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United States v. Wight.

decided.: July 26, 1949.

UNITED STATES
v.
WIGHT.



Author: Smith

Before SWAN and CHASE, Circuit Judges, and SMITH, District Judge.

SMITH, District Judge.

This is an appeal from an order entered February 28, 1949 in the District Court for the Southern District of New York, denying, without an opinion, a petition pursuant to 28 U.S.C.A. § 2255 to set aside a judgment of conviction and sentence imposed under indictment C 128-345. Affirmed.

Petitioner was sentenced November 22, 1948 in the District Court for the Southern District of New York on pleas of guilty to a criminal information and two indictments.

In case C 128-264, on a plea of guilty to an information charging illegal wearing of an Army uniform, 18 U.S.C.A. § 702, he was sentenced to six months' imprisonment.

In case C 128-344, on a plea of guilty to an indictment in one count charging false registration under the Selective Service Act, 50 U.S.C.A.Appendix, § 462, imposition of sentence was suspended and he was placed on probation for three years to commence on termination of sentence on count one of C 128-345.

In case C 128-345, on a plea of guilty to an indictment in five counts charging the obtaining of things of value in the pretended character of an officer or employee of the United States, 18 U.S.C.A. § 76 (1946), 18 U.S.C.A. § 912 (1948), he was sentenced to imprisonment for three years on the first count, to follow the six months' sentence on the information, and on the other four counts was placed on probation for three years thereafter, concurrently with the probationary period on the Selective Service indictment, C 128-344.

At the first call of the calendar on November 22, 1948, counsel for the defendant was assigned by the Court. The defendant alleges by his petition that he conferred with his counsel for about fifteen minutes during the period from counsel's assignment at the first call of the calendar to the time when the defendant's case was reached on the second call of the calendar.

Counsel was advised that the defendant admitted obtaining articles of value by masquerading as an enlisted man of the Air Force. Counsel was of the opinion that an enlisted man of the Air Force fell within the definition of an officer or employee of the United States in the prohibition of the statute. The defendant at first disagreed and was unwilling to plead guilty to that charge. The defendant changed his mind upon the reading of the charge in open court, however, and pleaded guilty to each of the five counts of that indictment (C 128-345). Counsel, surprised by defendant's plea of guilty to the first count, called the attention of defendant and Court to the earlier unwillingness to plead guilty and explained the reason for defendant's earlier hesitancy and counsel's advice upon the law.*fn1

The Court agreed with counsel's interpretation of the statute and accepted the guilty plea.

Motion to vacate and correct sentence under indictment C 128-345, pursuant to 28 U.S.C.A. § 2255, on the grounds that he had not pleaded guilty, that his plea was obtained by fraud, and that he did not have effective representation by counsel, was denied. From that denial this appeal is taken.

Counsel assigned for the appeal no longer denies that a plea of guilty was entered nor contends that it was obtained by fraud. He strenuously contends, however, that petitioner did not receive the effective services of counsel contemplated by the constitutional guarantees. Constitution of the United States, Amendments V, VI.*fn2 He argues that the short time available for conference, fifteen minutes, and advice by counsel without taking the trouble to study the section of the statute under which defendant was charged or interpretations of it in the courts, demonstrate a mere perfunctory and formal representation, in violation of the constitutional guarantees of assistance of counsel and assurance of due process. There can be no quarrel with the proposition that the right to counsel means the right to the conscientious services of competent counsel. Von Moltke v. Gillies, 332 U.S. 708, 722-723, 68 S. Ct. 316, 92 L. Ed. 309; Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527; Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S. Ct. 1019, 82 L. Ed. 1416, 146 A.L.R. 357; Willis v. Hunter, 10 Cir., 166 F.2d 721, cert. den. 334 U.S. 848, 68 S. Ct. 1499, 92 L. Ed. 1772. Mere perfunctory appearance for a defendant is not enough. Powell v. Alabama, supra, 287 U.S. at pp. 58, 71, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527; Glasser v. U.S., 315 U.S. 60, 76, 62 S. Ct. 457, 86 L. Ed. 680; Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321, 84 L. Ed. 377; Johnson v. U.S., 71 App.D.C. 400, 110 F.2d 562. U.S. ex rel. Foley v. Ragen, D.C., 52 F.Supp. 265, 270.

Here, however, in spite of the shortness of the time, the appearance was not perfunctory. There is shown no lack of knowledge by counsel of either the facts or the law upon which counsel advised his client.

Counsel's view of the law was a correct one. The language of the statute*fn3 has been construed broadly in harmony with its aim, which is "not merely to protect innocent persons from actual loss through reliance upon false assumptions of federal authority, but to maintain the general good repute and dignity of the service itself." U.S. v. Barnow, 239 U.S. 74, 80, 36 S. Ct. 19, 22, 60 L. Ed. 155; Lamar v. U.S., 241 U.S. 103, 36 S. Ct. 535, 60 L. Ed. 912; ...


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