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July 25, 1968

Ching S. LAU, Defendant

Cooper, District Judge.

The opinion of the court was delivered by: COOPER


COOPER, District Judge.

 The defendant seeks to be relieved of his plea of guilty entered of record on April 4, 1968 before this Court and an order that the sentence imposed on May 9, 1968 be vacated. It is his position that at the time of plea he was not aware that willfulness was an essential element of the offense involved; and that he was lulled into a sense of security by the assurances of his attorney, who then stood beside him, that a "deal" *fn1" had been made with the prosecution whereby defendant would receive a sentence of six months, the execution of which in all likelihood would be suspended. *fn2"

 We have before us a defendant about fifty years of age who has had the benefit of substantial education - B.S. in textile engineering (Lowell, Mass.), Master of Science in industrial engineering from Columbia University. *fn3" He helped organize, controlled and actively participated in the affairs of several corporations during the last twenty years. *fn4"

 We regard of particular significance on this application certain unequivocal responses by defendant to simple, direct questions put to him when we took his plea. Counts 5, 6, 7, 8 and 9 were read to him; each recites that defendant "wilfully and knowingly" failed to make individual and corporate income tax returns to the Director of Internal Revenue for the calendar years 1960, 1961 and 1962 (Title 26, Section 7203, U.S. Code); to each he pleaded guilty. On that occasion we inquired of defendant whether he clearly understood the nature of the proceedings then in progress, invited him to ask questions with respect thereto, and sought to learn whether he had made full disclosure to his attorney so as to be properly advised of his rights. *fn5" He reassured us on these matters of our concern and did likewise when we endeavored to learn whether anyone had "promised" him "anything" in return for his plea. *fn6" On sentence nothing was said in respect of any matter taken up when the plea was entered.

 Nowhere do we find defendant asserting that he did not hear and fully comprehend each step of the proceedings in open Court attendant upon the taking of his guilty plea, including the repeated references to "wilfull." What he now insists upon is that while his failure to make and file the tax returns was a fact of which he was well aware at the time they were due, in truth such failure was not intentional and at no time did he wish to convey anything to the contrary.

 On June 25, 1968 we granted his application for a hearing primarily to determine whether "he placed his plea of guilty on record without knowledge that 'willfulness' was an essential element of the offense involved." The hearing was held and completed on July 16th. The only witnesses called to the stand were defendant Lau and attorney Pack who represented him at the time of plea and sentence.

 As we understand it, our function is not to determine the probable guilt of the accused, including the element of willfulness, but whether, at the time of the entry of his plea, Lau had the requisite understanding of the charge against him and knew to what he was pleading guilty. Surely, in the light of the proceedings at plea, the burden of establishing the negative of this proposition rests with him and he must come forward with proof clear and convincing.

 Contrary to the advice of his attorney at the time, Lau voluntarily appeared before the Grand Jury. The indictment was filed on March 14, 1967. For considerable time prior thereto and up to approximately the date of pleading, Lau consulted with an attorney named Colbert about his affairs. Colbert was present at the arraignment at which time a copy of the criminal charge was handed him. *fn7" Apparently there were several adjournments before the day of pleading. In the early fall of 1967, an attorney named Felder was assigned by the Court to prepare for trial. He was of the opinion that the accounting features of the case required the services of an attorney more adept in that field. Whereupon, Pack, similarly assigned, came into the case about October, 1967. From then on and up to the time of pleading, he conferred with defendant once every several weeks; he discussed the matter of defense with Messrs. Colbert and Felder.

 Pack also discussed with them the advisability of the plea which eventuated; they shared his views and approved the proposed course. All this Pack conveyed to Lau when he conferred with him about it on March 28th and on or about April 1 or 2.

 While Pack's testimony is clear on the fact that Lau knew at the time the income tax returns were due that they had neither been prepared nor filed, his testimony as to what he and Lau discussed on the issue of willfulness is not at all well defined. He knew the difference between crimes malum in se and malum prohibitum;8 at no time did he state unequivocally either that the essential element of willfulness was denied by Lau or was not taken up in the course of his conferences with defendant.

 When we come to the defendant's position as to the sentence which might be meted out, we find a veritable potpourri of explanation in the affidavits and testimony which make up the total record. Clear it is that when the Government started to prepare this case for trial, Assistants United States Attorney conveyed to Pack the idea that a plea to counts 5, 6, 7, 8 and 9 (each a misdemeanor) would be acceptable to cover the entire indictment and that the first four counts (each a felony) would be dropped. The Government assures us that when inquiry was made of it by Pack as to possible sentence, absolutely nothing on that score was held out, and at no time for any purpose whatever was the possible disposition on sentence even referred to. Pack did not put this in dispute. *fn9" We accept the averment.

 Pack testified that he told Lau it was his "feeling" and that of Messrs. Colbert and Felder that the Court "will probably, in our opinion, impose a very light sentence or a suspended sentence;" that "the maximum is one year on each of the five counts plus a fine." *fn10" Pack denied Lau's statement by affidavit of June 5, 1968 that Pack told him "the Judge would probably impose a fine or a jail sentence which would be suspended * * * if everything goes wrong when we were before the Judge * * * the Judge might impose as much as a six month sentence, but I should not worry about anything going wrong because an agreement had been reached with the Government attorney. That agreement, Mr. Pack told me, that I would receive a fine or a suspended jail sentence * * * I questioned Mr. Pack about the possibility of the Government attorney not keeping his part of the bargain and Mr. Pack told me this could not happen." And at the hearing it was Lau's testimony that Pack assured him, "All 5 counts together, the maximum sentence may be six months but most likely the Judge won't give you such a penalty. If he give you six months it would be with suspended sentence." *fn11"

 Lau was positive that Pack definitely pointed out to him before his plea that willfulness was an essential element only in the felony counts (1, 2, 3 and 4) but not so in respect of the misdemeanor counts (5, 6, 7, 8 and 9); that he always "had all intention to file * * *" *fn12" It is highly significant that nowhere in his two affidavits does Lau even mention this distinction; the same is true of defendant's exhibit "A", a detailed outpouring of fifteen pages handwritten by him after sentence and while incarcerated, to ...

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