(dissenting).
The petition for rehearing makes no attack on that part of the original opinion 1 which accords the movant, appellant, an opportunity to attempt to show that his conviction was invalid 2 and that is not questioned in the opinion on *578rehearing. Since, however, that ruling was an important departure from our decision in Van Meter v. Sanford, 5 Cir., 99 F.2d 511, and from the other cases listed in footnotes 8, 9 and 10, to the originál opinion,3 we would call attention that it receives inferential support from a decision of the Supreme Court rendered only two days before the date of the original opinion. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393.
The intention of the original opinion was not,- as the majority now reads it, “to accept the thesis that if a motivating cause which impelled him (the accused) to enter the plea was a promise by the Government to seek the dismissal of an additional count in the pending indictment and the dismissal of an indictment pending in another district and to recommend a sentence of a year the plea could not, ás matter of law, be voluntary.” Instead, the former dissenting opinion had accurately'defined “* * * the principal thesis proclaimed by my colleagues": that a plea of guilty is subject to impeachment merely because it has been induced by a promise of recommended leniency,” 242 F.2d 113.
Speaking of the mandate of Rule 11, Federal Rules of Civil Procedure,4 the original opinion said:
“We doubt, however, whether that requirement is so fundamental as to be availed of on a writ of corana no-bis if the accused’s voluntariness and understanding in fact be proved. The failure to comply with it, however, 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?”5 242 F.2d 101, 112.
Again it was said in the original opinion:
“If a plea of guilty is made upon any understanding or agreement as to the punishment to be recommended, it is essential, we think, that, before accepting such plea, the district court should make certain that the plea is in fact made voluntarily. Otherwise, the plea is subject to impeachment as having been induced by a promise of recommended leniency.” 242 F.2d 101, 113.
The majority opinion states:
“The hearing record also contains facts which when considered with those introduced by Shelton from outside the trial record, warranted the finding here appealed from that the plea had been ‘voluntarily entered.’ These facts are set out in the majority opinion previously published, including the statement of Shelton’s expression of thanks to the court immediately following the imposition of the one year sentence.”
Thus we all agree that the facts are correctly set forth in the former opinion, but from those facts we draw diametrically opposite conclusions, for it seems to us that they show that the petitioner has met a burden which was not his and has positively and, affirmatively proved *579that the plea of guilty was not voluntarily made.
We believe, therefore, that our differences arise not from the facts themselves but from our concept of what constitutes voluntariness. The definition of voluntariness contained in footnote 2 to the opinion of the Court on this rehearing seems to us entirely too circumscribed. With deference, we submit that a plea of guilty, a confession in open court,6 is subject to no less rigorous tests than those applicable to simple confessions. In either case, voluntariness requires that the confession be not induced by a promise or a threat, and more, that it be in fact voluntarily made. Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 69 L.Ed. 131. The reason of the requirement in each instance is to make certain that the confession is trustworthy testimony of guilt and to avoid accepting a plea of guilty from an accused who may be innocent. 3 Wigmore on Evidence, 3d Ed., § 822. The term “voluntary,” as Professor Wig-more points out, is misleading.
“All conscious verbal utterances are and must be voluntary; and that which may impel us to distrust one is not the circumstance that it is involuntary, but the circumstance that the choice of false confession is a natural one under the conditions.” 3 Wigmore on Evidence, 3d Ed., § 824, pp. 251, 252.
We recognize the existence of the practice stated by our Brother Tuttle in his dissent from the former opinion:
“It is generally known that the great bulk of criminal cases are disposed of by pleas of guilty made after some discussion between the defendant and/or his counsel and the prosecuting attorney in which the latter frequently makes some commitment as to the sentence he will recommend or as to other charges or prosecutions he will drop; if this were not so, or if this Court holds that it may not be so, there would be few inducements for any person to plead guilty.” 242 F.2d 101, 115.
The very statement of that practice, however, concedes that such promises or commitments are inducements for the accused to plead guilty. Such inducements in any particular case may be sufficient to elicit an untrue plea of guilty. The prevalence of that practice demonstrates the importance, indeed the imperative necessity, for the court itself 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 decisive, potent, but extraneous force.
If, as the Court now holds (see note 2 on rehearing and notes 2 through 11, original dissent, 242 F.2d 101, at page 114), threats, misrepresentations or improper promises may vitiate the plea, a serious question, nowhere answered, arises : Why should any of these factors destroy the plea? Surely, it is not a sort of retributive punishment for wrongfully using force, uttering threats, or the making or breaking of promises. The vice is not that a misrepresentation was made and because of that the bargain may be rescinded. The vice is that because of that representation the accused was led to announce his guilty plea. The vice is not that threats or force were employed so that all must be undone because some officer violated the civil rights of the accused. The vice is that, because of those actions working on mind, body and will of the prisoner, he was led to take the step of making a guilty plea and which he otherwise would not have done. If, as the Court now so *580plainly holds, the impact of such influences may undermine a guilty plea, upon what ground can any other equally effective extraneous factor be considered innocuous? The question is not: Was a promise made, and if so, was it kept? Rather it is: Was the promise as made and kept the real motivating cause for the plea? If it was, then, like one induced by the third degree or the making of false and untrue representations, it cannot stand.
We are dealing here not with any logician’s exercise in which we carve up these variables into neat little categories. We are dealing here not with whether the accused “was in any way misled or imposed on.” We are dealing with a fundamental requirement of our system that the machinery of the law in no way be used to bring about the guilty plea with its awful finality unless it represented the genuine free expression of the prisoner’s will. Anything less means, if history is our guide, that it is man and his freedom, not the unfortunate prisoner in the dock, who is “imposed on.”
Both promises and threats are inducements to untrue confessions and pleas of guilty. The sufficiency of either a promise or a threat to elicit an untrue plea depends upon the circumstances of the particular case. Perhaps a plea of guilty induced in part by promises may nevertheless be trustworthy, 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.
From the time the indictment is presented or information filed to the entry of the judgment of conviction, and throughout all forms of review of that judgment, the primary matter to be determined is the guilt or innocence of the accused. We err grievously when we allow ourselves to be diverted by other inquiries, such as whether the accused made a good bargain and whether the bargain was kept; the sole inquiry should remain, was the plea of guilty made under such circumstances as to constitute it reliable and trustworthy evidence of the accused’s guilt of the offense with which he was charged.
With deference, we submit that the only answer that can be reached on the present record is “No.” The accused had from the beginning contended that he was innocent; on a plea of not guilty, he had undergone one trial until a mistrial was declared through no fault of his; he had then offered to waive a jury and be tried before the court, and the Government had declined; on the hearing of the present motion, he offered to prove his innocence and his offer was declined by the Court;7 not once has he in any way confessed his guilt, except by the plea of guilty under attack; and it is conceded that he entered that plea in reliance upon not one, but several, material promises on the part of the Government. To this good day the record, as supplemented upon the last hearing, discloses no reliable and trustworthy reason to believe that the accused was guilty of the offense for which he was convicted.
The entry of a judgment of conviction upon such a plea of guilty was, we think, beyond the pale of due process. We therefore, respectfully dissent.
, Reported in 242 F.2d 101, et seq.
. See 242 F.2d 110, 111, 112.
. See 242 F.2d 110.
. “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.” Rule 11, 18 U.S.O.A. In footnote 11 to the original opinion, attention was called that the re- ■ quirement 'of that rule was simply a restatement of the pre-existing law. It was well said .in 2 Wharton’s' Criminal Evidence, 11th ed„ § 587, p. 976: “No court ought to accept a judicial- confession as final until a most searching in- , vestigation has been made into all the • conditions and surrounding circumstances.”
. We think now that the second sentence , of that quotation should be corrected to read:
“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. 2 Wharton’s Criminal Evidence, 11th ed„ § 587, p. 974, Note 4.”
. See authorities collected in footnote 12 to original opinion, 242 E.2d 112, to which many others might be added. See 2 Wharton’s Criminal Evidence, 11th ed., § 587, pp. 973-976.
. See 242 F.2d 103.