The opinion of the court was delivered by: INCH
This is a motion by defendant for an order in the nature of a writ of error coram nobis pursuant to Title 28 U.S. Code, Sec. 2255 to vacate and set aside the judgment of conviction entered herein on January 17, 1949 on defendant's plea of guilty and his confession in open court to the crime of treason. Defendant was sentenced to a term of imprisonment of twenty-five years and a fine of $ 10,000.
On October 14, 1948 defendant was indicted in this district for the crime of treason in an indictment which charged him with one offense of treason consisting of 21 alleged overt acts. On January 17, 1949 the defendant, represented by eminent counsel, appeared before me for trial and withdrew his plea of not guilty. Thereupon, the defendant was advised of his rights, was duly sworn, and in accordance with respect to the crime of treason, took the stand, and in response to questions propounded by the prosecuting attorney confessed in open court that he had voluntarily performed acts which constitute the crime of treason, including various of the overt acts alleged in the indictment. During the course of his testimony defendant stated that he had read the indictment, that he had discussed it with his attorney and that he understood it. After an eloquent plea for leniency by defendant's counsel, and prior to the imposition of sentence, the court asked the defendant: 'Now, Mr. Monti, do you want to say anything yourself?', and the defendant replied: 'No, sir.'
At the trial defendant's counsel made a motion in arrest of judgment upon the grounds (1) that Congress was without power to punish a United States citizen who committed treason while in enemy territory, (2) that this court lacked jurisdiction since the offense was committed abroad, and (3) that the trial violated the double jeopardy provisions of the Constitution, since the defendant had previously been convicted by a Military Court Martial of the offense of being absent without leave and for the misappropriation of government property. The motion was denied and an exception granted.
On January 26, 1949 an appeal was taken from the judgment of conviction, but the appeal was subsequently withdrawn by a stipulation filed herein on June 1, 1951.
Defendant's present motion under Title 28 U.S. Code, Sec. 2255 to set aside the judgment of conviction is based on a number of grounds which may be stated substantially as follows:
1. That his plea of guilty and confession in open court on January 17, 1949 was procured as the result of the coercion of defendant's former counsel, exerted both directly upon the defendant and indirectly through the medium of defendant's father and mother and his spiritual advisers.
2. That he entered his plea of guilty under a misapprehension as to what it was to embrace, believing that he was not pleading guilty to the crime of treason as charged in the indictment, but was merely pleading guilty to having made ten recordings for radio broadcast purposes without treasonable intent.
3. That the prosecution filed to disclose to the court certain allegedly exculpatory evidence which it allegedly was under a duty to disclose.
4. That defendant's plea of guilty and his testimony under oath at the trial on January 17, 1949 was insufficient, and did not constitute a 'Confession in open Court' as required by Article III, Section 3 of the Constitution.
5. That the trial resulted in defendant being subjected to double jeopardy in violation of his constitutional rights.
6. That the statute upon which the indictment was based had been repealed by the revision of Title 18 U.S. Code which became effective on September 1, 1948, and the indictment was therefore invalid and the judgment of conviction void.
As was pointed out to counsel for defendant many times during the course of these hearings, this is a motion made pursuant to Title 28 U.S. Code, Sec. 2255, and is a proceeding in the nature of the ancient writ of error coram nobis. It is not a new trial or a motion for a new trial or a motion in arrest of judgment or an appeal. Section 2255 provides that a prisoner in custody under sentence of a court established by Act of Congress may move the court which imposed sentence to vacate, set aside or correct the sentence upon the ground that
(1) 'the sentence was imposed in violation of the Constitution or laws of the United States, or'
(2) 'that the court was without jurisdiction to impose ...