Appeal from an order entered in the Southern District of New York, Irving Ben Cooper, District Judge, denying a motion to vacate a judgment of conviction and concurrent sentences following pleas of guilty to three counts of conspiring to transport stolen securities in foreign commerce. Affirmed as to one conspiracy count but remanded for reconsideration of sentence on that count; reversed as to the other conspiracy counts and remanded for repleading to those counts.
Before: MULLIGAN and TIMBERS, Circuit Judges, and THOMSEN, District Judge.*fn*
On this appeal from an order entered June 13, 1974 in the Southern District of New York, Irving Ben Cooper, District Judge, denying without a hearing a motion pursuant to 28 U.S.C. § 2255 (1970) to vacate a judgment of conviction and concurrent sentences following pleas of guilty to three counts of conspiring to transport stolen securities in foreign commerce, the essential issues are: (1) whether the guilty pleas were accepted in violation of Fed. R. Crim. P. 11;*fn1 and (2) whether sufficiently substantial issues were raised in the district court to have warranted an evidentiary hearing. For the reasons below, we affirm as to one conspiracy count but remand for reconsideration of sentence on that count; and we reverse as to the other conspiracy counts and remand for repleading to those counts.
I. FACTS AND PRIOR PROCEEDINGS
Joseph Seiller and others were indicted on June 23, 1971 in the United States District Court for the Southern District of New York in two indictments which charged various offenses of transporting and conspiring to transport stolen securities, largely in foreign commerce.
One indictment (71 Cr. 675) charged Seiller and William Silverman with conspiring to transport stolen securities in foreign commerce in violation of 18 U.S.C. § 371 (1970) (Count One), and transporting a stolen $1,000,000 Treasury bill in violation of 18 U.S.C. § 2314 (1970) (Count Two); and it charged Seiller, Silverman, Robert Cohn, Michael Selvaggio and Stephen Salvaggio with a separate conspiracy to transport stolen securities in foreign commerce in violation of 18 U.S.C. § 371 (1970) (Count Three).
The second indictment (71 Cr. 676) charged Seiller, Gabriel Infanti and Nathan Kurtz with a third conspiracy to transport stolen securities in foreign commerce in violation of 18 U.S.C. § 371 (1970) (Count One), and transporting stolen securities in foreign commerce in violation of 18 U.S.C. §§ 2314 and 2 (Count Two).
On June 28, 1971, not guilty pleas were entered on behalf of Seiller to each of the five counts in both indictments.
On May 1, 1972, accompanied by his attorney, Seiller appeared before Judge Cooper. The attorney informed the court that Seiller wished to withdraw his pleas of not guilty and to plead guilty, with the government's consent, to the three conspiracy counts, i.e., to Counts One and Three of indictment 71 Cr. 675 and to Count One of indictment 71 Cr. 676.*fn2 As Seiller was suffering from vertigo at the time, he was allowed to remain seated during the proceedings.
The court thereupon conducted a detailed, comprehensive voir dire examination of Seiller to determine whether to accept his pleas of guilty. The court ascertained, among other things, that Seiller was 47 years of age and had attended a university. The court emphasized to Seiller the specific consequences of his pleading guilty. The court requested that Seiller listen with care as the clerk read in full each of the three counts to which Seiller wished to plead guilty. After each count was read, the clerk asked Seiller whether he understood the charge as read and how he wished to plead. Seiller responded as to each count that he did understand the charge and that he pleaded guilty.*fn3
The court then asked Seiller whether he understood that each count constituted a separate crime; whether he understood the maximum terms of imprisonment and fines that could be imposed; and whether he understood that consecutive sentences on each of the three counts could be imposed, so that in effect he was facing a maximum prison sentence of 15 years and a maximum fine of $30,000 as a result of his guilty pleas. Seiller answered affirmatively to each question.
The court further inquired whether Seiller had discussed all of the charges fully with his attorney; whether he had held anything back from his attorney; and whether he had understood everything his attorney had told him concerning his rights.*fn4 Although Seiller responded by indicating full disclosure to his attorney and complete understanding of his rights, the court nevertheless explained to Seiller that he had a right to trial by a jury of 12; that at such trial the government would have the burden of proving him guilty beyond a reasonable doubt; that he could refuse to testify or to call witnesses; that the jury would be told that no unfavorable inferences could be drawn from such refusal to testify or to call witnesses; and that he could be convicted only by a unanimous vote of the jury. Seiller stated that he understood each of these rights which he was waiving by his guilty pleas.
The court then inquired whether Seiller was pleading guilty of his own free will. At first Seiller attempted to condition his pleas upon the understanding that he would not be deported. The court bluntly informed him that no proviso could be added to his pleas. Seiller thereupon stated that he understood that he was "making a plea of guilty without any conditions of any kind." In response to the court's further inquiry, Seiller stated that in return for his guilty pleas no one had made any threat or promise, including no promise of a more lenient sentence.*fn5
Finally, after questioning Seiller as to the factual basis for his pleas,*fn6 the court made the following finding in accepting his pleas of guilty:
"Let the record show that having listened to the defendant, I am content to state for the record that his alacrity of responses and his show of intelligence that he demonstrated was based not only on what he said, but also on his facial expressions and as a fact finder I am content that this defendant knows the full significance of what he is undertaking to do by taking a plea of guilty to each one of the three conspiracy charges, and accordingly, I direct the Clerk to enter a plea of guilty as to each conspiracy charge contained in 71 Cr. 675 and a plea of guilty to the conspiracy charge set forth in 71 Cr. 676."
Seiller's change of plea proceedings took place before Judge Cooper on May 1, 1972. Later that month, Count One of indictment 71 Cr. 676 (a conspiracy count to which Seiller had pleaded guilty) was dismissed at the close of the government's case during the trial of his co-defendants Infanti and Kurtz (they were both convicted on Count Two). The following month, his co-defendant Silverman was acquitted by a jury on Count Three of indictment 71 Cr. 675 (another conspiracy count to which Seiller had pleaded guilty); and in December 1972, all remaining charges in indictment 71 Cr. 675 were dismissed against Seiller's co-defendants Silverman, Cohn, Selvaggio and Salvaggio (including both conspiracy counts to which Seiller had pleaded guilty).*fn7
Nettled by his fate as compared to that of his co-defendants, Seiller on January 12, 1973 moved to withdraw his pleas of guilty pursuant to Fed. R. Crim. P. 32(d). In an affidavit in support of his motion, Seiller claimed to be innocent of the crimes to which he had pled guilty; he stated that his "plea of guilty was entered improvidently, while [he was] in a state of debilitating health, which rendered him unable to think properly, having to move on crutches or canes, because of his sickness keeping him in a state of unbalance"; and he inferred that he did not understand the nature of the charges against him when he pleaded guilty because of language difficulties:
"That apparently since I have a language barrier, being versed in the German language, and, although I understand some basic English, there is an area of exchange that has been difficult for me to understand. Consequently, he sought the advice of attorneys who are bilingual and understand German fluently and are capable of expressing the law more clearly to the said deponent, he has been made aware that his acts were not those of a guilty person, and should not have taken a plea of guilty."
Seiller further urged in support of his motion that the government had withdrawn indictment 71 Cr. 675 "as against all parties" and that "[in] indictment No. 71 Cr. 676 the co-defendant therein was found not guilty because there was no conspiracy, therefore, I cannot be said to conspire with myself." Seiller also alleged that "there was no plea bargaining herein."
The government's opposing affidavit challenged Seiller's assertions as vague and conclusory; stated that there was no hint anywhere in the record that Seiller did not comprehend what he was doing when he entered his guilty pleas; and urged that Seiller's motion in truth was not based upon Seiller's ignorance or inability to understand the plea proceedings but upon his hope that the government would be unwilling or unable to prosecute him at that time.
In a memorandum opinion filed January 26, 1973, Judge Cooper denied Seiller's motion. Supplementing the remarks he had made at the close of the change of plea ...