induced to plead guilty against my wishes," one can readily imagine how many convicts without valid complaint against their sentences would obtain an excursion from a distant penitentiary at government expense. We think that the motion papers must contain more than merely conclusionary allegations of innocence and of a miscarriage of justice.⁴

In the case at...