The opinion of the court was delivered by: WYATT
This is a motion in the nature of a writ of error coram nobis (28 U.S.C. § 1651(a)) for an order setting aside a judgment of this Court of conviction of Leo Carlino ("movant") and Miss Smart Frocks, Inc. (the "corporation"), a New York corporation of which movant was an officer, director and stockholder. The judgment was entered on December 9, 1963 after pleas of guilty by movant and by the corporation.
An indictment (62 Cr. 349) was returned on April 11, 1962 charging the corporation, the movant and Herbert Klein with conspiracy and with the substantive offenses of attempted income tax evasion or filing false income tax returns or both. Some of the twenty counts charged movant alone, some Klein alone, and some charged all three defendants jointly.
On the same day -- April 11, 1962 -- an indictment (62 Cr. 348) was returned naming as defendants Frank Carlino (son of movant), Malcolm B. Klein (son of Herman Klein), and Lady Smart, Inc., a corporation. There were nineteen counts charging the defendants with conspiracy and with substantive offenses of attempted income tax evasion.
On May 7, 1962, all defendants in both indictments pleaded not guilty.
Evidently counsel for movant had been discussing a plea of guilty in 62 Cr. 349 with the Assistant United States Attorney in charge (the "Assistant"). As to 62 Cr. 348, proposed affidavits had been submitted to the Assistant which would show, as set out in a letter of September 3, 1963 from counsel for movant to the Assistant, "that these individuals (Frank Carlino and Malcolm B. Klein) . . . are not guilty of the violations of the income tax statute charged in 62 Cr. 348." The cited letter stated that an "agreement" had been reached, the first part of which was said to be that the government would dismiss 62 Cr. 348 "upon presentation of affidavits in the form previously submitted duly executed by Frank Carlino and Malcolm B. Klein establishing that Lady Smart, Inc. and they are innocent of the charges brought against them in that indictment." The last part of the "agreement" was said to be that movant and the corporation would plead guilty to count 16 of the indictment (62 Cr. 349), that all other counts would be dismissed, that counsel for movant would be free to urge maximum leniency, and that the United States Attorney would make no recommendation. In reply, under date of September 16, 1963, the Assistant flatly denied any "agreement". Specifically as to 62 Cr. 348, the Assistant wrote that "competent and convincing evidence with respect to any defendant's innocence will be carefully considered by the Government before proceeding to trial".
On November 7, 1963, movant, before Judge Cannella with counsel, withdrew his plea of not guilty to count 2 of 62 Cr. 349 and pleaded guilty to that count. Count 2 charged that movant attempted to evade income tax due for the calendar year 1955 by filing a false income tax return for that year in violation of Int. Rev. Code of 1954, § 7201. At the same time, the corporation through its counsel (authorized thereto by the directors) pleaded guilty to count 16 of 62 Cr. 349. Count 16 charged that the corporation, the movant and Herman Klein attempted to evade income tax due from the corporation for the fiscal year ending January 27, 1956 by filing a false income tax return for the corporation for that year, in violation of Int. Rev. Code of 1954, § 7201.
Before accepting movant's guilty plea, Judge Cannella questioned him; at first, the Judge was not certain as to the answers of movant and adjourned the plea for a period of time, declaring that he would not accept the plea from movant "unless he tells me he is really guilty of the crime". Later on the same day, Judge Cannella questioned the movant again. The transcript shows the following questions and answers, among others:
Q. All right, let's start all over again, Mr. Carlino; you want to plead guilty and you have entered such a plea, which I am not too sure I am going to take yet, but I want to find out what you know about it. You are pleading guilty to a charge which says that you violated the Internal Revenue Laws. It says here that on April 14 you filed a return which in effect was a false return for the calendar year of 1955, and you filed a joint return at that time on behalf of yourself and your wife, and at that time you said that the taxable income for that year was $54,000 in round figures, and the tax due on that was $22,000, whereas the fact of the matter was that the income was about $70,000 and the tax was about $32,000.
Did you file such a return?
Q. And you knew at the time that you were in effect understating your ...