United States v. Searle

• Decision Date: 23 February 1950
• Docket Number: No. 9915.,9915.
• Citation: 180 F.2d 209
• Parties: UNITED STATES v. SEARLE.
• Court: U.S. Court of Appeals — Seventh Circuit

180 F.2d 209 (1950)

UNITED STATES v. SEARLE.

No. 9915.

United States Court of Appeals Seventh Circuit.

February 23, 1950.

John J. Kelly, Jr., Chicago, Ill., Sam M. Arndt, Rock Island, Ill., of counsel, for appellant.

Otto Kerner, Jr., U. S. Atty., Lawrence J. Miller, Joseph E. Tobin, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, DUFFY and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

In an indictment containing four counts defendant was charged with willfully and knowingly attempting to defeat and evade a large part of his income taxes for the years 1942 to 1945 inclusive, by filing false and fraudulent income tax returns. When arraigned, upon advice of his attorney, defendant entered a plea of guilty. The court denied a motion for probation and sentenced defendant to imprisonment for 18 months. A stay of execution for 30 days was granted. Thereafter another attorney appeared for the defendant and obtained an additional stay. Prior to the expiration of the second stay, defendant, through his new attorney, moved to withdraw his plea of guilty. After a hearing, the court ordered that the motion to withdraw the plea of guilty be overruled and denied, from which order defendant brings this appeal.

Defendant had a high school education and has operated his business as an automobile dealer for about 20 years. The Internal Revenue Department commenced an investigation of his books and records in July, 1946. Shortly thereafter defendant retained as his attorney a cousin who had some 35 years of experience as a practicing lawyer and who for some years past has been a member of the Illinois State Legislature. From August, 1946, to March 10, 1949, defendant consulted his attorney about 18 times on matters pertaining to the income tax investigation.

The indictment was returned on March 10, 1949, and charged defendant with a total tax evasion of $15,134.92. The following day, after consultation with his attorney, defendant surrendered to the United States Marshal, posted bond, and received a copy of the indictment. Defendant read or had read to him the contents of the indictment and knew what the charges were. Defendant then turned the indictment over to his attorney, who made a study of it.

Defendant's first attorney testified on the hearing "that because of the facts, the type of the case, that it wasn't a case to be tried by trial by a jury but should be submitted to the court and a plea of guilty entered and a motion for probation made, and let the court determine," and that after discussing the matter the defendant authorized him to make arrangements so that a plea of guilty could be entered. Defendant testified that his attorney advised him to plead guilty and that if he did so the penalty would probably not be as much as if he stood a jury trial, and that though there was a possibility that he might go to jail the odds were against it. He stated that at one time the attorney told him that in his opinion the odds were one thousand to one against his being sent to prison. Prior to the date of the arraignment the defendant, through his attorney, had paid the government $22,500 in settlement of income taxes, interest and penalties.

Defendant claims that he did not know the extent of the penalty that the court might impose upon him, and therefore the trial court was in error in accepting the plea of guilty without the defendant understanding the nature of the charge. Defendant relies on Rule 11, Federal Rules of Criminal Procedure, 18 U.S.C.A., which, as far as here pertinent, provides: "A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. * * *"

A transcript of the proceedings on the arraignment however reveals that defendant did have information between the time of his plea and being sentenced as to the maximum penalty permissible, as hereinafter set forth:

"By Mr. Tobin (the Assistant United States Attorney): You are charged with the violation of Section 145(b), Title 26, of the United States Code 26 U.S.C.A. § 145(b), that is, attempting to defeat and evade the payment of income and victory taxes due and owing by you to the United States of America. How do you plead, guilty or not guilty?

"By the defendant: Guilty.

"By the Court: Have you had the advice of counsel?

"By the defendant: Yes."

At that point Mr. J. Clinton Searle...