FRIENDLY, Circuit Judge:
Rule 35 of the Federal Rules of Criminal Procedure empowers a district judge to reduce a sentence within, but only within, 120 days after sentence was imposed.
Appellee Lawrence D'Allesandro was one of six defendants charged in a multicount indictment filed on August 16, 1972, in the District Court for the Eastern District of New York. D'Allesandro was named in three counts charging distribution of heroin in violation of 21 U.S.C. § 841(a)(1), a count charging conspiracy to do so, 21 U.S.C. § 846, and another count charging perjury before a federal grand jury in violation of 18 U.S.C. § 1623. D'Allesandro's mother, Lucy D'Allesandro, was named in the conspiracy count and was the subject of two perjury counts. On October 30, 1972, the case against the D'Allesandros and James Torturo was called for trial before Judge Weinstein; the D'Allesandros were represented by James LaRossa, an experienced attorney. After some preliminary sparring, a recess was taken. At the conclusion of this Mr. LaRossa advised the court that Lawrence desired to withdraw his plea of not guilty and to plead guilty to one of the heroin distribution counts and that he had made this decision as a result of certain promises which counsel desired to "spread out on the record". These were:
Assistant United States Attorney Behar indicated the Government's assent.
Judge Weinstein then addressed D'Allesandro personally, as required by F.R. Crim.P. 11. The interrogation of both D'Allesandro and his attorney was especially thorough, due no doubt to the
He then asked Mrs. D'Allesandro "may I see you up here?" The two lawyers made known that, apart from the plea bargain, the Government had planned to ask dismissal of the conspiracy count as against her. She said she did not understand why her son was pleading guilty. When the judge asked whether she had herself participated in or knew anything about the heroin sale to which Lawrence was pleading guilty, he received a negative response. The transcript continues:
Note will be taken of the surprising reference to Mrs. D'Allesandro rather than the defendant.
There ensued a discussion of the time necessary for working up a probation report and a tentative sentencing date was set. After the court took a bargained guilty plea from the remaining defendant, Torturo, there was an argument of a motion by the Government to remand Lawrence and Torturo pending sentencing. In the course of this Judge Weinstein noted
The judge denied the motion but addressed the two defendants as stated in the margin.
On July 3, 1974, some 19 months after the imposition of sentence, D'Allesandro, from the federal prison at Danbury, Connecticut, wrote a letter to the judge, "with the hope and expectation that you treat it as a formal Motion 2255, to vacate my sentence, or offer me whatever relief the Court may deem necessary." He enclosed nine pages of the transcript of the proceedings on October 30, 1972, on which certain passages had been marked. He wished to bring to the judge's attention two points both based on the stenographer's insertion of "Mrs." in front of "D'Allesandro" in the above-quoted reply immediately after the court's reading of the count. His first point was "that I never plead guilty to the crime which I'm now incarcerated for." The second was that, despite the Government's promises for dismissal, "my Mother was made to plead guilty to the indictment as it applied to her"; since the Government "failed to uphold the promise that was made to me . ., I now wish to withdraw my plea. . ." The letter went on to complain that, despite a recommendation in favor of parole from the judge, a perfect institutional record, no past history of criminal behavior (a questionable assertion in view of what we can glean about the contents of the probation report from the transcript of the sentencing hearing), and a numerical score on the "offender characteristic (salient factor) guideline" (part of a program recently established in the Northeast Region of the United States Board of Parole to promote a more consistent and equitable exercise of parole boards' discretion, see 28 C.F.R., Ch. 1, Pt. 2, § 2.20 (1974)) suggesting a customary range of confinement of 16 to 20 months, he had been denied parole and had been "given a C.T.E. (continue to expiration)" of his term of imprisonment.
Promptly upon receiving D'Allesandro's letter and the accompanying papers, the judge entered an order instructing the clerk to treat them as a civil action to set aside the conviction and to serve a copy of the papers and the order upon the United States Attorney and Mr. LaRossa, and directing the United States Attorney to make an appropriate investigation and to report to the court in writing. This report, by the Assistant United States Attorney who had attended the taking of the plea on October 30, 1972, informed the court, among other things, that the statement "guilty" made at the taking of the plea was D'Allesandro's, not his mother's; that the records of the clerk so indicated; that the court reporter had informed the Assistant that his original stenographic notes did not include the reference to "Mrs." at that point; and that the Government had honored its promise in dismissing all charges against Lucy D'Allesandro. The court thereupon directed a hearing.
At the hearing on November 12, 1974, at which D'Allesandro was again represented by Mr. LaRossa, D'Allesandro called the court's attention to the same passage in the minutes to which he had referred in his letter. The transcript then proceeds as follows:
Mrs. D'Allesandro was also unable to remember anything. D'Allesandro waived his right to have the reporter testify.
When the judge returned, there was further discussion, both about whether the judge could have pronounced a sentence that would have worked out more favorably for D'Allesandro with the Board of Parole (under 18 U.S.C. § 4208(a)), about events at the sentencing hearing, and about the taking of the plea. The Assistant United States Attorney stated that the court clerk had recorded that D'Allesandro had pleaded guilty, which the clerk confirmed, and that he (the Assistant) had made a similar record. There was more discussion of the sentence, the judge's lack of authority to modify it, the Parole Board's alleged intransigence, the needs of D'Allesandro's family, and the merits of his application for parole. At this point the judge stated that
Quickly responding to the suggestion, Mr. LaRossa moved to "withdraw the plea of not guilty," which had not even been entered, "and enter a plea of guilty to Count Two of the indictment". The judge went through a few questions under F.R.Crim.P. 11, incorporating by reference under stipulation by the defendant and his counsel the inquiries and answers of the prior Rule 11 examination, and ascertained that D'Allesandro was ready to be sentenced. He then said:
When the obviously non-plused Assistant United States Attorney observed that he had made no such motion, defense counsel moved "to dismiss those open counts" and the court granted the motion, although in fact the counts had been dismissed on December 1, 1972. The court also declined the Assistant's request for a written opinion, instead making only an oral statement in which he said
The Government has appealed.
The court's statement that there was "a serious question" about what happened on the taking of the guilty plea was wholly contrary to the fact. The proceedings had been exemplary. Actually it is immaterial whether or not D'Allesandro himself pleaded guilty. The plea may be entered by counsel. United States v. Liss, 105 F.2d 144, 145 (2 Cir. 1939); Merritt v. Hunter, 170 F.2d 739, 741 (10 Cir. 1948); Mayes v. United States, 177 F.2d 505, 507 (8 Cir. 1949); Brown v. United States, 182 F.2d 933, 934 (8 Cir. 1950); Cruzado v. People of Puerto Rico, 210 F.2d 789, 792 (1 Cir. 1954) (dictum); United States v. Cariola, 323 F.2d 180, 187 (3 Cir. 1963) (dictum); United States v. Myers, 237 F.Supp. 472, 475-76 (E.D.Pa.1965); 8 Moore, Federal Practice ¶ 11.03, at 11-52 (1975). What Rule 11 says is that the court shall not accept a guilty plea, whether entered by counsel or by the defendant, "without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea." The 1966 amendment to Rule 11 had as one of its purposes clearing up confusion in the reported cases with respect to whether the court should "address the defendant personally in the course of determining that the plea is made voluntarily" and knowledgeably, 18 U.S.C.A. F.R.Crim.P. 11, Notes of the Advisory Committee on Criminal Rules, 1966 Amendment, thereby serving to assist the district court in its determination of voluntariness and helping to produce a complete record at the time of the taking of the plea of the factors relevant with respect to this voluntariness determination, McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), but was not intended to resuscitate what, in United States v. Denniston, 89 F.2d 696, 698 (2 Cir. 1937), cert. denied, 301 U.S. 709, 57 S.Ct. 943, 81 L.Ed. 1362 (1937), we called the "technical objection" that a plea that "was entered by the attorney and not by the appellant personally . . . is of no effect."
Appellee argues, in effect, that the judge's finding of "confusion which may have been engendered in the mind of the defendant" and his "finding of fact" that the sentence was invalid because the plea was not properly taken are beyond challenge. We reject the argument. Society also has important interests in a conviction duly obtained, as D'Allesandro's was. Confusion in the taking of a plea does not exist simply because the presiding judge later decides that, for reasons which his invitation of a new guilty plea made obvious, he would like to have it so. As Mr. Justice Field observed nearly a century ago
Ho Ah Kow v. Nunan, 12 Fed.Cas. 252, 255 (No. 6,546) (C.C.D.Calif.1879); see also Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949) (Mr. Justice Frankfurter); United States v. Rumely, 345 U.S. 41, 44, 73 S.Ct. 543, 97 L.Ed. 770 (1953) (id.).
It is of no moment that the judge's motives were of the highest. We do not stop to inquire whether his apparent resentment over the action of the Parole Board was justified or not. It does not matter. In his famous lectures Cardozo told of "le phénomène Magnaud", an episode in which the tribunal of the first instance of Château-Thierry, whose members became known as "les bons juges", initiated a revolt against the existing order in jurisprudence and "asked themselves in every instance what in the circumstances before them a good man would wish to do, and . . . rendered judgment accordingly." The Nature of the Judicial Process 138-39 (1921). He concluded that
Id. at 135 (footnote omitted).
D'Allesandro's counsel seeks to block review on two bases. The first is a claim that, although the judge had directed that D'Allesandro's letter and accompanying papers be treated as initiating a civil proceeding under 28 U.S.C. § 2255, in fact the application could as easily have been treated as one for withdrawal of a plea of guilty "to correct manifest injustice" under F.R.Crim.P. 32(d), and applications that are "arbitrarily labeled" without the benefit of counsel and on the advice of fellow inmates should not be interpreted to the detriment of the petitioner in an area of the law where such "procedural" matters are complex. The advantage to D'Allesandro in relabeling the proceeding would lie not in the fact that "[t]he concept of `manifest injustice' gives the court somewhat more latitude to permit
D'Allesandro's other contention is that, since he has been convicted on his second plea of guilty, the double jeopardy clause of the Fifth Amendment protects him from restoration of the conviction under his first plea. He argues that the Government, in order to preserve a right of appeal, was obliged to attempt, in some way not apparent to us, "to prevent the Appellee from repleading." Apart from the fact that whatever happened here was at D'Allesandro's instance, the argument fails under the recent exposition of the double jeopardy clause in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), and United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). Wilson held that reversal by an appellate court at the request of the Government would not expose a defendant to double jeopardy when, after a jury's guilty verdict, the indictment had been dismissed by the judge and correction of his alleged legal error could be achieved simply by directing the judge to enter judgment on the verdict. The same reasoning is applicable to a case where, in a § 2255 proceeding brought by the defendant, a judge erroneously sets aside a conviction on a plea of guilty,
The judgment is reversed with instructions to vacate all action taken at the hearing on November 12, 1974,