United States v. Taylor, 8467.

Decision Date02 May 1962
Docket NumberNo. 8467.,8467.
Citation303 F.2d 165
PartiesUNITED STATES of America, Appellee, v. B. D. TAYLOR, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Frank W. Hardy, Richmond, Va. (court-appointed counsel), for appellant.

William Medford, U. S. Atty. (Hugh E. Monteith, Asst. U. S. Atty., on brief), for appellee.

Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.

SOPER, Circuit Judge.

This appeal is taken from an order of the District Court which denied the motion of B. D. Taylor, under 28 U.S.C. § 2255, to vacate a sentence of imprisonment imposed upon him for the sale of narcotic drugs in violation of 26 U.S.C. § 4705(a). The grounds stated in the motion were (1) that the District Judge, in violation of Rule 11 of The Federal Rules of Criminal Procedure, 18 U.S.C., accepted a plea of guilty from Taylor without first determining that the plea was made voluntarily with understanding of the nature of the charge; and (2) that the District Judge, in violation of Rule 32(a) of the F.R.Cr.P., failed to afford Taylor an opportunity to make a statement in his own behalf before imposing sentence. Taylor alleged in his motion that if he had been given an opportunity to speak before sentence was imposed he would have stated that he was induced to plead guilty by the representations of his attorney that he would get a lighter sentence if he did so, and by the threats of the Federal Narcotics Agent in charge of the case that if he did not cooperate he would get 20 years imprisonment in the case at bar and, further, that the agent would see to it that he got the maximum sentence of 40 years on a charge pending against him in South Carolina; and that on account of these threats he pleaded guilty to a false and unfounded charge. He also alleged that the Narcotics Agent gave false testimony at the arraignment that the prisoner had sold him narcotic drugs. He requested the court to appoint an attorney to represent him and that he be permitted to be present at the hearing of his motion.

Taylor and one Jerry Ellison Ballew were jointly indicted for the unlawful sale on July 5, 1960 of narcotic drugs. They were arraigned on October 4, 1960 at which time Taylor was represented by James E. Walker, an attorney of his own choosing, who at the request of the court consented to represent Ballew also. The arraignment, according to the record made by the court reporter, consisted of the following proceedings in the District Court conducted by the United States Attorney:

"U. S. ATTY. BALEY: Jerry Ellison Ballew and B. D. Taylor, you are charged with on or about July 5, 1960, unlawfully, wilfully and feloniously selling to Narcotics Agent Richard M. Patch 493 ¼-grain Morphine Sulphate tablets for the sum of $986.00, of which a $100.00 part payment was made, not in pursuance of a written order of the person to whom said narcotic drugs were sold, in violation of the law. What is your plea?
"MR. WALKER: Your Honor, both defendants enter a plea of guilty."1

Thereupon the testimony of the Narcotics Agent was taken and recorded which showed that Taylor had sold narcotic drugs as charged in the indictment. The attorney, in answer to an inquiry of the Judge, said that he had no evidence to offer for the defendant. Argument of the attorney as to the punishment was then heard and Taylor was sentenced to 7½ years imprisonment. He took no appeal from this sentence.

Thereafter on April 17, 1961 the present proceeding was instituted in the District Court. Taylor was permitted by order of the court to present his petition in forma pauperis and an experienced attorney was appointed to represent him with leave to present such evidence as he had to support the allegations of the motion, but Taylor was denied permission to be present at the hearing on the ground that the case had been tried before the Judge to whom all the records of the trial were available.

The hearing took place on July 24, 1961 at which time the record of the proceedings at the arraignment and sentence was presented to the court together with an affidavit of the Narcotics Agent who swore that Taylor sold the narcotic drugs to him as charged in the indictment and that Taylor was not threatened or coerced in any manner at the time of his plea of guilty. On July 26, 1961 the Judge dismissed the petition stating that "from an examination of the petition, the record in the case, and the testimony offered at said hearing, the court finds the following facts." These findings were in substance and effect as follows:

(1) That Taylor had not been induced to plead guilty by representations of his attorney that he would thereby get a lighter sentence;

(2) That not only did the attorney make a strong plea on Taylor's behalf but that the defendant himself at the time of his plea was given an opportunity to make any statement that he desired in accordance with the unvarying practice of the court to grant defendants such an opportunity;

(3) That by instruction of the court the arguments of defendant and his attorney in regard to the sentence were not recorded by the reporter;

(4) That the Narcotics Agent told the truth in his testimony at the arraignment and did purchase narcotics from the defendant;

(5) That the attorney appointed to represent the prisoner at the hearing of his petition spent considerable time preparing for the hearing and produced evidence at the hearing and did an excellent job of representing the prisoner's interest;

(6) That at the time of the petitioner's trial, on October 4, 1960, and at the hearing by the court, on July 24, 1961, the prisoner was afforded every right granted to him by the laws and Constitution of the United States.

The order of the District Judge dismissing the motion refers generally to testimony offered at the hearing of the motion and specifically to evidence produced by the defendant's attorney; but the transcript on this appeal contains no record of what took place at the hearing other than the affidavit of the Narcotics Agent and we assume that the decision of the Judge was based upon his recollection of what had taken place at the arraignment on July 24, 1961, the affidavit of the Narcotics Agent, and the records of the court as hereinbefore set out.

Taylor appealed from this order and has been represented in the appeal by an attorney appointed by this court who makes a third contention that the proceeding in which Taylor was sentenced was defective in that, in violation of 28 U.S.C. § 753(b), the proceedings with regard to the arraignment and sentence of the defendant were not recorded by the court reporter.

In making a determination in this case we must consider the weight to be given to three features of the proceedings outlined above, namely:

1. The failure to give the prisoner the right of allocution before he was sentenced in accordance with Rule 32(a) of the Federal Rules of Criminal Procedure;

2. The charge of the prisoner that the Judge did not comply with the provisions of Rule 11 of the Federal Rules of Criminal Procedure that the court shall not accept a plea of guilty without first determining that the plea is made voluntarily with understanding of the nature of the charge; and

3. The failure of the court to make complete records of the proceedings at the arraignment and sentence of the prisoner.

The right of allocution was discussed by us in our opinion in United States v. Bebik, 4 Cir., 302 F.2d 335 filed this day, where it is shown that under the decision of Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 and Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473, the failure of the Judge specifically to inquire at the time of sentencing whether the defendant personally wishes to make a statement in his own behalf is not of itself an error that can be raised by motion under 28 U.S.C. § 2255. However, it was said in the Hill case, 368 U.S. 429, 82 S.Ct. 468, that the rule might be different in the context of aggravating circumstances as, for example, if the prisoner had something of importance to say and was affirmatively denied the...

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    ...for collateral relief absent evidence that the Government had a part in arousing the expectation of leniency. United States v. Taylor, 303 F.2d 165, 168 (4th Cir., 1962); cf., Pilkington v. United States, 315 F.2d 204 (4th Cir., 1963); Tabor v. United States, 203 F.2d 948 (4th Cir., See, al......
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