LANE v. UNITED STATES

TUTTLE, Chief Judge:

Appellant filed a motion in the district court under 28 U.S.C. § 2255, to vacate the judgments and sentences entered upon his pleas of guilty to two indictments charging him with violations of the federal whiskey tax laws. In that motion, he alleged that the district judge failed to determine whether his guilty pleas were made voluntarily with understanding of the nature of the charges, as required by Rule 11 of the Federal Rules of Criminal Procedure; that in fact he agreed to plead guilty only because the Assistant United States Attorney and the district judge promised him in return that all charges against his father would be dropped and that a total sentence of no more than four years would be imposed, and made to run concurrent with a prior sentence in the event his parole on that prior sentence was revoked.1

The district court held a full evidentiary hearing on the motion, at which appellant was represented by counsel retained in his behalf. After consideration of the evidence adduced and the arguments presented at the hearing, the court entered a memorandum of its findings and conclusions denying relief. This appeal followed.

We consider first the claim that the record of the proceeding in which appellant's pleas of guilty were accepted did not adequately demonstrate a satisfaction of the requirement of Rule 11 that "the court * * * shall not accept * * * [such a] plea without first determining that the plea is made voluntarily with understanding of the nature of the charge." The relevant portions of the transcript of proceedings at which appellant's pleas were accepted are set out in the margin.2 We are unable to agree with the district court's conclusion that Rule 11 was satisfied thereby. What we recently said in Rimanich v. United States, 357 F.2d 537 (5th Cir. 1966), bears repeating here:

Our finding that Rule 11 was not complied with is not dispositive of the ultimate issue — which is, of course, whether the pleas were in fact voluntarily and understandingly made. If they were, then appellant was in no way prejudiced by the non-compliance. Domenica v. United States, 292 F.2d 483 (5th Cir. 1961). It does not follow, however, that this finding of non-compliance is without significance. The established import of such a finding is that it shifts to the Government the burden of proof on the question whether the plea of guilty was entered voluntarily and understandingly. Rimanich v. United States, supra.

It appears from the record that counsel experienced considerable difficulty in obtaining an accurate transcript of the proceedings in which appellant's pleas were accepted, and were unable to submit the transcript to the district court until approximately thirty days after the hearing on appellant's motion was conducted. This may account for the fact that the question of who bore the burden of proof on which issues was never raised in that proceeding. However, the issue of compliance with Rule 11 was squarely presented,3 and the district court could have, and should have, resolved that issue and determined the incidence of the burden before proceeding to a decision of the case. A reading of the critical findings of fact and conclusions of law entered by the trial judge makes it apparent that if that issue was considered at all, it was not correctly decided:

The state of the record is not such as would permit us to say that the trial judge would have been clearly erroneous had he found, after proper consideration of the evidence, that the Government failed to carry the burden of proving the ultimate fact that appellant's pleas were voluntarily and knowingly entered. Certainly, the evidence is clear beyond dispute that some negotiating was indulged in with respect to appellant's pleas. The Assistant United States Attorney freely admitted that he called his superiors in Washington and obtained authority to dismiss the charges against appellant's father if appellant pleaded guilty, and the charges were in fact dismissed.

The testimony elicited on the question whether the charges against appellant had been adequately explained to him is not conclusive. On direct examination, his former attorney, Mr. Mitchell, testified as follows:

On cross examination directed to this point, counsel for the Government provoked this response:

Likewise, the evidence is in sharp conflict on the question whether there was an agreement between appellant or his attorney and the trial judge as to the sentence to be imposed if appellant pleaded guilty. Mr. Mitchell testified definitely that such an understanding was reached:

On the other hand, the testimony of deputy clerk Gilbert was that Judge DeVane refused to make such a promise:

By the foregoing discussion, we mean only to demonstrate that correct imposition of the burden of proof could conceivably have a bearing on the outcome of this case. We intend no implication that we consider the ultimate decision reached wrong. Our sole concern here is that it appears to have been wrongly reached.

We have determined that there was a failure to comply with the requirements of Rule 11 at the time appellant's pleas of guilty were accepted. The burden of proof, then, clearly belonged to the Government. Since it is apparent that the district court did not correctly impose that burden, we remand the case to that court so that it may review its findings and conclusions accordingly, and in the light of our decision in Cooper v. Holman, 356 F.2d 82 (5th Cir. 1966.)

The judgment is reversed.