(concurring specially).
I agree with the affirmance of the judgment and with most of what is said in the opinion of the majority affirming it, and ordinarily would content myself with saying so. In my opinion, however, the sheer audacity, not to say effrontery of movant’s attempt, under the undisputed facts in this case, while holding on to benefits obtained by him in pleading guilty, to repudiate in the name of due process his acts in doing so and the support accorded his contentions and views in the opinions of the dissenting minority constitute a massive assault upon the validity of countless thousands of sentences entered upon pleas of guilty taken as this one was and the integrity of the federal judicial system, indeed upon the judicial process itelf.
Convinced as I am that the contentions of the appellant and the conclusions of the dissenting judges with respect to them are based on demonstrably erroneous assumptions both of fact and of law, I feel compelled for myself and in my own way to do what I can, by stating *574as briefly as may be what I regard as the controlling facts in the case at bar and, with equal brevity, the controlling principles of law, to conclusively demonstrate that, as applied to this case, the views of the dissenters, in support of their opinion that the judgment appealed from should be reversed, are without sound basis.
As stated in some of the opinions of my colleagues and more fully disclosed by the record, appellant, who has many times appeared in this court,1 having on October 20, 1953, been arraigned and advised of his right to assistance of counsel, waived counsel and, having pleaded guilty to the first count of the indi.ctment on which he was convicted below, was given a one year sentence.
Nearly three years later, feeling, as he expressed it in his testimony, some resentment toward the Assistant District Attorney, Mr. Tysinger (Rec. 44), although he felt crummy about welching on his agreement with Mr. Tysinger, because he felt that Tysinger had welched on his agreement on a certain nine months jail time (See the opinion of this court in Shelton v. United States, 234 F.2d 132), filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. He further stated (R. 45) “I still confess I feel somewhat badly about making a motion like this”.
After a lengthy hearing (R. 143-150), the District Court stating, “It appearing that the defendant in this ease was duly arraigned, voluntarily waived counsel, freely and voluntarily entered a plea of' guilty and received a sentence of one year, upon the recommendation of himself and the Assistant United States Attorney, concurred in by the Judge, expressed gratitude to the Court for the sentence, served almost the entire year before making any complaint, no sufficient grounds appear to justify the vacation of his sentence.” (R. 150)
Appellant had himself handled the trial of this case (the same case, this indictment superseding indictment No. 19934; see R. 16) in the District Court for two days in July, 1953 (resulting in mistrial), assisted part of the time by amicus curiae appointed by the court (R. 22, 23, 24) and had of course been observed by the same District Judge who sentenced him on Oct, 20, 1953. In fact the District Court was impressed by the way he handled his trial. Appellant had had a good deal of personal experience in courts (R. 22) and apparently knew well how to conduct himself there.
In the position of having received the full benefit of his plea through the dismissal of the other indictments against him and the limiting of the sentence in this case to one year, a plea which, upon the undisputed evidence, was and was found to have been willingly and understanding^ made, appellant is here urging upon this court to substitute itself for the district judge and, completely ignoring the actions and findings of the district judge to determine for itself what is just and right in the premises. That the judges of this court cannot do this under the circumstances of this case is, I think, completely settled by the cases.
In Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009, the Supreme Court laid down, and the courts have uniformly followed, the basic principle which rules this -case and requires a judgment of affirmance, a principle with which the views of the dissenters are in irreconcilable conflict:
“A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads he may be held bound. United States v. *575Bayaud, C.C., 23 F. 721. But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any question of guilt or innocence. * * * ” 274 U.S. at pages 223-224, 47 S.Ct. at page 583. Friedman v. United States, 8 Cir., 200 F.2d 690; United States v. Swaggerty, 7 Cir., 218 F.2d 875, and many others may be cited to the same effect.
Rule 11, Federal Rules of Criminal Procedure,2 and the cases construing and applying it are but the crystalization3 into rule of these long standing principles.
Under these principles, it is settled law that, upon a motion under Sec. 2255 to vacate a judgment and set aside a plea of guilty, the burden of proof is on the movant to establish by a preponderance of the evidence that he has been deprived of some right under the Constitution, Hearn v. United States, 7 Cir., 194 F.2d 647, and it has been definitely and repeatedly held that while a court may not accept a plea of guilty without first determining that the plea is made voluntarily with understanding of the nature of the charge, it is precisely and uniformly held that no particular form or ritual must be followed in making this determination. United States v. Davis, 7 Cir., 212 F.2d 264; Friedman v. United States, 8 Cir., 200 F.2d 690; Williams v. United States, 5 Cir., 192 F.2d 39. In Harris v. United States, 5 Cir., 216 F.2d 953, this court said:
“The issues of fact raised by the motion to vacate the judgment and sentence and to withdraw the plea of guilty were for the trial court to resolve, and its decision may not be overturned on appeal unless it is clearly erroneous and constitutes an abuse of discretion.”
while in Williams v. United States, 5 Cir., 192 F.2d 39, 40, this court said:
“To constitute a sufficient reason for withdrawal of a plea, * * * the circumstances must amount to a fraud or imposition upon the defendant, or a misapprehension of his legal rights.” (Emphasis supplied.)
Obviously, the district judge was in a better position when the plea was taken to observe and determine the defendant’s understanding of his plea than are we.4
In United States v. Di Martini, 2 Cir., 219 F.2d 807, 808, the court held:
“Defendant has had an extensive hearing, including full testimony, before an experienced and patient trial judge who has decided against him on factual issues; and no question of law remains.”
With the law and its markers standing so plainly thus, how, may it be asked, *576could the dissenting judges have fallen into the error of their way? The short and simple answer is that a reading of their opinions, written in this case, at first for the majority and later in dissent, clearly shows both the source and the cause of the errors into which they have fallen.
The first of these, a wholly unwarranted assumption of fact, is that the district judge, when the plea was taken, did not observe and obey the rule forbidding him to accept the plea, “without first determining that it was made voluntarily with understanding of the nature of the charge”, and the consequences of the plea. Nay, more, in the original opinion, written by the dissenting judges in this case when they were in the majority, flatly holding, without I submit, a syllable of evidence to base the holding on, that the district judge did not comply with the mandate of Rule 11, they went on to concede:
“The present motion would be obviously without foundation, and probably would not have been made, if the district court had complied with the mandate of Rule 11, F.R. Crim.Proc., not to accept the plea of guilty ‘without first determining that the plea is made voluntarily with understanding of the nature of the charge.’ ” (Emphasis supplied.) [242 F.2d 112.]
Starting with this basically erroneous assumption, made, I submit, without any supporting evidence and in the face of the controlling principle that the official action of a district judge must be presumed to have been rightly taken unless clear proof to the contrary is made, the dissenters hold that the district judge failed “to comply with his duty” to observe and obey the governing rule. Proceeding from this basic misapprehension, the dissenters in their first opinion say [242 F.2d 112]:
“The failure to comply with it (the rule) does cast the burden on the Government to show that the plea of guilty was voluntarily and understandingly made. That it was understandingly made in this case is not controverted, but the question is, was the guilty plea made voluntarily.” (Emphasis supplied.)
Dealing with the same matter in their dissenting opinion and again making the same factual assumption that the district judge had failed “to comply with his duty” of determining before accepting it that the plea was voluntarily made, they change their first statement only to say, “The failure to comply with it, however, keeps in existence the burden originally on the Government to show that the plea was voluntarily and understandingly made”. (Emphasis supplied.) [246 F.2d 578.]
Proceeding upon and from this assumption and pronouncement that the district judge had failed “to comply with his duty” in accepting the plea, the appellant and the dissenters go on to state that, as a result, the burden was on the United States to prove that the plea was voluntarily made instead of, as the law provides, on the petitioner to show the contrary. Finally, the dissenters fall into the fatal basic error of declaring, in the teeth of the authorities cited and quoted from above, that a plea of guilty is the same as an extra judicial confession of guilt and is to be regarded and dealt with in accordance with the rules governing confession. As pointed out above, the exact contrary of this is true. A plea of guilty is not a confession; it is a conviction. Proceeding upon and from this error, which in my opinion is the head and front of their whole misapprehension, they further compound it with the error of declaring, in the face of the authorities above cited holding that this is not so, that it is the duty of a judge when a plea of guilty is entered to determine “that the plea is so voluntarily made as to furnish reliable and trustworthy testimony that the accused is in fact guilty. For if, on judicial inquiry, the conclusion is that it was that promise, whether subsequently made good or not, that really brought about the guilty plea, then the plea was congenitally defective because it was the product of a *577decisive, potent, but extraneous force, [246 F.2d 579] and this in the teeth of the authorities that the question of guilt or innocence is not to be examined on a motion to vacate a sentence or on the entry of the plea itself.
Upon the basis of these views above set out, the dissenters come up with this final view, that it is a fundamental requirement of our system that if a promise or representation entered into the matter at all, a plea of guilty is not good. Conscious, however, that in the present state of the law they are not on completely sound ground but clinging to the basic error that a plea of guilty is an extra judicial confession, the opinion, after stating: “Perhaps a plea of guilty induced in part by promises may nevertheless be trustworthy” goes on to say [246 F.2d 580]:
“But certainly such inducement adds emphasis to the burden of the district court to ascertain that the main, the predominant, motive of the defendant for pleading guilty is that he intends freely and voluntarily to confess that he is guilty.”
Viewed apart from their confusion of a plea of guilty with an extra judicial confession, I have no fault to find with this statement. The difficulty in the way of its use in this case is that upon this record it must be presumed that the district judge did do all that was necessary to support his determination that the plea was voluntary, and in the absence of proof that it was not voluntary, the mere fact that there was a preliminary discussion with the Assistant United States Attorney as to the sentence he would recommend, cannot prevent the plea from being voluntary. Further, following their incorrect conclusion that a plea of guilty is in essence the same as an extra judicial confession, a view denied by all the authorities, the appellant and the dissenters, making much of the facts, as stated by them: that he had had one trial resulting m a mistrial ; that he had offered to waive a jury and be tried before the court; that on the hearing of the present motion he offered to prove his innocence and his offer was declined by the court; that he has not once confessed his guilt except by plea of guilty; contend that this court is authorized to, and, notwithstanding that it is in the face of the express finding of the district judge to the contrary, must find that the defendant in entering his plea of guilty was not voluntarily pleading guilty and the district judge knew that he was not. Upon this basis, and this basis alone, the dissenting opinion returns to the basically unsound conclusion with which it began, “The entry of a judgment of conviction upon such a plea of guilty was, we think, beyond the pale of due process”.
It is my considered opinion, on the contrary, that to allow the appellant to prevail in this case would be to unwarrantedly and unjustly put the district judge in error and to deny the government the due process to which it, as well as a defendant, is entitled. As we have pointed out in several opinions,5 justice is not a one way street. Due process is not for the defendant alone. The government, though denied the right of an appeal, has the same fundamental right to due process as the defendant has. This will certainly not be accorded it here if, contrary to every equitable principle known, the appellant can on this record, as he contends and the dissenting judges agree he can do, while holding fast to the benefits of his plea, repudiate it.
. 197 F.2d 827: 205 F.2d 806: 223 F.2d 249: 234 F.2d 132.
. “Hule It. Pleas
“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. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.” Federal Rules of Criminal Procedure, Title 18 U.S.C.A.
. As shown in the notes of the Advisory Committee, “This rule is substantially a restatement of existing law and practice, 18 U.S.C.A. former § 564 * * *; Fogus v. United States [4 Cir.], 34 F.2d 97 (duty of court to ascertain that plea of guilty is intelligently and voluntarily made).”
. Wigmore, who contributed as much as or more than any other to the idea that judging is administration and who was a friend and defender of the field forces of the law, the trial lawyer and trial judge, has thus correctly pointed this out:
“ * * * In the great days of Erskine, Eldon, Garrow, and Denman, the appellate judges were also trial judges. The peculiar American separation of the trial judge from the appellate judge has tended to make the latter more and more of a legal monk, immured in a Carthusian cell and cultivating his little plot of the law’s barren logic.” 1 Wigmore, Evidence, 118 (1923).
. Decatur v. Hiatt, 5 Cir., 184 F.2d 719; Bowen v. United States, 5 Cir., 192 F.2d 515; Kimbrough v. United States, 5 Cir., 226 F.2d 485.