United States v. Rockower, 104

• Citation: 171 F.2d 423
• Decision Date: 27 December 1948
• Docket Number: No. 104,Docket 21152.,104
• Parties: UNITED STATES v. ROCKOWER.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

171 F.2d 423 (1948)

UNITED STATES v. ROCKOWER.

No. 104, Docket 21152.

United States Court of Appeals Second Circuit.

December 27, 1948.

Richard A. Moore, of New York City, for defendant-appellant.

Frank J. Parker, Chief Asst. U.S. Atty., of Brooklyn, N.Y. (J. Vincent Keogh, U.S. Atty., and Edward S. Szukelewicz, Asst. U.S. Atty., both of Brooklyn, N.Y., on the brief), for plaintiff-appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

This is a motion by a defendant to set aside his conviction upon plea of guilt in 1928 of the crime of forging United States postal money orders in violation of the then 18 U.S.C.A. § 347 now § 500, on the ground that the judgment was void because entered in disregard of his constitutional rights. He was presented on an indictment in fourteen counts. As the clerk's entry and the endorsement on the reverse side of the indictment show, he pleaded guilty to Counts 1 and 2, the remaining counts were then dismissed on motion of the United States Attorney, and he was sentenced to imprisonment for five years on each count, the sentences to run consecutively. According to his motion, made on January 22, 1947, he was confined in a federal penitentiary for nearly seven years in service of this sentence. His claim for vacation of the judgment is based upon his allegation that his plea of guilt was made without the assistance of counsel and without his having been advised of his constitutional right to such assistance. He is now confined in the New York State Prison at Auburn as a fourth offender under a sentence given him in 1944 of thirty-five years to life, whereas the ordinary penalty for the crime of burglary, of which he had been convicted, was ten to twenty years. He alleges that this federal conviction was one of those used by the state court in finding that he was a fourth offender. While he asserts ignorance of his legal rights at the time of his conviction, he does not say why this motion was delayed to this time. It appears, however, that he had undertaken various proceedings in the state courts, at least one being an attack upon an earlier state conviction; and these all may be assumed to mark an increasing awareness of the law and of the precedents upon his part to his present position of rather complete legal sophistication. See Rockower v. Supreme Court of Kings County, Sup., 59 N.Y.S.2d 716; People v. Rockower, Sup., 51 N.Y.S.2d 185; People v. Rockower, 266 App.Div. 781, 41 N.Y.S. 2d 578, affirmed 292 N.Y. 655, 55 N.E.2d 518.

The court records of this conviction contain no more bearing upon the matter than has been stated. An Assistant United States Attorney has filed an affidavit setting forth with commendable frankness what he has been able to discover as to this proceeding. The judge, the commissioner, and the prosecutor are all dead; and there are no reporter's minutes or other notes now available. A deputy clerk is quoted as stating to the deponent "that the procedure of warning the defendant of his constitutional rights as it exists today, was not used at that time." Former Postal Inspector in Charge William Plath, who apprehended defendant in Syracuse, is quoted as asserting "that it was his practice to advise all defendants of their constitutional rights, and that he knew of no reason why he would not have done so in this case," and further that defendant on the train ride back from Syracuse said to him "that he would plead guilty; that it was the only thing he could do to get it over with."

The Assistant United States Attorney also sets forth defendant's record of convictions in various courts. These are so numerous as to suggest a question as to the effectiveness of the relief he now seeks, should it be granted, to cause the state court to reduce his sentence. He began as a juvenile delinquent in 1914 for burglary. There followed between 1917 and 1927 six convictions on serious offenses in New York for burglary, grand larceny, larceny, and forgery — all before his federal conviction and imprisonment. After release from the federal penitentiary he was convicted in 1936 of issuing worthless checks, and the case of People v. Rockower, supra, 266 App.Div. 781, 41 N.Y.S.2d 578, marks the reversal of some conviction before his present sentence. Hence he has had at least nine convictions for serious offenses, involving substantial terms of imprisonment, before his present conviction and confinement as a fourth offender.

The district court denied his motion to vacate the judgment, saying: "The defendant has waited almost twenty years before making such a motion — No reasonable excuse is presented for such delay." On this appeal he has been most ably and skillfully represented by counsel serving at the request of the court, to whom we must express our keen sense of obligation for this high type of public service. It is urged that the judgment appears on its face to be void and should therefore be ordered vacated, or in any event that a hearing should be conducted in the district court to establish the facts.

At the outset the United States Attorney, without pressing the point strenuously, calls our attention to the lack of a formal order by the district court incorporating in it the court's denial of the motion to vacate. The judge's endorsement on the motion papers is, however, quite explicit, stating, over his signature, "The motion is denied," and adding the reasons already referred to. The docket entry is to the same effect. The defendant accepted this action as a court judgment in a notice which he filed on April 10, 1947, of an intent to petition the Supreme Court for a writ of certiorari and later, when this was returned with the suggestion that he proceed by way of appeal, in his notice of appeal to this court. The district court itself also proceeded on the same assumption when later it allowed the defendant to appeal in forma pauperis "from the order dated April 1, 1947, denying his motion to set aside a judgment of imprisonment." The Federal Rules of Criminal Procedure, 18 U.S.C.A., do not require an...