Von Moltke v. Gillies

Decision Date19 January 1948
Docket NumberNo. 73,73
Citation92 L.Ed. 309,332 U.S. 708,68 S.Ct. 316
PartiesVON MOLTKE v. GILLIES
CourtU.S. Supreme Court

Mr. G. Leslie Field, of Detroit, Mich., for petitioner.

Mr. Frederick Bernays Wiener, of Providence, R.I., for respondent.

Mr. Justice BLACK announced the judgment of the Court and an opinion in which Mr. Justice DOUGLAS, Mr. Justice MURPHY, and Mr. Justice RUTLEDGE concurred.

The petitioner was indicted for conspiracy to violate the Espionage Act of 1917.1 The specific charge was that, in order to injure the United States and to aid the German Reich, she and twenty-three others had conspired during the second World War to collect and deliver vital military information to German agents.

With no money to hire a lawyer and without the benefit of counsel the petitioner appeared before a federal district judge, told him that the indictment had been explained to her, signed a paper stating that she waived the 'right to be represented by counsel at the trial of this cause,' and then pleaded guilty. Under her plea she could have been sentenced to death or to imprisonment for not more than thirty years. After thirteen months in jail following her plea, the court sentenced her to four years in prison.

In this habeas corpus proceeding she charged that the sentence, resting as it did solely on her plea of guilty was invalid for two reasons: First, she alleged that the plea was entered by reason of the coercion, intimidation, and deception of federal officers in violation of the due process clause of the Fifth Amendment. Second,s he alleged that she neither understandingly waived the benefit of the advice of counsel nor was provided with the assistance of counsel as required by the Sixth Amendment. As the Government concedes, these charges entitle the petitioner to have the issues heard and determined in a habeas corpus proceeding, and, if true, invalidate the plea and sentence.2 The District Court heard evidence offered by both the petitioner and the Government, and then found that she had failed to prove either contention. 72 F.Supp. 994. The Sixth Circuit Court of Appeals affirmed with one judge dissenting. 161 F.2d 113.

On the basis of what he designated as 'the undisputed evidence,' the dissenting judge concluded that petitioner had pleaded guilty because of her reliance upon the legal advice of a Federal Bureau of Investigation (FBI) lawyer-agent, which advice 'was though honestly given, false.' Neither the District Court nor the majority of the Circuit Court of Appeals controverted this conclusion of the dissenting judge. A challenge to a plea of guilty made by an indigent defendant, for whom no lawyer has been provided, on the ground that the plea was entered in reliance upon advice given by a government lawyer-agent, raises serious constitutional questions. Under these circumstances we granted certiorari in this case. 331 U.S. 800, 67 S.Ct. 1517.

It thus becomes apparent that determination of the questions presented depends upon what the evidence showed. There was conflicting testimony on many points in this case. We do not attempt to resolve these conflicts. Our conclusion is reached from the following facts shown by the testimony of government agents or by undisputed evidence offered by petitioner.

The petitioner was born in Germany. In that country she bore the title of countess. She and her husband came to the United States in December, 1926. Since 1930 they have lived in Detroit where the petitioner has been a housewife and her husband an instructor in German at Wayne University. Her husband is a naturalized citizen of the United States; her own naturalization papers have been pending for some time. They have four children, three of whom were born in this country as American citizens.

August 24, 1943, between 6 and 7 a.m., six FBI agents came to their home. The petitioner was in bed. She was informed that she must get up and go with them. The home was searched with her husband's permission. She was taken to the local office of the FBI, fingerprinted, photographed, and examined by a physician. From there she was taken to the Immigration Detention Home, placed in solitary confinement, and, with one exception noted below, not permitted to see or communicate with anyone outside for the next four days. Two FBI agents persistently but courteously examined her every day from about 10 a.m. until about 9 p.m. She knew nothing about her arrest and detention except that she was being held indefinitely on a presidential warrant 'as a dangerous enemy alien.' She was informed 'that the FBI is an investigating agency, and not a prosecuting, and as an enemy alien I (she) was not allowed to see an attorney.' During this first period of questioning, the only relaxation of petitioner's incommunicado status was a single permission to relay instructions through an FBI agent to her husband who was told how to look after their nine-year-old disbetic child. The child, for whom the mother had specially cared since his infancy, required a strict diet and injections twice daily.

September 1, eight days after her early morning arrest, petitioner was taken before an Enemy Alien Hearing Board. She was not then informed of any specific charges against her, but she was told that she could no be 'represented by a legal attorney' at the hearing. The results of this hearing were not make known to her. At its conclusion she was returned to the detention home.

September 18 the petitioner was handed the indictment against her. In our printed record this document covers a little more than fourteen pages. It charges generally, in the language of the statute, that the twenty-four defendants conspired to violate the statute. It also enumerates forty-seven overt acts alleged to have been performed in pursuance of the objects of the conspiracy, five of which acts specifically refer to the petitioner. Four out of the five merely allege that the petitioner 'met and conferred with' one or more of the other defendants; the fifth alleges that she 'introduced' someone to one of the defendants.

September 21, almost a month after her arrest, the petitioner and a co-defendant, Mrs. Leonhardt, were taken to the courthouse for arraignment. Upon being told that the two defendants had no attorney and no means to obtain one, the judge said he would appoint counsel right away and would not arraign them until they had seen an attorney. They were then led 'to the bull pen to wait for the attorney.' Before any attorney arrived they were taken back into the courtroom. Court was in session. As explained by petitioner and corroborated by others, 'Judge Moinet was on the bench, and there seemed to be a trial going on because Judge Moinet appointed a lawyer in the courtroom. He said 'Come here, 'so and so,' and help these two women out,' and the young lawyer objected to that; he sad he didn't want to have anything to do with that. But then he consented just for the arraignment, to help out, and he came over to uswe were sitting on the side bench, and he asked me, 'How do you want to plead?' I said, 'Not guilty.' And he asked Mrs. Leonhardt and she said the same thing. So he told us that, he whispered to us, in fact, he went over it, whispered that it would not be advisable, but I do not know even now why, but he suggested it would be proper to stand mute.' In this two to five minute whispered conversation (the lawyer said 'a couple of minutes') the lawyer asked both defendants if they 'understood what this was all about.' They indicated that they did. He did not even see the indictment, did not inform the petitioner as to the nature of the charge against her or as to her possible defenses, and did not inquire if she knew the punishment that could be imposed for her alleged offense. The case on trial was then interrupted, the charge was made against the defendants, who stood mute, and a plea of not guilty was entered. With reference to their future representation by an attorney, the petitioner's uncontradicted testimony was that the judge 'said he would appoint an attorney right away, and I understood that the gentleman was to be expected to come right away.'

The two women, unable to get out on bond, were then immediately taken from the courthouse to the Wayne County jail. The matron there informed the petitioner that she had strict orders to hold the petitioner and Mrs. Leonhardt 'incommunicado.' Notwithstanding this order, however, the FBI agents continued to visit and talk with both of them and a third defendant, Mrs. Behrens, every day except Sunday. During this period all three of them were allowed to read and discuss among themselves the unfavorable newspaper reports which their arrest and indictment had occasioned. They talked also with the FBI agents about this adverse publicity and about how they should plead to the charges.

September 25, one month and one day after Mrs. von Moltke's arrest, two lawyers came to the jail to see her. They had been sent by her husband. One of them appears to have taken the husband's language course at Wayne University. These lawyers' message was the first communication she had been permitted to receive from her husband since her removal to the county jail. She had been so well shut off from the outside world that she thog ht he did not even know where she was then confined. These lawyers informed her that, although they had come at her husband's request, they would not represent her as counsel. Fourthermore, they warned her that they would not even hold what she said in confidence, and that they would feel free to disclose anything she told them to the Government. Only one of the lawyers appeared at the trial. He testified that the petitioner was concerned during their visit for her children and her husband, whom the university had removed from his $4,000 position the day after her arrest. She particularly inquired whether it would help her husband to get his university position back if she pleaded...

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    ...record was insufficiently clear to permit us to determine the basis for the district court's decision. See, e.g., Von Moltke v. Gillies, 332 U.S. 708, 727, 730-31 (1948) (vacating denial of habeas petition and remanding for the district court to "make explicit findings" on issues relating t......
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