Before CLARK, FRANK and HINCKS, Circuit Judges.
This case has previously been twice before this court. The first appeal was from a conviction under 18 U.S.C.A. § 1202 which we ordered reversed in United States v. Parrino, 2 Cir., 180 F.2d 613. Thereafter, some eighteen months after the reversal, the defendant (as we shall hereafter designate the appellant) was again presented to the court below and pleaded guilty to the second count of the indictment which charged a conspiracy to kidnap - an offense denounced by Section 1201(c) of the Code - whereupon the first count, charging commission of the substantive offense denounced by Section 1201(a), was dismissed with the consent of the United States Attorney. A sentence of imprisonment for two years was then imposed and the defendant forthwith entered on service of this sentence. Some seven months later, while the defendant was still in confinement, finement, in his behalf a motion was made by his attorney "to vacate or correct the sentence." This motion was denied by the trial court by an order which, on appeal, this court affirmed, United States v. Parrino, 2 Cir., 203 F.2d 284, 287. The opinion of affirmance, however, at its conclusion stressed the view that "nothing we say is to be taken as bearing on the question whether Parrino may not upon another record move to withdraw his plea under Rule 32(d)." Agreeable to this suggestion defendant filed the motion which after denial by the trial judge is now before us on appeal.
This motion, invoking Rule 32(d) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., seeks to vacate the judgment of conviction and to permit the defendant to withdraw his prior plea of guilty (on the strength of which a sentence of two years was imposed which now has been fully served) on the ground that he pleaded guilty in reliance on the assurance of his counsel at the time that the plea would not have effect of subjecting him to deportation, and that now, notwithstanding that assurance, a deportation proceeding has been instituted against him, the validity of which depends upon the conviction which in turn depended solely upon his plea of guilty. Thus is presented the question whether on the underlying record it would constitute "manifest injustice" within the purview of Rule 32(d) to hold him to his plea and leave the judgment of conviction undisturbed.
Before proceeding to discuss this question we should state that the record on this appeal amply supports the finding below that in fact*fn1 before changing his plea the defendant was indeed informed by the lawyer then representing him that a plea of guilty would not subject him to deportation. The pending motion is supported in that respect not only by affidavits of the defendant and his wife but also by the lawyer himself. And there is no dispute that this information, doubtless innocently made, was erroneous. Although there was no express finding by the court below that the defendant acted in reasonable reliance on this erroneous information, for purposes of this opinion we assume that that was so.
But even so, we think the order should be affirmed. Generally in criminal cases, the defendant's surprise as to the severity of sentence imposed after a plea of guilty, standing alone, is not such manifest injustice as to require vacation of the judgment and permission to withdraw a plea of guilty.*fn2 True, when surprise stems from a misunderstanding, reasonably entertained, of remarks by the Judge himself, as in United States v. Lias, 4 Cir., 173 F.2d 685, or from assurances by the United States Attorney, it may be ground for post-conviction relief.*fn3 But surprise, as in the instant case, which results from erroneous information received from the defendant's own attorney, at least without a clear showing of unprofessional conduct, is not enough.*fn4
Moreover, here the subject-matter of the claimed surprise was not the severity of the sentence directly flowing from the judgment but a collateral consequence thereof, namely, deportability.This is a liability which may, and in this case does, depend on a conviction of crime. But it is nonetheless a collateral consequence of conviction. It is true that many statements in judicial opinions and by text-writers may be found - and the appellant here cites several such - to the general effect that a defendant should not be holden to a plea of guilty made without an understanding of the consequences. But neither the generalities found in the texts nor the facts underlying such judicial opinions suggest that the authors of such statements meant to imply that the finality of a conviction on a plea of guilty depended upon a contemporaneous realization by the defendant of the collateral consequences thereof. Certainly, the appellant fails to cite a single case so holding.*fn5 And research of our own fails to disclose a case even intimating a rule of such breadth.
Doubtless there may frequently arise tax evasion cases in which after conviction on a plea of guilty the defendant is unpleasantly surprised when, confronted with a civil action for the recovery of the evaded taxes, he finds a defense foreclosed by his plea in the criminal cases. And after pleading guilty to an offense which, though of small dimensions, is classified as a felony, a defendant may be shocked to find that he has lost his civil rights, - or that, after his conviction has faded into the past, he is faced with loss of his employment because he can only answer in the affirmative some questionnaire demanding to know if he has ever been convicted of a felony. The writer of this opinion, during his tenure on the trial bench, was more than once consulted by young men, duly convicted on a plea of guilty to a comparatively small offense, who were distressed to find that a later consequence of their plea was ineligibility for enlistment in the armed services. We think it plainly unsound to hold, as now in principle we are urged to hold, that such defendants are subjected to manifest injustice, if held to their plea, merely because they did not understand or foresee such collateral consequences. We find no case which even looks in that direction,*fn6 and the absence of cases expressly rejecting such doctrine we attribute to the absence of a rule so palpably unsound.
With the defendant's principal contention thus disposed of, we find little merit left in the appeal. We do not overlook the companion contention that the defendant, if he had elected to stand trial, might have escaped conviction because of the Statute of Limitations. That defense addressed to the merits, was waived by his plea of guilty. And utterly no grounds appear in the record to support a contention that the waiver here was other than deliberate and intentional. As to this there is not even assertion of erroneous advice received by the defendant from his lawyer. Likewise, as to the defendant's assertion that notwithstanding his plea of guilty he was not in fact guilty.
We do not fail to recognize the terrific impact on the defendant's life and family of the collateral consequence of deportation. But deportability is determined by the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1102 et seq. And even if we felt that the inflexibility*fn7 of that Act was unduly harsh in its application to this particular defendant or to others, we may not properly let sympathy, thus engendered, by intrusion into the field of criminal administration disturb the finality of criminal process and thus undermine effective law enforcement.
On Petition for Rehearing
The case of United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, which the appellant now cites, is not applicable to the situation here which rather falls within the holding of ...