HINCKS, Circuit Judge.
This case has previously been twice before this court. The first appeal was from a conviction under 18 U.S.C.A. § 1202 which we ordered reversed in United States v. Parrino, 2 Cir., 180 F.2d 613. Thereafter, some eighteen months after the reversal, the defendant (as we shall hereafter designate the appellant) was again presented to the court below and pleaded guilty to the second count of the indictment which charged a conspiracy to kidnap — an offense denounced by Section 1201(c) of the Code — whereupon the first count, charging commission of the substantive offense denounced by Section 1201(a), was dismissed with the consent of the United States Attorney. A sentence of imprisonment for two years was then imposed and the defendant forthwith entered on service of this sentence. Some seven months later, while the defendant was still in confinement, in his behalf a motion was made by his attorney "to vacate or correct the sentence." This motion was denied by the trial court by an order which, on appeal, this court affirmed, United States v. Parrino, 2 Cir., 203 F.2d 284, 287. The opinion of affirmance, however, at its conclusion stressed the view that "nothing we say is to be taken as bearing on the question whether Parrino may not upon another record move to withdraw his plea under Rule 32(d)." Agreeable to this suggestion defendant filed the motion which after denial by the trial judge is now before us on appeal.
This motion, invoking Rule 32(d) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., seeks to vacate the judgment of conviction and to permit the defendant to withdraw his prior plea of guilty (on the strength of which a sentence of two years was imposed which
Before proceeding to discuss this question we should state that the record on this appeal amply supports the finding below that in fact
But even so, we think the order should be affirmed. Generally in criminal cases, the defendant's surprise as to the severity of sentence imposed after a plea of guilty, standing alone, is not such manifest injustice as to require vacation of the judgment and permission to withdraw a plea of guilty.
Moreover, here the subject-matter of the claimed surprise was not the severity of the sentence directly flowing from the judgment but a collateral consequence thereof, namely, deportability. This is a liability which may, and in this case does, depend on a conviction of crime. But it is nonetheless a collateral consequence of conviction. It is true that many statements in judicial opinions and by text-writers may be found — and the appellant here cites several such — to the general effect that a defendant should not be holden to a plea of guilty made without an understanding of the consequences. But neither the generalities found in the texts nor the facts underlying such judicial opinions suggest that the authors of such statements meant to imply that the finality of a conviction on a plea
Doubtless there may frequently arise tax evasion cases in which after conviction on a plea of guilty the defendant is unpleasantly surprised when, confronted with a civil action for the recovery of the evaded taxes, he finds a defense foreclosed by his plea in the criminal cases. And after pleading guilty to an offense which, though of small dimensions, is classified as a felony, a defendant may be shocked to find that he has lost his civil rights, — or that, after his conviction has faded into the past, he is faced with loss of his employment because he can only answer in the affirmative some questionnaire demanding to know if he has ever been convicted of a felony. The writer of this opinion, during his tenure on the trial bench, was more than once consulted by young men, duly convicted on a plea of guilty to a comparatively small offense, who were distressed to find that a later consequence of their plea was ineligibility for enlistment in the armed services. We think it plainly unsound to hold, as now in principle we are urged to hold, that such defendants are subjected to manifest injustice, if held to their plea, merely because they did not understand or foresee such collateral consequences. We find no case which even looks in that direction,
With the defendant's principal contention thus disposed of, we find little merit left in the appeal. We do not overlook the companion contention that the defendant, if he had elected to stand trial, might have escaped conviction because of the Statute of Limitations. That defense addressed to the merits, was waived by his plea of guilty. And utterly no grounds appear in the record to support a contention that the waiver here was other than deliberate and intentional. As to this there is not even assertion of erroneous advice received by the defendant from his lawyer. Likewise, as to the defendant's assertion that notwithstanding his plea of guilty he was not in fact guilty.
We do not fail to recognize the terrific impact on the defendant's life and family of the collateral consequence of deportation. But deportability is determined by the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1102 et seq. And even if we felt that the inflexibility
FRANK, Circuit Judge (dissenting).
After defendant's first conviction and a sentence of more than a year for a
On defendant's last appeal — 203 F.2d 284, 286 — from an order dismissing a motion made under 28 U.S.C. § 2255 to vacate the judgment of conviction, we said (per Learned Hand, J.): "Even though he did not know that his plea would result in deportation, it would not result in `manifest injustice' to hold him to it, if in fact Rozen was not `liberated unharmed,' and nowhere in the record before us had Parrino said that he was not." And we concluded that opinion with the statement, "Nothing we say is to be taken as bearing on the question whether Parrino may not upon another record move to withdraw his plea under Rule 32(d)." The new record before us on the present appeal contains an affidavit by the defendant which, in effect, states that Rozen was "liberated unharmed";
The defendant before he pleaded guilty was primarily concerned, not with the length of the jail sentence that might be imposed, but with the question uppermost in his mind, whether as a consequence of being again sentenced, he could be deported. As previously noted, he addressed this question to his lawyer, a former Commissioner of Immigration, who unequivocally answered No. But for that answer, he would not have entered his plea of guilty which he now seeks to withdraw.
1. Deportation, while not literally constituting criminal punishment, may have far more dire effects on this defendant than his sentence of imprisonment for two years. For all practical purposes, the court sentenced him to serve (a) two years in jail and (b) the rest of his life in exile. For the Supreme Court has said that "deportation is a drastic measure, at times the equivalent of banishment or exile" and "is a penalty."
It has been said that (what my colleagues term) "collateral consequences," if of importance, constitute such injustice.
In cases where a defendant on appeal from a conviction asks reversal on the ground that his lawyer made a mistake during the trial, many courts have denied relief unless the mistake was magnificent and clearly prejudiced defendant. Those courts in such cases seem to have felt (1) that what might seem to be a mistake, was part of the lawyer's deliberate tactics, or (2) that, in the heat of trial, some "errors of judgment" on the part of counsel, when under such pressure, are so likely often to occur that they should not invalidate a conviction. But here the lawyer's mistake did not occur during a trial; he was under no pressure whatever; there was no need for haste. And his error cannot conceivably be described as one involving merely "bad judgment."
The courts (as I have said) do reverse a conviction on appeal when defendant's counsel was hopelessly incompetent and the incompetence seriously prejudiced defendant. So, e. g., where counsel was unfamiliar with the rules of evidence,
That a lawyer who had served as a Commissioner of Immigration, even if he had been asked for a curbstone opinion only, should give advice flatly contrary to the deportation statute would be surprising enough. But when, with ample time to examine the statute, and a Supreme Court decision sustaining its validity,
In People v. Nitti, 312 Ill. 73, 89, 143 N.E. 448, 454, the court said: "At the time the attorney appeared for these defendants he held a license from this court which certified to the public that he was competent to properly represent any client who might employ him, and any person employing him had a right to rely upon that certificate", and said that it must "take into consideration the gross incompetency and stupidity of counsel * * *." Here defendant's counsel held a "license" from the federal district court, and his conduct displayed "gross incompetence and stupidity." In Schmittler v. State, 228 Ind. 450, 467, 93 N.E.2d 184, 191, the court, after saying, "It must be presumed that" defendant's "attorney discharged his full duty and it should require strong and convincing proof to overcome this presumption," went on to say that defendant, having this burden, "did not produce his attorney's affidavit or testimony." But here defendant did produce his attorney's affidavit which demonstrates that the attorney did not, to say the least, "discharge his full duty."
My colleagues, surprisingly, refer to cases in which a defendant who, without any previous inquiry as to the consequences, is convicted on a plea of guilty, later learns that, because of his conviction, he has lost his civil rights or is ineligible for enlistment in the armed services. What has any such case to do with this case where the defendant did inquire whether conviction could lead to a life of exile and received the answer that it could not, an answer given by his lawyer, who ought eminently to know how ridiculous that answer was?
We must not be gullible but must eye with due suspicion attempts to use the Rule to circumvent justice. But, as Cardinal de Retz observed, more men become dupes through fear of being taken in than through over-gullibility. As an earnest that this man is not playing a game with the court, not seeking by clever tricks to evade his just deserts, we have this striking fact: He has already served his two-year jail sentence. Yet he is willing to take the chance of a new trial, as a result of which, unless the jury acquits him, he will not be sent again to jail but to the death chair, so that the sentence he has served was count for nothing.
Sometimes a statute inescapably commands judges to conform to a legal ritual indifferent to justice. Then, regret it as we may, we judges must administer "injustice according to law." But we should regard such instances as exceptional, deplorable, and should not, generalizing from them, conclude that doing justice is not our role, that the "administration of justice" is an empty phrase not to be taken literally. When, therefore, a Rule tells us in the plainest words to avoid manifest injustice, I believe we should eagerly embrace the opportunity, not extend earlier decisions to escape it.
Judicial sensibilities ought not to be markedly different from those of the layman. I think, if he understood this case, it would severly shock the sense of justice — or injustice
In fairness to counsel who advised defendant, I must add that, in criticizing his conduct severely, I am relying on what appears in the present record. Were the case remanded for further proceedings (as I think it should be) perhaps he could then satisfactorily explain his extraordinary conduct. But, in deciding this appeal, we must take the record as it now stands. That record, I think, shows that defendant has been most unfairly treated. It would be unfair to him if, in order to be fair to his counsel, we now conjectured that the latter had some good but undisclosed reason for the advice he gave.
I think, therefore, that we should reverse and remand for a hearing on evidence in open court as to any pertinent issue of fact.
On Petition for Rehearing
HINCKS, Circuit Judge.
The case of United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, which the appellant now cites, is not applicable to the situation here which rather falls within the holding of United States v. Panebianco, 2 Cir., 208 F.2d 238.
The petition is wholly denied.
FRANK, Circuit Judge (dissenting).
Defendant in his petition for rehearing cites United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, as showing the error of my colleagues' position that important "collateral consequences" do not suffice to establish "manifest injustice" on a motion for leave to withdraw a plea of guilty after sentence. I agree with the defendant as to the pertinence of the Morgan case. It did not involve Criminal Rule 32(d), but Morgan held that a sentence, based on a plea of guilty, imposed many years earlier in the federal district court, should be vacated because it had had the "collateral consequence" of adding to the length of Morgan's subsequent sentence, in another case, by a New York court. Indeed, Mr. Justice Minton gave as one ground of his dissent in the Morgan case, 346 U.S. at page 515, 74 S.Ct. at page 254, that "all federal consequences" of the federal sentence had ended.
My colleagues now cite United States v. Panebianco, 2 Cir., 208 F.2d 238, 239. There our opinion states: "The appellant pleaded guilty with full knowledge of the nature of the charge against him and on the advice of competent counsel." Here no one ventures to suggest that defendant received such advice.
On the latest previous appeal, we noted that "there is no evidence that" the defendant "could not understand English"; 203 F.2d at 285. This had a bearing on the fact that, immediately after defendant pleaded guilty, the prosecutor said in court in defendant's presence that a sentence of more than a year would result in defendant's deportation. Defendant, in his affidavit filed with the motion now before us, stated: "No mention was made of deportation by the prosecutor prior to the entry of my plea of guilty, nor at the time when that plea was entered. No mention whatever was made by him of a deportation proceeding until I actually appeared before the court, on December 13, 1951, for sentence. My understanding of English was poor, as the trial record will show. I heard only a part and understood less of what was said, after my plea of guilty was entered, by the prosecuting attorney in the conversation between him and the court and my attorney. Moreover, I had no chance to inquire further as to the matter of deportation because, immediately after sentence was imposed and without my having a further opportunity to speak to my attorney or my wife, I was taken from the courthouse to the Federal Detention Headquarters on West Street, New York, and transferred within twenty-four hours to prison here at Atlanta. I have ever since been and now am confined in the United States Penitentiary here." His then attorney says in his affidavit: "I was present in court, as the record will show, at the time when the defendant, Liberale Parrino, appeared before this court on December 13, 1951, and was sentenced to a further term of imprisonment for two years, which, as I am informed and believe, he is now serving. I did not confer, and as I recall, I had no opportunity to confer with the defendant subsequently to the imposition of that sentence. It is my recollection that immediately after he was sentenced, he was taken from the courtroom, in custody by the United States Marshal, or one of his deputies, and that he was promptly thereafter removed to the United States Detention Headquarters at West and 11th Streets, New York City. I am informed that he was almost immediately thereafter transferred from Detention Headquarters to the Federal Penitentiary at Atlanta, Georgia."
Cf. People v. Walker, 250 Ill. 427, 430, 95 N.E. 475; People v. Nitti, 312 Ill. 73, 143 N.E. 448.
See also, e. g., Lloyd v. State, 15 Okl.Cr. 130, 175 P. 374; People v. Gardiner, 303 Ill. 204, 207, 135 N.E. 422.