The opinion of the court was delivered by: MISHLER
MEMORANDUM OF DECISION AND ORDER
The petitioner moves to vacate the plea of guilty to Count One of the indictment, 72 CR 672, on July 17, 1972, before Judge Orrin G. Judd,
and the judgment and commitment made and entered January 23, 1973, sentencing the petitioner to a prison term of ten years.
The five-count indictment charged the petitioner with violations of 18 U.S.C. §§ 2114 and 641 (two counts of the indictment charged the petitioner with violations of 18 U.S.C. §§ 111 and 1114, which are not pertinent to this discussion). Count One of the indictment charged the petitioner and his co-defendants with robbing John J. Talton, Jr., of the sum of approximately $5,000, which he had in his custody. Count Two of the indictment charged the petitioner with placing Mr. Talton's life in jeopardy during the commission of the crime charged in Count One.
Count Five charged the petitioner and his co-defendants with stealing United States government funds in violation of 18 U.S.C. § 641.
When Smith offered his plea on July 17, 1972, Judge Judd made extensive inquiry to determine that the plea was voluntarily and knowingly made. Judge Judd advised the petitioner on the nature of the charge in Count One as robbing "a person who had custody of United States funds in the amount of about $5,000," and further advised Smith that the offense carried "a potential penalty of imprisonment for not more than ten years." A discussion ensued concerning the possible penalty under Count Two (the twenty-five year count), since the government stated that it would dismiss that count "if the government is satisfied" that Smith cooperated in giving information concerning narcotic dealers and helping to locate one of the co-defendants, A. C. Doyle. Referring to the ten-year count, Judge Judd said, "Mr. Smith, other than the risk of going to jail for twenty-five years, other than that consideration, has anyone forced you to plead guilty?" Smith answered, "No Sir." Smith admitted his complicity in robbing Talton of the sum of approximately $5,000. He stated that he and his three co-defendants had planned to rob Talton who they had believed to be a drug dealer about to make a purchase of narcotics. (It turned out that Talton was a special agent of the Drug Enforcement Agency, acting in an undercover capacity.) The court found that there was a factual basis for the plea and, satisfied that the plea was voluntarily, knowingly, and intelligently made, Judge Judd accepted the plea of guilty to Count One.
Smith was released on bail pending sentencing and became a fugitive. He was arrested and brought before the court for sentencing on January 23, 1973. Petitioner's counsel and the assistant United States attorney both discussed the disposition of "the twenty-five year count" (Count Two). Judge Judd stated, "According to the presentence report he stated that he was not guilty, that he pleaded guilty on the attorney's advice in order to avoid the 25-year sentence" (Tr. 1/23/73, p. 5). The court then invited Smith to move to withdraw his plea of guilty to Count One. The assistant United States attorney relented during the discussion and agreed "to dismiss the 25-year count" if the defendant was ready to be sentenced on Count One. The court indicated that it would not increase the prison term because of the bail jumping offense. Before sentencing the court again invited the petitioner to withdraw his plea, after stating the following:
The presentence report which I have made available to defendant's counsel and which they have just returned states the offense and states that he pleaded guilty on the advice of his attorney and if convicted he faced 25 years. Of course, as I read the statute, there was a mandatory 25 year sentence if he were convicted of participation in the armed robbery of a Federal agent, and there is going to be a substantial prison sentence and if the defendant wants to withdraw his plea and go to trial now, this is his last opportunity to make that request. I am not sure I would grant such an application because I have heard guilty pleas from the other three defendants in the case, and from all that I have learned I think that a jury would convict this defendant.
was triggered by the Second Circuit Court of Appeals' decision in United States v. Rivera, 513 F.2d 519 (2d Cir. 1975), and United States v. Reid, 517 F.2d 953 (2d Cir. 1975),
which held that 18 U.S.C. § 2114 is limited to cases having a postal nexus. The dual-pronged attacked leveled at the plea claims (1) that an offense under § 2113 is not alleged and/or is not supported by the facts established during the plea proceeding since the funds in Talton's custody were DEA funds; and (2) that the misinformation based on the mistake of law supplied by Smith's counsel, the prosecutor and the court that a conviction under Count Two would result in a mandatory 25-year term rendered the plea involuntary and void.
I. THE LACK OF A POSTAL NEXUS
The facts admitted by Smith constituted a violation of 18 U.S.C. §§ 641 and 2. This is not a case of a defendant pleading to a charge that does not constitute a federal crime.
A miscitation is not a ground for vacating an otherwise valid plea. United States v. Rivera, 513 F.2d 519, 533 n. 21 (2d Cir. 1975); United States v. Calabro, 467 F.2d 973, 981 (2d Cir. 1972), cert. denied, 410 U.S. 926, 35 L. Ed. 2d 587, 93 S. Ct. 1357 (1973); United States v. McKnight, 253 F.2d 817, 820 (2d Cir. 1958). See F.Cr.P.R. 7(c).
II. THREAT OF MANDATORY TWENTY-FIVE-YEAR TERM LATER FOUND TO BE ERRONEOUS
A guilty plea is more than an admission of unlawful conduct. It is a waiver of all the constitutional rights embodied in a right to a fair jury trial. It cannot be sustained unless the record shows it was "made voluntarily after proper advice and with full understanding of the consequences." Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 583, 71 L. Ed. 1009 (1927); Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 513, 7 ...