United States v. Presley, 71-3577.

• Decision Date: 27 June 1973
• Docket Number: No. 71-3577.,71-3577.
• Citation: 478 F.2d 163
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sam PRESLEY, Sr., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

478 F.2d 163 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Sam PRESLEY, Sr., et al., Defendants-Appellants.

No. 71-3577.

United States Court of Appeals, Fifth Circuit.

May 4, 1973.

Rehearing Denied June 27, 1973.

Roland J. Mestayer, Jr., Pascagoula, Miss., Thomas M. Haas, Mobile, Ala., for defendants-appellants.

Robert Hauberg, U. S. Atty., Jackson, Miss., Paul G. Kratzig, Sp. Atty., U. S. Dept. of Justice, New Orleans, La., Sidney M. Glazer, Shirley Baccus-Lobel, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

In July, 1970, appellants and co-defendant Pat Presley, all Mississippi residents at the time of the alleged offenses, were indicted for offenses in connection with the operation of a gambling casino in Mississippi on various dates between July, 1965, and January, 1966.¹ The appellant, Sam Presley, Sr. owned the Sage Patch Casino in Jackson County, Mississippi, and the other appellants were his employees. Count One charged a violation of 18 U.S.C. Section 371, by conspiring to use a facility of interstate commerce for the purpose of managing, establishing, carrying on, facilitating or promoting illegal gambling activities in violation of 18 U.S.C. Section 1952.² Counts Two through Eight charged substantive violations of Section 1952. For purposes of this appeal, appellants admit that illegal gambling activities were conducted and that the interstate facility employed to promote their gambling activities was the collection by use of the mails, "of" out of state checks given them by their customers and deposited in a Mississippi bank.

Appellants were arraigned on August 10, 1970, and pled "Not Guilty" to all counts of the indictment. Various motions thereafter filed by appellants were heard and overruled in January, 1971, by the district judge in a written opinion. On March 9, 1971, appellants and their co-defendant Pat Presley were allowed to withdraw their pleas of "Not Guilty" and enter pleas of nolo contendere. Pursuant to Fed.R.Crim.P. 11³ the court addressed each defendant personally in an effort to determine that the nolo contendere pleas were made voluntarily and with understanding of the nature of the charge and the consequences of the plea. Based upon the pleas of nolo contendere, and satisfied as to compliance with Rule 11, the court made a finding of "Guilty," passed the case for sentencing at a future date, and requested a presentence report.

On April 5, 1971, the United States Supreme Court by its opinion in Rewis v. United States, 1971, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493, interpreted Section 1952 as applying to situations which involved more than "merely conducting the illegal operation," not where the interstate activity was purely incidental to the illegal operation. 401 U.S. at 813, 91 S.Ct. at 1060, 28 L.Ed.2d at 497. When Rewis came to the attention of their counsel, appellants filed a motion in the district court to dismiss the indictment on the ground of failure to charge a federal offense, relying on Rewis. Hearing on the motion was set for November 8, 1971. In the meantime, notice was sent to each defendant to appear for sentencing November 9, 1971.

The hearing on the motion to dismiss was held as scheduled and the district court ruled the next day that appellants' reliance on Rewis was misplaced and thus denied the motion. Immediately thereafter, still prior to sentencing, each defendant requested leave of court to withdraw his plea of nolo contendere substitute the plea of not guilty and an opportunity to present facts and legal argument in support of his motion. These requests were denied on the apparent basis that the assertion that a recent decision might affect the legality of the indictment was not sufficient ground to warrant further delay or withdrawal of pleas knowingly and voluntarily entered. Sentence was then imposed.

Following sentencing appellants filed a number of motions, of which the most significant here was a request for the court to reconsider its denial of their motions to substitute pleas of not guilty for their nolo contendere pleas. The district judge denied all motions and appellants appeal. We reverse.

Rule 32(d), Fed.R.Crim.P., provides safeguards against the consequences of an improvident plea of guilty or nolo contendere, as follows :

"Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended ; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea."

This rule does not confer an absolute right to withdraw a plea of guilty or nolo contendere before the imposition of sentence, but leaves to the sound discretion of the trial judge the decision whether a defendant has met his burden of showing adequate cause for permitting withdrawal of the plea, as we have held in a number of cases. United States v. Valdez, 5 Cir. 1971, 450 F.2d 1145 ; United States v. Arredondo, 5 Cir., 1971, 447 F.2d 976 ; Kirshberger v. United States, 5 Cir. 1968, 392 F.2d 782. We have adhered nonetheless to the general principle that Rule 32(d) should be construed liberally in favor of the accused when a motion is made to withdraw before sentence is imposed. Kirshberger v. United States, supra, at 784, and cases cited therein. The right of jury trial is involved and that right has long held a favored place in our law.

As the rule itself implies, there is a different standard for granting the motion prior to sentencing as compared to after sentencing. Wrote Chief Judge Haynsworth of the Fourth Circuit in United States v. Roland, 4 Cir. 1963, 318 F.2d 406, 409:

"Such motions before sentence should be allowed with great liberality, but after judgment and the imposition of the sentence, the Rule gives the Court the power to grant such a motion if such action appears to be necessary `to correct manifest injustice\'".

We do not have a case where a defendant based his request to change his plea on a mistake of fact, e. g. Arredondo, or on mere indecisiveness, e. g. Valdez, or on an intuitive skepticism as to whether a conviction could be obtained, or for alleged promises that remained unfulfilled when the defendant earlier assured the court that no promises had ever been made, e. g. Kirshberger. In these and similar situations reversals of the trial judge's discretion are rare. Rather, this appeal goes to right of the district court even to hear the case. If the Rewis holding governs appellants' factual situation then their offenses were beyond the limits of the criminal jurisdiction which Congress intended to confer on the federal courts. The Legislative history of Section 1952, commonly referred to as the Travel Act, has been interpreted to mean that sensitive federal-state relationships were not to be altered and that essentially minor state offenses were not to be transformed into federal felonies and thus over-extend federal police resources. The purpose of Congress, instead, was to reach criminal activities extending beyond the borders of a single state by providing federal assistance in situations where local law enforcement is likely to prove ineffective. Rewis, supra ; United States v. Altobella, 7 Cir. 1971, 442 F.2d 310; United States v. McCormick, 7 Cir. 1971, 442 F.2d 316. In short, if this interpretation of Section 1952 fits appellants' situation, they were refused their expressed desire to withdraw their plea of nolo contendere and to plead not guilty and thereupon sentenced for acts which may not have constituted a federal offense.

While guilty or nolo contendere pleas are generally viewed as a waiver of non-jurisdictional defects, including the right to assert certain constitutional rights, "for this waiver to be valid under the Due Process Clause, it must be `an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)." McCarthy v. United States, 1969, 394 U. S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418. In De Leon v. United States, 5 Cir. 1966, 355 F.2d 286, 289, we said:

"Courts must always be diligent to ascertain whether a plea of guilty was understandingly made, and when it appears before sentencing that such a plea was entered by a defendant who did not understand the charges or acted as a result of mistake, it is an abuse of discretion not to permit the plea to be withdrawn." (Emphasis in the original.)

When the Rewis interpretation of the Travel Act was brought to the attention of the trial judge, it should have been clear that the admitted facts may not have been sufficient to warrant a federal charge of violation of Section 1952. There was no admission as to the nature or extent of appellants' reliance on the use of the interstate facility in aid of their unlawful conduct. Altobella, supra, holds that the use of the interstate collection process for checks must be more than "purely incidental" to appellants' illegal state activities. 442 F.2d at 315. Here, prior to sentencing, appellants called to the district court's attention a Supreme Court decision which may substantially affect their legal rights, but was unknown to them— because not yet rendered—at the time they pleaded nolo contendere. This did not constitute such an "intentional relinquishment or abandonment of a known right or privilege" as to overcome the presumption against waiver of fundamental constitutional rights.

Upon a jury trial appellants may be able to persuade the court as a matter of the law that they come under the Rewis protective umbrella. Failing that, they would be entitled to have the question submitted for jury determination under appropriate instruction. At the least they were entitled to try to make a record in this respect.

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