Robert E. Meyer v. United States

LAY, Circuit Judge

(dissenting) :

I respectfully dissent. On the basis of this record, a finding that petitioner’s plea of guilty was voluntarily made is, in my opinion, clearly erroneous. I think the clear weight of the evidence requires us to hold that petitioner’s plea of guilty was involuntarily made.1 I likewise feel that the judgment and sentence should be vacated because the government failed to disclose to the district court, at the time the plea was taken, that it had negotiated the plea with the defendant-petitioner.

I. THE FACTUAL SETTING

I cannot agree with my brothers, constituting the majority of this panel, that a promise or threat made by the government to an accused to induce a plea of guilty must be either in the form of a misrepresentation of fact or law, or otherwise be illegal, in order to set aside the plea of guilty as involuntarily made. The issue is not whether the inducement or promise made by the government was improper or carried out, but whether the inducement or promise was the sole basis of the defendant’s decision to plead guilty, rather than the defendant’s desire to admit his guilt-in-fact of the crime charged. The governing law in the determination of the voluntariness of a guilty plea is succinctly summarized in Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962): “A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.” This principle was recognized as the law of this Circuit before Machibro-da was decided. Judge Van Pelt recognized in Shupe v. Sigler, 230 F.Supp. 601 (D.Neb. 1964), that this Circuit in Heideman v. United States, 281 F.2d 805 (8 Cir. 1960),

“ * * * held that coercion sufficient to set aside the plea of guilty could result from conduct of a prosecuting attorney, and that allegations that a prosecutor declared his intention of treating an offense severely but offering a five year sentence with the assurance that the recommendation of the prosecutor would prevail in the event a plea was entered, if proven, present facts from which ‘it can be fairly inferred that pressure by threat and enticement were improperly brought to bear upon the defendants and their pleas were not voluntary.’ ” 230 F.Supp. at 605-606.

I find myself in full concurrence with the viewpoint of Judges Rives and Brown in their dissent in the rehearing of Shelton v. United States, 246 F.2d 571 (5 Cir. 1957) rev’d on confession of error, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958), where they observed:

“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 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.” 246 F.2d at 579-580.

The facts which lead me to dissent are uncontradicted in the record and may be briefly stated.

1. The petitioner and his wife lived in St. Louis, Missouri. On February 12, *11941968, the petitioner appeared in Kansas City, at the direction of his retained counsel, Mr. Godfrey of St. Louis, and was informed that the existing indictment for conspiracy to burglarize post offices and fence stolen stamps had been dismissed on February 9, 1968 2 This information was told to him by William L. Rudell, Postal Inspector in Kansas City. Also present was Postal Inspector Thorn. Meyer’s counsel was not present. The government then obtained Meyer’s signature to a “waiver of rights” form, wherein he waived his right to have counsel present at the interview. Rudell told Meyer that the government planned to indict him for both the burglary of the Webb City, Missouri, Post Office which occurred in October 1964, and for destruction of the government property damaged at the time. Rudell, however, told Meyer if he would be willing to. consent to the filing of an information on just one charge, the United States Attorney would possibly agree to that. Meyer refused to do so at that time.

2. Following this interview with Meyer, Rudell thought the United States Attorney's office in Kansas City would proceed with the indictment. However, Bruce Houdek, the Assistant United States Attorney wanted Meyer interviewed once more by the Postal Inspectors to again attempt to obtain Meyer’s consent to allow the government to proceed by information and to have Meyer enter a guilty plea. According to a written report of February 28, 1968, sent to the Postal Inspector in charge in St. Louis, Missouri, Rudell left little doubt as to Houdek’s desires:

“Mr. Houdek stated that when interviewed, Meyer should be informed that it is Mr. Houdek’s intention, now that the conspiracy case has been dismissed, to indict Meyer in connection with the burglary of the Webb City post office which occurred on the night of October 23, 1964. Two counts would be filed: one charging damage to Government property in excess of $100 (carrying a possible sentence of 10 years), and one charging post office burglary (carrying a possible sentence of five years). However, if Meyer wished to consent to prosecution by information and enter a plea of guilty, thus saving the Government considerable time and expense, Mr. Houdek would be willing to charge only the post office burglary, with a possible five year maximum sentence.” [Tr. 48; Petitioner’s Exhibit B]

3. On February 29, R. R. Cullom, the Postal Inspector in St. Louis, called on Mrs. Meyer and asked Mrs. Meyer to have petitioner call him. Meyer returned the call. Although Meyer testified that Cullom read over the phone what Houdek had stated, Cullom doubted that he did but could not recall one way or the other. In any event, a personal interview was set up for March 7, 1968. Meyer again appeared without counsel. At this meeting, another waiver of rights was signed by Meyer (Government’s Exhibit I), but this time Cullom had typed, at the bottom of the form, Rudell’s exact statement (reprinted above) as what the Assistant United States Attorney promised (“would be willing”) to do if Meyer would plead guilty to the burglary alone. Cullom said that although he did not specifically point out the words on the bottom of the form, Meyer was free to read it. Cul-lom, however, then read to Meyer this *1195same statement of Houdek from the February 29, 1968, report from Rudell and discussed it with him. Cullom said that Meyer appeared to be worried and fretting over the indictment and the possibility of a heavy penal sentence. However, after much discussion, once again Meyer refused to consent to the filing of the information and plead guilty “in accordance with the message from Kansas City.”

4. Still not satisfied with their unsuccessful attempts in obtaining the guilty plea, one or two days later, Cul-lom again contacted Mrs. Meyer and asked to have Meyer contact him. Once again Meyer called back and Cullom asked whether he had made a decision on what he should inform the Kansas City people. This time Meyer said he had decided that it was in his best interest to plead guilty.

5. On April 2, 1968, after his arrest and the filing of the information, Meyer signed the Rule 20 transfer and consented to waive indictment and plead guilty in St. Louis. On April 12, 1968, Judge Meredith appointed attorney Tom Men-delson as counsel for petitioner.

6. One or two days preceding the date for the plea, Mr. Mendelson interviewed Meyer for the first time. Men-delson’s testimony at the evidentiary hearing was not contradicted. Mendel-son stated upon his interviewing petitioner that Meyer told him that he had not committed the crime. However, Meyer said he desired to enter a plea of guilty on the charge contained in the information, because if he did not, the government had told him that he would then face a charge in the Western District of Missouri involving a 15-year maximum sentence. Mr. Mendelson then told the petitioner the choice was up to him, that if he was an innocent man he would have the opportunity to establish his innocence by pleading not guilty. However, he told Meyer if he went before the court he would have to announce to the court that he was making a voluntary plea. Mendelson told petitioner to think it over. A day or two later, on April 19, the date set for taking the plea, Meyer told Mendelson it was his intention to go ahead and enter a plea of guilty. Mendelson said at the time of the plea that

“it was not my intention at that time to upset any proceeding that my client whom I had been appointed to represent intended.”3

II. THE INADEQUACY OF THE GUILTY PLEA RECORD

The district court’s finding that Meyer’s plea was voluntary is basically premised on the April 19, 1968, record of inquiry conducted by the trial court at the time of the plea. At the time of his plea of guilty, Judge Meredith asked petitioner whether he was guilty of the offense charged and Meyer said, “Yes.” Judge Meredith asked whether the plea was induced by any threats or promises. Meyer answered, “No.”

On this record, it remains uncontra-dicted that Meyer’s answer was not truthful.4 What if Meyer or his law*1196yer (with Meyer’s permission) had revealed to the trial court Meyer’s previous statement to his attorney about his innocence, and that his reason for pleading guilty to the lesser charge was because the government had assured him if he did not enter a plea of guilty, they would proceed by indictment on offenses carrying a harsher penalty. Under these circumstances, it becomes rhetorical to ask, would the court have taken the plea? See McCoy v. United States, 124 U.S.App.D.C. 177, 363 F.2d 306 (1966); cf. Griffin v. United States, 405 F.2d 1378 (1968).

To ask this question, one does not have to assess the credibility of Meyer’s claim of innocence. Petitioner’s conduct here is not a claim belatedly conjured up by a prisoner to merely give substance to post-conviction proceedings.5 All evidence of the events leading up to his plea corroborate petitioner’s claim of involuntariness. There exists no reason to doubt attorney Mendelson’s credibility and his candid statement as to what Meyer told him before he made his plea Mendelson’s uneontradicted statement corroborates petitioner’s alleged state of mind before he made his plea. Bailey v. MacDougall, 392 F.2d 155, 159-160 (4 Cir. 1968); United States v. LaVallee, 319 F.2d 308 (2 Cir. 1963); United States v. Mancusi, 275 F.Supp. 508 (E.D.N.Y. 1967); United States v. Tateo, 214 F.Supp. 560 (S.D.N.Y. 1963). To the extent that such negotiations or promises, legitimately made or not, remain undisclosed to the trial court, the record of April 19, 1968, was wholly inadequate to determine whether or not the plea was voluntarily entered. This very realization lies behind the ABA’s recommended standard, § 1.5, which was issued in February 1967, one year before Meyer’s plea was taken. Section 1.5 reads:

“The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached.”6 Pleas of Guilty, supra.

*1197The trial court’s knowledge of the existence of “plea bargaining” was essential to any searching inquiry of voluntariness to make certain that Meyer’s present plea was in fact based upon his actual guilt of the crime charged and not alone induced by the government’s promise. Especially is this so when the government is dealing with a defendant with a prior criminal record, who feels he is a “loser” whichever way he turns, irrespective of his actual guilt of the crime to be charged.7 Perhaps Meyer was not telling the truth to his attorney ; perhaps, the only reason for pleading guilty was because he was in fact guilty. However, for the trial court to adequately determine this fact, it would have been essential to consider the plea in the context of the actual inducement made to Meyer by the government agents on behalf of the office of the United States District Attorney.

The government here asserts, and the majority seemingly endorses its view, that the facts here do not constitute “plea bargaining” since the negotiations with Meyer occurred prior to the time that he was actually charged with the crime. Under the facts here, the timing of the original government offer following the dismissal of the long standing conspiracy charge, the immediate “de-tainer” orally conveyed by the Postal Inspector because of further charges, the conveniently placed, typed communication added to the March 7 waiver form containing the United States Attorney’s statement as to what the government would do if no plea of guilty was given, and the continued pursuit by the government agents to obtain the plea despite Meyer’s unwillingness to succumb, this argument seems trifling to me. The vol-untariness of the plea is still the issue regardless of when the inducement is offered. To say there was no inducement made here is to ignore the uncontradicted evidence of the government itself.

It might be urged that although the negotiations were not disclosed to the trial court at the time of the plea, the same trial judge nevertheless has now weighed this inducement in light of the post-conviction hearing and has now determined that nevertheless the plea was voluntary. There are two fundamental gaps in this reasoning: (1) the trial court, as does the majority of this panel, erroneously interprets the defendant’s April 19 statement to be a plea-in-fact,8 and (2) the post-conviction finding of *1198voluntariness is erroneously based on the transcript of proceedings of April 19, 1968. The record of these proceedings, however, as we have discussed, was incomplete. The record demonstrates that Judge Meredith did not know of any plea negotiations at the time of Meyer’s plea. The record is clear that Meyer or his attorney were not about to tell him. As will be discussed later, the government did not volunteer this information. Under these circumstances, I feel it is error, in this § 2255 proceeding, to rely upon the record of the April 19, 1968, plea proceeding, as did the district court and the majority herein. Cf. Sigler v. Parker, 396 U.S, 482, 90 S.Ct. 667, 24 L.Ed.2d 672 (1970). This record does not in any way refute the evidence that petitioner’s plea of guilty was in fact induced by the government’s conduct. Viewing the totality of the evidence, it is difficult for me to reason that the petitioner’s plea of guilty was voluntarily made. It is also difficult to imagine circumstances which were more (to use Judge Weinstein’s apt appraisal) “calculated to overwhelm the ability of persons such as defendant to decide rationally whether to stand trial or plead guilty. * * *”°

III. THE GOVERNMENT’S NONDISCLOSURE OF THE PLEA NEGOTIATIONS.

There is, for me, another equally persuasive reason why the April 19, 1968, plea of guilty should be vacated. When the defendant told the trial court that no promises or threats had been made to him, the government stood mute before the court and countenanced Meyer’s false reply. If in fact the defendant’s plea was because he believed he was in fact guilty, the government had nothing to hide or lose by revealing their prior plea negotiations to the court. Once these facts had been revealed to the district court there would have followed the necessary searching inquiry on the record to make certain that a voluntary plea of guilty-in-fact was being entered. Such inquiry did not take place here simply because the court was never told the facts of negotiation surrounding the plea.

Here a defendant, who is supposedly voluntarily pleading guilty on lesser charges, falsifies a statement that no inducement or promises have been made to him by the government. I assume ar-guendo that the trial court’s plea inquiry of April 19 met both the standards of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166 (1969) and pre-McCarthy requirements under old Rule 11. However, where such inquiry of the defendant results in a response that no promises or threats have been made to induce the plea of guilty, and the government stands silently by with full knowledge that the defendant’s response is false, the gravamen of this omission far exceeds any violations of Rule 11 or the McCarthy decision. Under such circumstances, the nondisclosure has in effect been a fraud upon the court.9 10 When a defendant pleads guilty to a charged crime there is more at stake than the time and expenses of the government. In addition to the possible violation of defendant’s basic rights, there also may very well be involved in this prosecutorial misconduct, a serious breach of the public interest. Relying upon the ABA Canons of Professional Ethics, the commentator in the oft-cited article in 112 Pa.L.Rev. 865, 886 (1964), observes:

“But a prosecutor should not include additional charges merely to bring pressure on a defendant to plead guilty.
“In many situations it may be difficult even for a cautious trial judge to determine if the prosecutor’s practice *1199was designed to have, or actually had, a coercive influence on the defendant. This is especially true since the defendant is attempting to have his plea accepted and is not alleging any coercive influence. The plea proceeding is basically nonadversary; the prosecutor is attempting to have the case disposed of by plea and the defendant is trying to have his plea accepted. At this point of time the interests of the parties merge. This complicates the court’s obligation to determine whether the plea is voluntarily and understandingly made. Therefore, whenever a plea agreement has been entered into or merely discussed with a defendant or his counsel, the prosecutor has an ethical obligation to inform the court of such action in order to faeili-tate the court’s examination.” (My emphasis.)

I see little difference with this situation and one where the prosecutor acquiesces in false testimony;11 or knowingly uses fraudulent evidence;12 or fails to disclose exculpatory evidence to defense counsel.13

Greater precaution is needed where the “plea bargain” is not disclosed by the government, than in any of the above circumstances. In a proceeding where a guilty plea is taken, the entire trial process is short circuited. The hearing is nonadversary in nature and the defendant is fully conceding the government’s case. The concealment of the “plea bargain” is basically offensive to the court’s objective determination of the issue of voluntariness.14

*1200I would remand, with directions that the plea of guilty be allowed to be withdrawn, and the petitioner plead anew to the charges within the information.

. The ultimate determination of voluntariness of a guilty plea is generally one of fact, left up to the trier of fact; his resolution being based on the totality of circumstances. The petitioner carries the burden of proof to establish involuntariness by a preponderance of the evidence. Ford v. United States, 418 F.2d 855, 859 (8 Cir. 1969). A reviewing court should reverse a lower court holding only if it is “clearly erroneous.”

. Under the conspiracy indictment, it is not of little significance in viewing the totality of all the facts that twenty defendants were originally charged in the indictment and eighteen of them were convicted either by trial or guilty pleas. Approximately one year later, the indictment was dismissed against two defendants, Meyer being one of them. Mr. Houdek, the Assistant United States Attorney for the Western District of Missouri, testified that he dismissed the conspiracy charge because Meyer’s complicity in the conspiracy was “very small” and that it would not be “at all reasonable or competent to go ahead” on the conspiracy trial. This indictment had been pending since March 1967. Record 86.

. The testimony of Attorney Mendelson reflects the totality of his representation for the petitioner. In view of my findings I need not pass upon the question whether or not such constitutes “effective representation.”

. It is obvious why Meyer did not wish to disclose to the court what the government had told him. Mendelson had properly told him that if he was going to plead he must tell the court that his plea was voluntary. It would have been against Meyer's own self-defined interest to do anything to wreck the choice he had decided to make. Of course, this realization is present in any situation where a defendant has decided to accept the lesser of two possible punishments and to make a plea of guilty irrespective of whether he is guilty in fact.

“Notwithstanding the fact that the plea has been the subject of negotiation, the defendant usually answers in the negative, and the prosecutor and defense counsel seldom indicate to the contrary.” American Bar Association Project on Minimum Standards For *1196Criminal Justice, Pleas of Guilty § 3.1 (a) p. 61 (Approved Draft 1968) (hereinafter Pleas of Guilty.

And see Newman, Conviction, The Determination of Guilt or Innocence Without Trial 83 (1966) (hereinafter cited Newman).

“The following questions were asked of a defendant after he had pleaded guilty to unarmed robbery when the original charge was armed robbery. This reduction is common, and the judge was fully aware that the plea was negotiated:
Judge: You want to plead guilty to robbery unarmed?
Defendant: Yes, Sir.
Judge: Your plea of guilty is free and voluntary?
Defendant: Yes, Sir.
Judge: No one has promised you anything?
Defendant: No.
Judge: No one has induced you to plead guilty?
Defendant: No.
Judge: You’re pleading guilty because you are guilty?
Defendant: Yes.
Judge: I’ll accept your plea of guilty to robbery unarmed and refer it to the probation department for a report and for sentencing December 28.
This is a routine procedure designed to satisfy the statutory requirement and is not intended to disguise the process of charge reduction. If the defendant’s plea is trustworthy and freely given, the fact that he pleads guilty to a less serious crime than his conduct might indicate does not ordinarily put the matter of his guilt in doubt. The question and answer sequence, however, is not lihely to effectively satisfy the court that there is a factual basis for the plea.” (My emphasis.)

. In this regard it is significant that the sentence was handed down on April 19, 1968. The motion to vacate sentence was filed by petitioner approximately two months later, on June 24, 1968. Compare United States v. Mancusi, 275 F.Supp. 508 at 519.

. If we are willing to accept the obvious evils of plea bargaining (A. Blumberg, *1197Cviminal Justice (1967) ; Newman, supra ; A. Alsehuler, The Prosecutor's Role in Plea Bargaining, 36 U.Chi.L.Rev. 50 (1968)) as being balanced by the overall requirements made allegedly necessary for the effective administration of criminal law (Morris, Are Courts Too Soft on Criminals, 53 J.Am.Jud.Soc’y Jan.1970, at 231), then courts at the very minimum, should require full disclosure of the “bargain” in order to objectively assess the voluntary quality of the plea itself.

. “It might be responded that although the guilty plea system circumvents the safeguards ordinarily associated with criminal prosecutions, it supplies others of its own. A plea of guilty is, of course, the defendant’s act, and defenders of the system maintain that men do not falsely convict themselves. In effect, these defenders would permit situations in which it is to the apparent advantage of innocent men to plead guilty, and they would then insist that nothing of the sort could occur. This argument seems to depend, not on reason, but on mysticism. Some secret force will presumably hold every defendant bach, despite the fact that the concessions he was offered were deliberately calculated to overbalance his chances for acquittal.” (My emphasis.) A. Alsehuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi.L.Rev. 50, 64-5 n. 43 (1968).

. At the guilty plea hearing before Judge Meredith on April 19, the government attorney read from a report of the defendant’s alleged involvement in the crime charged. The defendant made no response and no questions were propounded to him. Then the government read a detailed history of defendant’s criminal record. Following this, the court said : “Mr. Meyer, is that a correct statement of your past criminal record?” (My emphasis.) Meyer answered: “It sounds pretty much like it, Your Honor.” Record of April 19 Proceedings, at p. 6. I cannot agree that this constituted a plea-in-fact as to the crime charged. In contrast compare the factual plea in Ford v. United States, 418 F.2d 855 (8 Cir. 1969).

. United States v. Mancusi, 275 F.Supp. 508 at 515.

. “No fraud is more odious than an attempt to subvert the administration of justice.” Hazel-Atlas Glass Co. v. Hartford Co., 322 U.S. 238, 251, 64 S.Ct. 997, 1004 (1944) (Roberts, J. dissenting).

. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967).

. Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) and Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).

. The following is an editorial dated March 27, 1970, from the Omaha World-Herald. It is entitled: “Justice by Arrangement,” and reads:

“It isn’t as bad as it sounds, but the important aspects of many criminal cases are decided behind closed doors, without the knowledge of judges or juries and without formal sanction in law.
“We refer to the practice of plea bargaining, which recently has engaged the attention of the Nebraska District Judges Association.
“In plea bargaining, the prosecution tries to get a defendant to plead guilty to a reduced charge. The benefits to the prosecutor are an assured conviction and the sav-of the time, expense and uncertainty of a jury trial. The benefits to the defendant are the lesser stigma attached to a reduced charge and the chance of a lighter sentence.
“Prosecutors generally are reluctant to talk about this process. It doesn’t fit too well with the general conception of courtroom justice, and to many it has connotations of codding criminals.
“Judges know it goes on, but they remain necessarily aloof from the process. District Judge John Burke of Omaha has said:
“ 'We’ve always had it. Every man cannot have a jury trial in every case. It’s as simple as that. There just wouldn’t be enough judges and prosecutors in the country to handle matters if every charge filed had to be tried before a jury.’
“A balance must be struck so that defendants are not given lighter sentences than they deserve, on charges irrelevant to the offense committed. Plea bargaining becomes harmful to the public interest when the prosecution gets too eager to offer lower charges and starts letting people off too easily. This can happen because the prosecutor is lazy and wants to avoid taking cases to trial, or for a more sinister reason— because he is corrupt and can be had by the defense. Neither sympton is unknown to legal pathology.
“Douglas County officials seem to have handled plea bargaining responsibly and carefully. Considering that the process is so susceptible to abuse, the community is fortunate to have a strong local court system.”
This editorial points up a community’s concern over plea bargaining. I, for one, do not feel a generalized placement of trust in public officials gives confidence for “clandestine” justice in any individual case. Pull disclosure of any “arrangement” should be a prerequisite to any judicial proceeding where a plea of guilty is entered.