United States v. Sternman

• Decision Date: 17 October 1969
• Docket Number: No. 18966.,18966.
• Citation: 415 F.2d 1165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hyman STERNMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

415 F.2d 1165 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Hyman STERNMAN, Defendant-Appellant.

No. 18966.

United States Court of Appeals Sixth Circuit.

June 24, 1969.

As Amended on Denial of Rehearing October 17, 1969.

Gerald Walpin, New York City, Rosenman, Colin, Kaye, Petschek, Freund & Emil, New York City, on brief; Jonathan M. Landers, New York City, of counsel, for appellant.

Gerald E. McDowell, Department of Justice, Washington, D. C., Fred M. Vinson, Jr., Asst. Atty. Gen., Edward T. Joyce, Attorney, Department of Justice, Washington, D. C., on brief; John G. Mattimoe, U. S. Atty., Toledo, Ohio, of counsel, for appellee.

Before WEICK, Chief Judge, and PHILLIPS and COMBS, Circuit Judges.

COMBS, Circuit Judge.

The appellant, Hyman Sternman, was sentenced to three years imprisonment after pleading guilty to an indictment charging contempt of court. The district court denied his motion filed under Rule 32(d), Federal Rules of Criminal Procedure, to set aside the conviction and permit withdrawal of the plea of guilty and a motion filed under Rule 34, Federal Rules of Criminal Procedure, to arrest the judgment.

The contempt charge arose when Sternman, already a federal prisoner, was subpoenaed to testify before a federal grand jury which was investigating interstate gambling activities. He agreed to answer any questions pertaining to his activities in the United States but would answer no questions about his activities during a period he had resided in Canada. Immunity was proffered under 47 U.S.C. § 409(l) and, when Sternman still refused to answer, he was taken before the presiding judge, the Honorable Don J. Young. Judge Young explained the functions of the grand jury and the concept of immunity. Since Sternman was not represented by counsel, he was told by the United States Attorney and by the judge that he should have a lawyer and that the proceedings would be continued until he could consult with one. Sternman stated that he did not desire a lawyer. He said, "I have told the grand jury I would not answer any questions on the years I lived in Canada, on the grounds that it might tend to incriminate me. But of every day I lived in the United States I will answer anything they want." Judge Young advised Sternman that a witness before a grand jury cannot withhold evidence on the ground that it might tend to incriminate him if he is granted immunity from self-incrimination, and that if he refused to answer questions he would subject himself to charges of contempt. Sternman made it clear that he would refuse to answer questions concerning his activities in Canada. The judge ordered him to return to the grand jury room and to answer any questions put to him by Government attorneys. Upon returning to the grand jury room, he again refused to answer and the grand jury indicted him for contempt of court.

Five days later, Sternman was brought before Judge Young to plead to the indictment. The judge again commented upon the absence of counsel and offered to delay the case to enable him to obtain counsel. The judge also offered to appoint counsel although Sternman was not indigent. Sternman chose to proceed without counsel, saying at one point, "I feel as though I can explain it a lot better than an attorney."

Sternman directed several questions to the judge concerning his legal rights, the powers of the Justice Department, and why he had not been cited for contempt on a previous refusal to give grand jury testimony. He was then called upon to enter a plea to the indictment. He replied, "I plead guilty, but not for not answering questions to the Grand Jury as you have ordered me to." He was questioned further and indicated that he understood the charge and the possible consequences of a plea of guilty; he also stated that the plea was freely entered.

Two days later, Sternman was brought before Judge Young for sentencing. He was told then that he could withdraw his plea of guilty and receive a jury trial if he so desired. Sternman replied, "I pleaded guilty to not obeying your order. I still stand on it." The judge imposed sentence to commence at the end of the sentence Sternman is now serving.

On the Rule 34 motion it is argued that the indictment should have been dismissed for failure to allege the "essential facts constituting the offense charged" as required by Rule 7(c), Federal Rules of Criminal Procedure. On his motion to withdraw his plea of guilty, Sternman contends (1) he did not knowingly enter an unequivocal plea of guilty; (2) he did not make a valid waiver of counsel; and (3) the court failed to make the inquiries required under Rule 11, Federal Rules of Criminal Procedure, before accepting the plea of guilty.

Looking first to the Rule 34 motion, we think the indictment was sufficient.¹ Rule 7(c) requires only that "the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." The charge must be in sufficient detail that the accused can plead former jeopardy in case he is later charged with a similar offense arising out of the same facts. Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 39 L.Ed. 704 (1895). Also see Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L. Ed.2d 240 (1962); United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L. Ed. 92 (1953).

Sternman, while admitting that the present indictment would be adequate to bar future prosecutions on the same offense, argues that the essential facts were not specifically stated. It is asserted that the charge that appellant had disobeyed a lawful order of the court was a mere conclusory statement and for that reason inadequate. It is contended that facts should have been alleged which, if proven, would have established the lawfulness of the order, that is a valid proffer of immunity and the specific questions Sternman refused to answer.

Appellant relies upon Russell v. United States, supra, as support for his position. The indictments in Russell charged contempt of Congress under 2 U.S.C. § 192. The charge in that case was refusal to answer questions "pertinent to the question then under inquiry" but the subject of the inquiry was not identified. The indictments were found to be defective by reason of this omission. We think Russell is inapplicable here. The Court in that case pointed out the difficulty in trying to ascertain "the question under inquiry". Indeed there was some confusion as to the subject of the congressional investigation out of which the contempt charges originated. That problem is not present here.

It is not the grand jury's function to delve into the legal and factual basis for the court's order and make a finding that it was legal. It needs only to find that the accused violated an order of the court regular on its face, leaving the propriety of the order for the court, subject to appellate review. We hold that the indictment adequately apprised Sternman of the charges against him and was otherwise legally sufficient. United States v. Debrow, supra; Hupman v. United States, 219 F.2d 243 (6th Cir. 1955), cert. denied, 349 U. S. 953, 75 S.Ct. 882, 99 L.Ed. 1278 (1955); Butzman v. United States, 205 F.2d 343 (6th Cir. 1953), cert. denied, 346 U.S. 828, 74 S.Ct. 50, 98 L.Ed. 353 (1953).

Sternman's motion to be permitted to withdraw his plea of guilty, filed after imposition of sentence, was properly denied. Rule 32(d), Federal Rules of Criminal Procedure, provides:

"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."

Thus Sternman's motion to withdraw his plea can succeed only if "manifest injustice" be shown. There was no such showing.

In advancing the argument that Sternman did not enter an unequivocal plea of guilty, reliance is placed on Hulsey v. United States, 369 F.2d 284 (5th Cir. 1956). It is true that, when called upon to enter his plea, appellant stated, "I plead guilty, but not for not answering questions to the Grand Jury as you have ordered me to." If faced only with this version of the plea, reversal on the strength of Hulsey would seem to be required. However, Sternman clarified his position in his extensive colloquies with Judge Young. When he...