United States v. Tateo

• Decision Date: 08 February 1963
• Citation: 214 F. Supp. 560
• Parties: UNITED STATES of America, v. Rocco TATEO, Defendant.
• Court: U.S. District Court — Southern District of New York

214 F. Supp. 560

UNITED STATES of America, v. Rocco TATEO, Defendant.

United States District Court S. D. New York.

February 8, 1963.

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Vincent L. Broderick, U. S. Atty., for Southern District of New York, New York City, Charles A. Stillman, Assistant U. S. Atty., of counsel, for United States of America.

Gaynor, Mosher, Freeman, Glick & Pisani, New Rochelle, N. Y., Joseph R. Pisani, Robert A. Freeman, New Rochelle, N. Y., and Frances Kahn, New York City, of counsel, for defendant.

WEINFELD, District Judge.

The defendant, now serving a sentence of twenty-two and one-half years, moves pursuant to section 2255 of Title 28 United States Code, to vacate the judgment of conviction entered upon his plea of guilty on the ground that the plea was coerced. The motion was first heard in July, 1961 in the Criminal Motion Part before a Judge other than the Trial Judge who denied it without a hearing.¹ Petitioner appealed and while his appeal was pending he moved for a rehearing in the District Court, filing additional affidavits. The Court of Appeals remanded the matter to the District Judge who had denied the defendant's motion "for consideration of a petition for rehearing now pending before him."² The District Judge, with the consent of the Government, then granted the defendant's motion for a rehearing and ordered a hearing to be held in the Criminal Motion Part. Thus the matter came before this Court, which conducted a hearing and took testimony upon the issues presented by the defendant's original motion as supplemented by the additional affidavits.

On March 30, 1956 Rocco Tateo, the petitioner, and two others, Arthur Paisner and Angelo John, were charged in a five-count indictment with violations of the Federal Bank Robbery Act and conspiracy so to do.³ The charges included: bank robbery by force and violence, under section 2113(a) of Title 18, United States Code; taking and carrying away, under section 2113(b); receiving and possessing, under section 2113(c); and kidnapping in connection with the robbery, under section 2113(e).

Prior to the trial, Paisner pleaded guilty to all counts except the kidnapping count. Tateo and the remaining codefendant, John, stood trial. On the fourth trial day, May 21, 1956, Tateo withdrew his plea of not guilty and pleaded guilty to all counts except the kidnapping count. On June 5, 1956, following receipt of a presentence report, the Trial Judge imposed a total sentence on Tateo of twenty-two years and six months.⁴

The essence of the petitioner's present claim⁵ is that his plea of guilty was not voluntary, but was the product of coercive influence generated by the Trial Judge's statement in the midst of trial that if the defendant continued with the trial and were found guilty, the Court would impose a life sentence upon the kidnapping charge and maximum consecutive sentences on each of the remaining four counts to be served consecutively to the life term.

The defendant, his former attorney and his sister testified at the hearing. On the fourth trial day before the taking of testimony was resumed, the Judge called a robing room conference at which were present Tateo's attorney, the attorneys representing the codefendant, Angelo John, and the two Assistant United States Attorneys who were prosecuting the case. The Court, according to the testimony of Tateo's attorney, stated to the defense attorneys:

"* * * I think I ought to tell you this. If you finish the trial and your clients are found guilty, I'm going to start off by imposing a life sentence on the kidnapping charge and then I'm going to add consecutive maximum sentences on the other counts on which they are found guilty."

The Trial Judge further stated, according to the attorney, that whatever might be thought by others about sentences in excess of life imprisonment, nonetheless that was what he was going to do, and told them to "think it over." This conference took place after substantial evidence during three days of testimony had been given against the defendant by the codefendant Paisner who, after pleading guilty, had testified as a Government witness, and by Tateo's paramour.

The trial was recessed. Tateo's counsel swore that at once he conveyed to his client exactly what the Judge had said. In response to the defendant's request for his opinion, his counsel expressed the view, on the basis of the testimony already received, that the Government's case was strong; that there was an excellent chance of conviction, and that he urged Tateo rather strongly to plead guilty. He further testified that he spent about half an hour discussing the situation with the defendant and that during this half hour the defendant mulled it over. Finally, the defendant said he wanted to get it off his chest and would go along with his lawyer's advice to plead guilty. Up to this time, the attorney testified, there had been no conversations between him and his client as to a change of plea, and that it was the Trial Judge's statement which directly led to the discussion about the withdrawal of the not guilty plea. On cross-examination by Government counsel, the attorney admitted he did not advise his client not to plead guilty because he had been threatened by the Court, although he regarded the Court's statement as unfair and pretty close to a threat.

The defendant testified that during a recess on the fourth day of trial his attorney said to him, "I can't let you continue with the trial," and then informed him of the Judge's statement substantially as testified to by his trial counsel; that his counsel also told him that under such a sentence he would never get out of prison, and urged him to plead guilty, saying, "I can't gamble with your life. We can't go on with the trial; I won't let you." He further testified that he understood a life sentence plus consecutive sentences to mean that he would never get out of jail and that he was not informed the Court was without power under the Federal Bank Robbery Act to impose consecutive sentences. His counsel likewise swore this matter was not discussed. Finally, the defendant swore that it was the Trial Judge's statement and the persuasion of his lawyer based thereon that caused him to withdraw his original plea of not guilty and to plead guilty.

Defendant also testified that within five or ten minutes after this initial conference with his lawyer, he was importuned by his wife and sister to accept his lawyer's advice and to plead guilty in view of his report to them about the Judge's statement. The defendant's sister testified that both she and his wife entreated him to plead guilty because of the information which the attorney had conveyed as to the Court's statement and the lawyer's position that he could not gamble with the defendant's life.

The record indicates that the plea of guilty was entered shortly after the robing room conference.⁶ The defendant, when questioned by the Trial Judge, pursuant to Rule 11 of the Federal Rules of Criminal Procedure, to ascertain whether the plea of guilty was voluntary and understandingly entered, acknowledged that it was made freely and without coercion or duress. He contends, however, that in fact the fear of spending the rest of his life in prison under a life sentence plus consecutive sentences led him to plead guilty; that it was not a voluntary, but a coerced plea.

The Government called no witness to challenge the attorney's testimony as to what the Trial Judge had told him or that, in turn, he had conveyed the message to the defendant. To be sure, there are some inconsistencies between the testimony of the lawyer and that of his former client. The lawyer denies he ever told the defendant, as the latter testified, to answer agreeably when questioned by the Court as to the voluntariness of the plea or the absence of duress, coercion, or any promises. The attorney also did not recall that he told the relator he would not allow him to gamble with his life, or that before the entry of the plea of guilty he had informed the defendant's relatives of the Court's statement; he believed that he had conveyed this information to them after the plea of guilty. However, these matters are not of material significance on the issue presented by petitioner's motion, since his fundamental claim that the Trial Judge made the statement attributed to him has been fully established and is not controverted. Indeed, the Government, for the purposes of this motion, assumes that the statement was made and transmitted to Tateo, but contends that notwithstanding, his plea of guilty was voluntary.

The issue presented falls within a narrow compass, to wit, whether the statement by the Trial Judge made and conveyed to the defendant before the completion of the Government's case, but after substantial evidence to support the indictment charges had been presented, that if the defendant proceeded with the trial and were found guilty, the Trial Judge would impose maximum and consecutive sentences upon the various counts of the indictment, which the defendant was advised by his lawyer and which he understood meant actual life imprisonment, resulted in a coerced plea either as a matter of law or upon the facts, or both.

To further confine the issue, some preliminary observations are in order. The defendant's guilt or innocence is not in issue on this motion. And neither the passage of time nor the absence of any showing that in the event of a new trial a different result is likely requires the denial of the defendant's motion.⁷ Moreover, the fact that the defendant in open court at the time of the entry of the plea stated that it was not coerced, while evidential on the issue, does not foreclose inquiry as to its voluntariness.⁸

A defendant has a fundamental right to stand trial and to require the Government to establish the charges against him in accordance with substantive and procedural due process requirements of the Federal...