Lumbard, Chief Judge, and Waterman, Moore, Friendly, Smith, Kaufman, Hays, Anderson and Feinberg, Circuit Judges. Friendly, Circuit Judge (concurring in the result).
These are two appeals from orders of the Western District which by our order were consolidated and heard together. The first is from an order dated February 14, 1969, revoking Manley's probation under 18 U.S.C. § 4208(a) (2) (1964), and sentencing him to a term of five years' imprisonment. The second is from a decision and order of April 25, 1969, denying Manley's motion under 28 U.S.C. § 2255 (1964) to vacate the sentence and set aside the judgment of conviction entered on July 2, 1968, on Manley's plea of guilty to a one count indictment charging interstate transportation of a stolen motor vehicle, 18 U.S.C. § 2312 (1964). After this case was argued before a panel consisting of Judges Lumbard, Friendly and Feinberg, the active circuit judges voted to consider the case in banc because of the importance of the issues involved. We find no error and affirm.
On the night of March 21, 1967, Manley completed a six month sentence in the McKean County, Pennsylvania, jail. While in prison he had obtained some amphetamines which he took that afternoon; upon being released, he had a few drinks. During the night of the 21st, he travelled about 50 miles, from Pennsylvania to his home town of Gowanda, New York. The government charged that this trip was taken in a car Manley had stolen earlier that evening in Bradford, Pennsylvania. The car was found abandoned in Gowanda the next morning by the local police.
In Gowanda, Manley went to the apartment of a lady friend, where he spent the night. Using an old, outstanding warrant involving a fraudulent check, local police went to the apartment on the morning of March 22, arrested Manley, and took him to the city jail. Without a warrant they returned to the apartment several hours later and conducted a thorough search, in the course of which they found a man's black jacket in the pocket of which was a set of car keys for the stolen car.
While in jail on the state check charge Manley was interviewed several times by the FBI. Initially he denied having stolen the automobile. Later, allegedly after being given some tranquilizing drugs at the request of state authorities, he was again interviewed by the FBI and made certain damaging admissions connecting him with the car theft. On May 3, 1967, Manley was indicted for violation of the Dyer Act, 18 U.S.C. § 2312 (1964). He was arraigned nine months later, after serving a sentence for an unrelated state charge; upon arraignment a lawyer was appointed and Manley pleaded not guilty.
Assigned counsel then brought on motions to suppress the inculpatory statements and the evidence found at the lady friend's apartment. A hearing was begun before Judge Henderson, but was adjourned to allow Manley time to gather certain witnesses and records. To keep the matter moving, the judge ordered that a jury be impaneled in the interim.
In the section 2255 motion, Manley alleged that while the jury was being selected his lawyer told him of a tentative plea arrangement: if he would plead guilty, he would receive only two years' probation on a charge carrying a maximum penalty of five years' imprisonment and a $5,000 fine. He was told to decide quickly whether to plead, as the court was waiting. Under the circumstances, a plea would require Manley to abandon his attack on the admissibility of the confession, the coat, and the keys, virtually the entire case for the government. Following the advice of counsel, he entered a guilty plea and was duly placed on two years' probation in the custody of his mother.
In light of a history of a stormy relationship between Manley and his mother, the custody provision was questionable. Less than two months after sentencing, Manley's mother applied to the Probation Office to have him recommitted, making a variety of vague charges. At the lengthy probation revocation hearing that followed, the primary charge was that Manley had assaulted her by grabbing her housecoat and threatening her with a belt. During the course of the hearing, the court indicated that it felt her testimony was unreliable and her attitude towards her son incomprehensible. She admitted that she considered her custody an imposition and indicated that she preferred having him in jail.
Despite some reservations the court found that there had been a violation of probation. Rather than ordering imprisonment for the remainder of the two year probation term, the court -- noting "that it may be that it was a basic mistake to have you sent to Shinglehouse, to your mother's house at all" -- committed Manley for study and a recommendation on sentence by the Bureau of Prisons under 18 U.S.C. § 4208(b) (1964).
The report was very unfavorable to Manley and recommended that he be imprisoned for a term of five years, the statutory maximum. Faced with this adverse report, the court resentenced Manley to five years' imprisonment, which he is now serving.
Manley raises four challenges on these appeals. On the section 2255 motion to vacate his conviction, he complains that the plea was invalid because it was not taken in conformity with Rule 11 of the Federal Rules of Criminal Procedure which requires that the judge satisfy himself that there is a "factual basis for the plea." The Rule provides in part:
"The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere 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. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea."*fn1
Without holding a hearing, Judge Henderson denied the motion to vacate and in his decision accompanying the order he made no specific findings ...