The opinion of the court was delivered by: COOPER
We are taken to task by defendant in his petition (pursuant to Title 28, U.S.C. § 2255) sworn to February 21, 1974
as "true and correct to the best of his knowledge and belief," for imposing a sentence designating him, after a medical study we ordered (pursuant to Title 18, U.S.C. § 4208), a Young Adult Offender and sentencing him on August 14, 1973 to an indeterminate term of imprisonment not to exceed ten years.
He now insists that he be allowed to withdraw his plea of guilty, entered on January 4, 1973, to "the crime of armed bank robbery . . . a crime which he did not commit" (petition, p. 4) and that he be sentenced for the only crime to which he confessed -- "the crime of assult (sic) with a weapon" (petition, p. 4).
He contends our sentence was "invalid" and should be set aside. We refuse, and because he appears pro se we undertake to tell him why, pointing out at the same time that his petition is a sham and was spurred on by trick.
Count one charges defendant on or about October 10, 1972 "unlawfully, wilfully and knowingly, by force, violence and intimidation did take from the person and presence of another" approximately $9,441.00 "in the care . . . and possession of the Nanuet National Bank . . . the deposits of which were then insured by the Federal Deposit Insurance Corporation." (Title 18, U.S.C. §§ 2113(a) and (b) and 2.)
Count two charges defendant "in committing and attempting to commit the offense set forth in Count One of this indictment, unlawfully, wilfully and knowingly did . . . put in jeopardy the lives of persons by the use of dangerous weapons and devices to wit, a firearm." (Title 18 U.S.C. §§ 2113(d) and 2.)
As we shall attempt to make clear hereinafter, defendant entered a plea of guilty to count two in open court on January 4, 1973, represented then by his attorney, Robert Brown, Esq. We note also that both Judgment and Commitment forms of March 20, 1973 and August 14, 1973 are unmistakable in their recital that defendant entered a plea of guilty to count two.
The official minutes recorded at the time of plea on January 4, 1973 consist of twenty-eight (28) pages. They reveal that at the very outset, defendant's counsel clearly announced defendant's intention to plead guilty to count two. "There are two charges against Mr. Bryan . . . The defendant has discussed this with me and I discussed both counts with him . . . he . . . requests permission to plead guilty to the second count . . . That is, the Grand Jury further charges . . ." and counsel then read word for word the exact language of count two set forth in the indictment (pp. 2, 3).
At another point (p. 6) Mr. Brown stated, "I discussed this with Mr. Bryan quite a number of times --"
Before we inquired of defendant whether his attorney correctly stated defendant's position as to the plea we made certain he understood what was taking place and assured him (pp. 3a, 4): ". . . we don't want anybody to plead guilty to anything . . . unless he did commit the act charged against him. We do not want anybody pleading guilty just because he thinks, well, I might as well get rid of the case, or because it might be a good idea to plead guilty, or that you might get a break . . . We want a man to plead guilty only if he is guilty and did commit the act charged against him. Do you understand that? A. Yes, sir."
It then became evident that defendant was trying to tell us that when he entered the bank with his friend Anderson, he did not intend anything illegal or even improper; that after they were in the bank, defendant suddenly noticed Anderson had a gun in his hand while attempting to take property of the bank; whereupon defendant displayed his own gun while undertaking to support Anderson's efforts. As defendant stated in reference to Anderson: "I couldn't turn my back. Put it this way, I had to go along; I was forced . . . I was forced at this point to go along with him." (p. 5) Shortly thereafter, to our inquiry of Mr. Brown, "How did he [defendant] participate in it?", the attorney responded, "By the display of the gun and by going along with the other person. He made no effort to impede him. As a matter of fact, his acts helped accomplish the crime." (p. 6)
At that juncture, we were not certain that the defendant had unambiguously admitted the charge in count two. We declared a recess for the sole purpose of enabling counsel to confer further with his client. During the thirty-minute recess, we observed to counsel on both sides (in the robing room), ". . . no man should plead guilty unless the judge is convinced that the plea is voluntary and with full understanding by the defendant. . . . I don't want any accommodation by way of a plea, and I don't want any of us to be involved with anything that might reflect on any of us, but, more important, what is not basically justice . . . it might be the better part of wisdom to let this thing be laid before a jury and let them decide his guilt or innocence, unless I am convinced that what he is about to say to me, if he does say anything, is well meant, and not just formulated for the purpose of satisfying a judge . . . it will have to be the kind of recital by the defendant that will wash out completely any thought that he was accommodating the judge by formulating the words that would be acceptable to the judge . . . It is the judge's obligation to protect him and make him see that the better part of wisdom is to make a clean breast of it, if he wants to plead guilty." (pp. 10-13)
Mr. Brown's comment during the recess has significance: "But he was conscious; he went along with the situation. The word 'forced' I think in his case was that he was forced out of a sense of loyalty, chivalry . . ., but he actively participated and knew what he was doing." (pp. 12, 13)
We concluded the conference with the observation, "If you [Mr. Brown] think something can be accomplished today I will wait; if not, he can come in and plead any time or stand trial." (p. 14) ...