WEINFELD, District Judge.
The defendant, now serving a sentence of twenty-two and one-half years, moves pursuant to section 2255 of Title 28 United States Code, to vacate the judgment of conviction entered upon his plea of guilty on the ground that the plea was coerced. The motion was first heard in July, 1961 in the Criminal Motion Part before a Judge other than the Trial Judge who denied it without a hearing.
On March 30, 1956 Rocco Tateo, the petitioner, and two others, Arthur Paisner and Angelo John, were charged in a five-count indictment with violations of the Federal Bank Robbery Act and conspiracy so to do.
Prior to the trial, Paisner pleaded guilty to all counts except the kidnapping count. Tateo and the remaining codefendant, John, stood trial. On the fourth trial day, May 21, 1956, Tateo withdrew his plea of not guilty and pleaded guilty to all counts except the kidnapping count. On June 5, 1956, following receipt of a presentence report, the Trial Judge imposed a total sentence on Tateo of twenty-two years and six months.
The essence of the petitioner's present claim
The defendant, his former attorney and his sister testified at the hearing. On the fourth trial day before the taking of testimony was resumed, the Judge called a robing room conference at which were present Tateo's attorney, the attorneys representing the codefendant, Angelo John, and the two Assistant United States Attorneys who were prosecuting the case. The Court, according to the testimony of Tateo's attorney, stated to the defense attorneys:
The Trial Judge further stated, according to the attorney, that whatever might be thought by others about sentences in excess of life imprisonment, nonetheless that was what he was going to do, and told them to "think it over." This conference took place after substantial evidence during three days of testimony had been given against the defendant by the codefendant Paisner who, after pleading guilty, had testified as a Government witness, and by Tateo's paramour.
The trial was recessed. Tateo's counsel swore that at once he conveyed to his client exactly what the Judge had said. In response to the defendant's request for his opinion, his counsel expressed the view, on the basis of the testimony already received, that the Government's case was strong; that there was an excellent chance of conviction, and that he urged Tateo rather strongly to plead guilty. He further testified that he spent about half an hour discussing the situation with the defendant and that during this half hour the defendant mulled it over. Finally, the defendant said he wanted to get it off his chest and would go along with his lawyer's advice to plead guilty. Up to this time, the attorney testified, there had been no conversations between him and his client as to a change of plea, and that it was the Trial Judge's statement which directly led to the discussion about the withdrawal of the not guilty plea. On cross-examination by Government counsel, the attorney admitted he did not advise his client not to plead guilty because he had been threatened by the Court, although he regarded the Court's statement as unfair and pretty close to a threat.
The defendant testified that during a recess on the fourth day of trial his attorney said to him, "I can't let you continue with the trial," and then informed him of the Judge's statement substantially as testified to by his trial counsel; that his counsel also told him that under such a sentence he would never get out of prison, and urged him to plead guilty, saying, "I can't gamble with your life. We can't go on with the trial; I won't let you." He further testified that he understood a life sentence plus consecutive sentences to mean that he would never get out of jail and that he was not informed the Court was without power under the Federal Bank Robbery Act to impose consecutive sentences. His counsel likewise swore this matter was not discussed. Finally, the defendant swore that it was the Trial Judge's statement and the persuasion of his lawyer based thereon that caused him to withdraw his original plea of not guilty and to plead guilty.
The record indicates that the plea of guilty was entered shortly after the robing room conference.
The Government called no witness to challenge the attorney's testimony as to what the Trial Judge had told him or that, in turn, he had conveyed the message to the defendant. To be sure, there are some inconsistencies between the testimony of the lawyer and that of his former client. The lawyer denies he ever told the defendant, as the latter testified, to answer agreeably when questioned by the Court as to the voluntariness of the plea or the absence of duress, coercion, or any promises. The attorney also did not recall that he told the relator he would not allow him to gamble with his life, or that before the entry of the plea of guilty he had informed the defendant's relatives of the Court's statement; he believed that he had conveyed this information to them after the plea of guilty. However, these matters are not of material significance on the issue presented by petitioner's motion, since his fundamental claim that the Trial Judge made the statement attributed to him has been fully established and is not controverted. Indeed, the Government, for the purposes of this motion, assumes that the statement was made and transmitted to Tateo, but contends that notwithstanding, his plea of guilty was voluntary.
The issue presented falls within a narrow compass, to wit, whether the statement by the Trial Judge made and conveyed to the defendant before the completion of the Government's case, but after substantial evidence to support the indictment charges had been presented, that if the defendant proceeded with the trial and were found guilty, the Trial Judge would impose maximum and consecutive sentences upon the various counts of the indictment, which the defendant was advised by his lawyer and which he understood meant actual life imprisonment, resulted in a coerced plea either as a matter of law or upon the facts, or both.
To further confine the issue, some preliminary observations are in order. The defendant's guilt or innocence is not in issue on this motion. And neither the passage of time nor the absence of any showing that in the event of a new trial a different result is likely requires the denial of the defendant's motion.
The issue of whether the guilty plea was in fact voluntary or the product of mental coercion cannot be determined with mathematical precision. Of necessity we deal in probabilities in deciding whether the defendant, at the time he pled guilty, had that free will essential to a reasoned choice either to continue with the trial or to enter a plea of guilty.
A crucial question is what impact the Court's statement had upon the defendant; how he understood it and whether his understanding was reasonable under all the attendant circumstances.
The choice open to this defendant when apprised during the trial of the Court's statement was rather severely limited. If, as was his constitutional right, he continued with the trial and were found guilty, he faced, in the light of the Court's announced attitude, the imposition of a life sentence upon the kidnapping charge, plus additional time upon the other counts, a sentence which his lawyer informed him and which he believed, not without reason, meant life
It is not claimed—and it is immaterial —that the Trial Judge's statement was designed either to mislead the defendant or to induce his plea of guilty. The question is whether it did have that impact.
The statement by the Court itself had overbearing force. That it had a subtle but nonetheless powerful influence upon the defendant can hardly be questioned. But adding even greater weight to it was the fact, not challenged by the Government, that under the Federal Bank Robbery Act the Court lacked power to impose consecutive sentences to follow that imposed under the kidnapping count.
We are not here concerned with a situation much debated among the Courts of Appeals, in which some statement, activity, promise or threat of the prosecution has allegedly vitiated the voluntariness of a plea of guilty.
With the normal strain under which a defendant labors during a trial, greatly intensified by the cumulative impact of the testimony offered against petitioner by his codefendant, who had become a Government witness, the Court's advance announcement of the prospective sentence and, based thereon, the strong urging of his own counsel to plead guilty, it is difficult to believe that the defendant had that capacity for reasoned choice, that freedom of will which is essential to a voluntary plea of guilty.
No matter how heinous the offense charged, how overwhelming the proof of guilt may appear, or how hopeless the defense, a defendant's right to continue with his trial may not be violated. His constitutional right to require the Government to proceed to a conclusion of the trial and to establish guilt by independent evidence should not be exercised under the shadow of a penalty
The Government here professes to see some distinction upon the facts, such as the statement was made before and not during trial and before rather than while they were represented by counsel. The defendants did have counsel when the plea was entered. This Court sees no essential distinction; if anything, the factual situation in the instant case is even stronger in view of the substantial evidence already received against the defendant.
The Court is also persuaded that upon all the facts the defendant has carried his burden of proof. The realities of human nature and common experience compel the conclusion that the defendant was enveloped by a coercive force resulting from the knowledge conveyed to him of the Court's attitude as to sentence which, under all the circumstances, foreclosed a reasoned choice by him at the time he entered his plea of guilty. On the one hand, he was influenced by fear that if he adhered to his right to continue with the trial, if convicted, imprisonment for the rest of his life would follow; and on the other hand, by the hope that if he abandoned trial and pled guilty, he would receive a substantially lesser sentence, particularly in view of the implicit understanding between the Government and defense that the kidnapping charge, the only one under which a life sentence was permissible, would be dropped.
In sum, the Court concludes that as a matter of law and upon the facts here presented, the defendant's plea of guilty was not voluntary and free from coercion; accordingly, the motion to vacate and set aside the judgment of conviction entered thereon and for a new trial is granted.
"* * * [A]nd I want you to know that I was very serious and earnest when I said that if you had been convicted by the jury I intended to give you the absolute maximum sentence, a life sentence plus all of these years to follow the life sentence.
"If anybody wonders how one can serve a sentence after he has served a life sentence, it is very simple, because in a life sentence you are eligible for parole in 15 years; but with a sentence to follow a life sentence, you are not eligible for parole on the life sentence, and you have to stay in jail for the rest of your life." (S.M. 375) (June 5, 1956.)