L. HAND, Circuit Judge.
Paglia appeals from an order made under § 2255 of the Judiciary Code
On August 7, 1950, Paglia moved under § 2255 of the Judicial Code
The statute attaches a condition to the remedy, without which it would indeed be open to the greatest abuse. The judge must examine the "files and records of the case," and they must "conclusively show that the prisoner is entitled to no relief"; otherwise he is absolutely entitled to a "hearing." If he succeeds at the "hearing" the judge "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Thus the judge has a discretion, even though he is satisfied that some kind of "hearing" is necessary, to accommodate its extent to the relief to be given; although the "files and records" may conclusively show that the accused is not entitled to a trial, they may not show that he is not entitled to a resentence. That was the situation in the case at bar. The judge who imposed the original sentence on July 19th, held a hearing before sentence, though after the plea of guilty had been entered, at which the attorney whom the accused had retained answered the prosecutor's statement of facts; and in which he went over in detail Paglia's connection with the transactions, and conceded that he had been the "passer" for a ring of counterfeiters, and had taken the cheques in question from New York to Cleveland and cashed them there. He did not so much as intimate that all the facts were not as the prosecutor had stated them; indeed he repeated them in language which left no loophole for Paglia's innocence. All he did was to plead for lenity on the ground of Paglia's war record, and — rather absurdly — of his "youth."
So it appears that the crime charged in Counts Five and Ten was conceded; that Paglia was then present in court; that he heard all that his attorney said about him, which the attorney could only have got from him; and that he said not a word in contradiction. Furthermore his affidavit on this very motion contains not a syllable of contradiction. Thus, he has twice admitted all the facts constituting the crime and he still does not repudiate his admissions. A person indicted for crime may of course insist that only a jury shall decide his guilt; but he must at least deny that he is guilty; he must tender an issue. In the case at bar whether or not Paglia has any ground for relief as to his sentence, surely he has none for withdrawing his plea. He is not entitled to gamble upon the outcome of a trial in which he could succeed only by repudiating what he has twice conceded and does not now disavow. Justice is not a game; there is no constitutional
On the other hand so far as it sought a "hearing" as to whether the sentence imposed should be set aside, and a new sentence be substituted, it should have prevailed. Paglia was entitled to a "hearing" without a jury under § 2255 upon two issues: (1) whether the plea was induced by reliance upon the prosecutor's promise not to ask for a sentence of more than five years; and (2) whether it was induced by the prosecution's promise to dismiss Count Six. The "hearing" must be in open court; Paglia must be present and free to testify and he must be represented by counsel. If he succeeds upon either his sentence must be revoked and he must be resentenced, although we do not wish even to intimate how the trial judge ought to decide these issues. One thing indeed we do wish to say. How far the promises or representations of "other Government officials" than the prosecutor may be considered in deciding whether Paglia was induced to plead we cannot say in advance. If he chose to rely upon representations of those who had no power to commit the prosecutor, he took the same chances that anyone does who does not ascertain whether his promisor has the power to speak for another.
Finally, as to the promise to withdraw Count Six as constituting no legal consideration for inducing the plea of guilty, we hold that that will depend upon by what evidence the prosecution meant to prove it. We understand that its case against Paglia was that when he cashed the cheques in Cleveland, he knew that the banks which paid him would in due course send back the cheques to New York in order to receive credit for the money they had paid; and that he therefore set in motion and so "caused" the return of the cheques from Cleveland back to New York, which was a separate and distinct crime. Now it is quite true that, when he cashed the cheques Paglia knew, or at least he had every reason to suppose, that the result would be their return to New York, and that knowledge would suffice to establish his liability in a civil suit. It will not suffice to establish a criminal liability, because an accessory must make the venture his own; the crime must be a fulfillment in some degree of an enterprise which he has adopted as his; his act must be in realization of his purpose.
We have already held in United States v. Chiarella, 2 Cir., 184 F.2d 903, 909, that § 2(b) of the Criminal Code, 18 U.S. C.A. § 2(b), does not enlarge criminal liability; we reaffirm that ruling.
Order denying leave to withdraw the plea of guilty affirmed.
Order denying vacation of the sentence reversed and cause remanded.