UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: October 14, 1970.
ROBERT BYE, PETITIONER-APPELLANT,
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE
Smith and Hays, Circuit Judges, and Tenney,*fn* District Judge.
J. JOSEPH SMITH, Circuit Judge:
This appeal raises the question whether a person accused of a narcotics offense who pleads guilty to that offense, without knowledge that he will be ineligible for parole from the sentence he receives, enters his guilty plea voluntarily with an understanding of the consequences of the plea. We conclude that he does not.
Appellant Bye, along with a co-defendant, was indicted in 1966 on two counts under the narcotics laws, 21 U.S.C. §§ 173, 174. Desiring to change his plea to guilty, he was brought before Judge Tyler of the District Court for the Southern District of New York on November 29, 1966. Judge Tyler asked Bye a series of questions to insure that he knew the effects of his plea,*fn1 and that he entered the plea freely and willingly without any promises or threats. Although Judge Tyler informed Bye that he could receive from five to twenty years imprisonment on each count, he did not tell Bye that he would not be eligible for parole from his sentence due to section 7237(d) of the Internal Revenue Code, 26 U.S.C. § 7237(d), which makes narcotics offenders ineligible. Parole is generally available to a prisoner after serving one third of his sentence. 18 U.S.C. § 4202.
Judge Tyler accepted Bye's plea of guilty. On January 3, 1967, Bye was sentenced by Judge Cooper to seven and one-half years on each count, to run consecutively, a total of fifteen years.*fn2 Bye's direct appeal from his sentence was dismissed by this court as untimely.
Thereafter in May, 1968 Bye brought his first motion under 28 U.S.C. § 2255 alleging that his plea had been induced by improper representations that the sentences would be concurrent. Judge Cooper denied this motion without a hearing and this court affirmed and certiorari was denied. 395 U.S. 949, 89 S. Ct. 2031, 23 L. Ed. 2d 469 (1969).
Then on August 5, 1969, Bye brought the present motion in the District Court for the Southern District of New York under 28 U.S.C. § 2255 to vacate the judgment of conviction and sentence entered thereon. He alleged that he was unaware of his ineligibility for parole at the time of his plea, and that if he had known, he would not have pleaded guilty. In a supporting affidavit he claimed that his attorney advised him that he could be paroled in a couple of years and that he based his decision to plead guilty on this advice. Moreover he claimed he felt at the time he pleaded that he had a valid defense of entrapment if he were to go to trial.
Judge Cooper on October 10, 1969, denied the motion without a hearing*fn3 relying on United States v. Caruso, 280 F. Supp. 371 (S.D.N.Y.1967), aff'd sub nom. United States v. Mauro, 399 F.2d 158 (2d Cir. 1968), cert. denied, 394 U.S. 904, 89 S. Ct. 1010, 22 L. Ed. 2d 215 (1969). We reverse and remand to the district court for a hearing to determine whether Bye entered his plea voluntarily with an understanding that he would be ineligible for parole.
Rule 11 of the Federal Rules of Criminal Procedure, as amended effective July 1, 1966, provides that the court shall not accept a guilty plea "without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea." Since Bye's guilty plea was accepted on November 29, 1966, we must first decide whether ineligibility for parole is a consequence of the plea about which the district court must address the defendant before accepting his plea.
We agree with the position of five other circuits which have held that ineligibility for parole is indeed a consequence of the plea about which a defendant in narcotics cases must be informed under Rule 11. Harris v. United States, 426 F.2d 99 (6 Cir. 1970); Jenkins v. United States, 420 F.2d 433 (10 Cir. 1970); Durant v. United States, 410 F.2d 689 (1 Cir. 1969); Berry v. United States, 412 F.2d 189 (3 Cir. 1969); Munich v. United States, 337 F.2d 356 (9 Cir. 1964). Cf. United States ex rel. Brooks v. McMann, 408 F.2d 823, 825 n. 1, (2 Cir. 1969) (question open in this circuit). We do not follow the contrary view of two circuits. Trujillo v. United States, 377 F.2d 266 (5 Cir.), cert. denied, 389 U.S. 899, 88 S. Ct. 224, 19 L. Ed. 2d 221 (1967);*fn4 Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436 (1963), cert. denied, 376 U.S. 957, 84 S. Ct. 978, 11 L. Ed. 2d 975 (1964).*fn5
It is true that an accused need not be informed prior to the acceptance of his guilty plea about every conceivable collateral effect the conviction entered on the plea might have. See, e.g., Meaton v. United States, 328 F.2d 379 (5 Cir. 1964), cert. denied, 380 U.S. 916, 85 S. Ct. 902, 13 L. Ed. 2d 801 (1965) (conviction might result in loss of passport and right to travel abroad); Redwine v. Zuckert, 115 U.S.App.D.C. 130, 317 F.2d 336, 338 (1963) (civilian conviction might result in an undesirable discharge from the Air Force); United States v. Cariola, 323 F.2d 180 (3 Cir. 1963) (conviction might deprive accused of the right to vote in some states); United States v. Parrino, 212 F.2d 919 (2 Cir.), cert. denied, 348 U.S. 840, 75 S. Ct. 46, 99 L. Ed. 663 (1954) (conviction might subject an alien to deportation).
But the unavailability of parole directly affects the length of time an accused will have to serve in prison. If parole is unavailable, the mandatory period of incarceration under a given sentence is three times as long (not taking into account allowances for good time). It would seem that such a major effect on the length of possible incarceration would have great importance to an accused in considering whether to plead guilty. Recent Decision, 41 Temple L.Q. 491, 495 (1968). The purpose of Rule 11 was to insure that an accused is apprised of the significant effects of his plea so that his decision to plead guilty and waive his right to a trial is an informed one. See Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 1469 n. 6, 25 L. Ed. 2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 1446, 25 L. Ed. 2d 763 (1970).
It is therefore of no moment that parole generally can be characterized as a legislative grace, and that ineligibility of parole for narcotics offenders could be classified as the withholding of a legislative grace.*fn6 See Smith v. United States, supra, 324 F.2d at 441. Rule 11 is not concerned with the legislative genesis of the ineligibility for parole, but with the extent to which ineligibility for parole could influence an accused's decision whether to plead guilty.
The government makes two arguments that relief should be denied to appellant Bye. First it demonstrates that the actual sentence received by Bye requires a shorter mandatory incarceration than the maximum possible sentence on the two counts even with eligibility for parole. The maximum sentence was forty years and if parole were available, the minimum service under such a sentence would be thirteen and one-third years. Bye received a total sentence of fifteen years, and can be released without parole in just over ten years if he accumulates full credit for good time. See 18 U.S.C. § 4202.
The government thus contends that the actual sentence requires mandatory incarceration well within the range of the perceived mandatory period even if Bye had thought that parole was available. Therefore, Bye's expectations as to his sentence allegedly were not upset by the actual sentence, and mere disappointment with the time he must serve should not entitle him to relief. Smith v. United States, supra, 324 F.2d at 440 and 441-442 (concurring opinion). Contra, e.g., Durant v. United States, supra, 410 F.2d at 691; Berry v. United States, supra, 412 F.2d at 191.
The government's argument that Bye was not prejudiced since his actual mandatory incarceration under his sentence falls within the perceived range of mandatory incarceration periods had parole been available, misconceives the nature of the danger of an accused pleading guilty while unaware of his ineligibility for parole. The danger is that the accused makes his decision to plead guilty underestimating by a factor of three the risk of prolonged mandatory incarceration. If the accused's ineligibility for parole is known to him prior to entering his guilty plea, he may decide not to plead guilty at all in view of the greater perceived risks of lengthy imprisonment. Indeed Bye alleged in his petition that he would not have pleaded guilty had he known that he was ineligible for parole.
Second, the government argues that Bye's claim that he was unaware of his ineligibility for parole is incredible and should be rejected without a hearing.*fn7 The government relies on the fact that Bye made similar claims which were rejected in a prior § 2255 motion*fn8 (that he was induced to plead by misrepresentations as to whether the sentences would be concurrent), and that he never before this action (two and one-half years after sentencing) claimed that he was unaware of his ineligibility for parole.*fn9 While the rejection of similar claims and the belatedness of the present claim are relevant to Bye's credibility in alleging he was unaware, they do not make Bye's claim necessarily incredible.
Indeed, Bye's claim may well be found to be credible. It would seem that the availability of parole is generally expected by persons accused in our system. Recent Decision, 41 Temple L.Q. 491, 496 (1968). "Probation and parole are concepts which our society has come to accept as natural incidents of rehabilitation during imprisonment. This is not true where, as here, because of a Congressional directive tucked away in a relatively obscure section of the Internal Revenue Code, a narcotics offender is faced with the unconditional loss of probation and parole." Berry v. United States, supra, 412 F.2d at 192.
Moreover, Bye offered evidence of how he became aware of his ineligibility for parole. In a letter to Judge Cooper dated September 26, 1969, he enclosed a copy of the "commitment card" issued to each prisoner which contains a summary of the term of a prisoner's imprisonment. On the line headed: "Elig. for parole" Bye's card read: "NOT."
In any event, since Bye has demonstrated a failure by the district court to comply with Rule 11 in not informing him of his ineligibility for parole, the government must bear the burden of proving that his guilty plea was entered voluntarily with an understanding of the consequences of the plea. Durant v. United States, 410 F.2d 689, 693 (1 Cir. 1969); Munich v. United States, 337 F.2d 356, 360-361 (9 Cir. 1964); see Lane v. United States, 373 F.2d 570, 573, 576 (5 Cir. 1967); Domenica v. United States, 292 F.2d 483, 486 (1 Cir. 1961); Halliday v. United States, 394 U.S. 831, 832, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (1969); McCarthy v. United States, 394 U.S. 459, 468-469 n. 24, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); George v. United States, 421 F.2d 128, 129 (2 Cir. 1970) (per curiam). The government's arguments based on rejection of similar claims and the belatedness of the claim do not satisfy its burden, especially when Bye had not been granted a hearing on his allegations.*fn10
Since Bye's plea was accepted on November 29, 1966, prior to the Supreme Court's holding in McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969) (noncompliance with Rule 11 requires an automatic vacation of the guilty plea), the proper remedy in this case is to remand to the district court for a factual hearing on Bye's claim that at the time he pleaded guilty he was unaware of his ineligibility for parole. Halliday v. United States, supra, 394 U.S. at 831, 89 S. Ct. 1498 (per curiam) (per se rule of McCarthy, supra, applies prospectively to pleas accepted after April 2, 1969); George v. United States, 421 F.2d 128 (2d Cir. 1970) (violation of Rule 11 requirement as to understanding of nature of the charge and consequences of the plea).
Reversed and remanded.