Appeal from an order of the District Court for the Southern District of New York (Thomas P. Griesa, Judge) denying petitioner's motion under 28 U.S.C. § 2255 to vacate his conviction and sentence entered on a guilty plea. Reversed and remanded with instructions to vacate the conviction and permit petitioner to replead.
Oakes, Newman, and Winter, Circuit Judges.
This appeal from a denial of a collateral attack upon a federal conviction illustrates the need for careful compliance with the requirements of Rule 11 of the Federal Rules of Criminal Procedure that the trial court must (a) inform the defendant and determine that he understands the nature of the charge to which the plea is offered, Rule 11(c) (1), and (b) satisfy itself that there is a factual basis for the plea, Rule 11(f).*fn1 James Godwin appeals from a judgment of the District Court for the Southern District of New York (Thomas P. Griesa, Judge) entered August 31, 1981, denying his motion under 28 U.S.C. § 2255 to vacate a five-year sentence resulting from Godwin's 1973 conviction upon a guilty plea before former Judge Harold W. Tyler, Jr. The 1973 indictment charged Godwin with conspiracy to sell or dispose of stolen art works moving in interstate commerce, in violation of 18 U.S.C. § 371. Judge Tyler suspended execution of the sentence and placed Godwin on probation for five years. The 1973 conviction assumed added significance in 1978 when Godwin was convicted on unrelated charges for which Judge Griesa sentenced him to a ten-year term. Judge Griesa also revoked Godwin's 1973 probation, imposed the five-year term that Judge Tyler had suspended, and ordered that the 1973 five-year sentence run consecutively to the 1978 ten-year sentence. Because we conclude that the 1973 guilty plea violated Rule 11 in respects cognizable on collateral attack, we reverse.
The 1973 count to which Godwin pleaded guilty charged that he conspired with co-defendant Paul Carter to sell $50,000 worth of art stolen from the Wellesley College Art Gallery. At the plea proceeding (and ever since) the Government and Godwin agreed on the essential facts of Godwin's role, but sharply disputed his state of mind, the Government contending that Godwin was unlawfully attempting to "fence" the stolen art, and Godwin contending that he was legitimately seeking to turn it in for a reward. Both sides agree that Carter, without any involvement by Godwin, stole the art and brought it from Massachusetts to New York. Carter then contacted his friend Godwin and said that he did not know what to do with some stolen art. Godwin arranged a meeting with an art dealer he knew, Professor Sigmund Rothschild. Unknown to Godwin, Rothschild was cooperating with the F.B.I. Carter and Godwin met with Rothschild and were arrested. At the plea proceeding Godwin asserted the following additional facts: Professor Rothschild was a customer of Godwin's limousine service, knew of his criminal record, and had told Godwin that if he ever heard about any stolen art work, he should contact Rothschild, and the art dealer would arrange to have the art work turned in for a reward. The Government made no representation that Rothschild disputed Godwin's version of his prior conversations with the art dealer.
At the plea proceeding in 1973, the District Judge and the prosecutor initially informed Godwin that he was being put to plea only on that portion of Count 1 of the indictment that charged a conspiracy to violate 18 U.S.C. § 2315, which concerns receiving stolen property. As set forth in paragraph 3 of Count 1, the indictment alleged: "It was further a part of said conspiracy that the defendants PAUL CARTER and JAMES GODWIN would receive, conceal, store, barter, sell and dispose of goods, wares and merchandise of a value in excess of $5,000, to wit, the works of art described in paragraph 2 herein which were moving as, were a part of and constituted interstate commerce from Wellesley, Massachusetts, to New York, New York, knowing the same to have been stolen, unlawfully converted and taken." As Judge Tyler explained to Godwin, "They are not accusing you of being up in Wellesley or moving the paintings down here. They are accusing you of being involved in storing, concealing and trying to fence or sell the goods here, see?"
Godwin explained his position as follows: ". . . what I'm saying is that we did not try to sell the stuff. I had no intention of selling it. I brought it over to this professor so he could return it to the museum, and there was supposed to be a reward for it."
Though alerted to Godwin's dispute concerning his state of mind, Judge Tyler responded with further explanation only of what Godwin was charged with doing: "Well, let me point out to you that paragraph 3 which I just alluded to a moment ago of Count 1 charges you with receiving, concealing, storing, bartering, selling and disposing of goods, wares and merchandise of a value in excess of $5,000, to wit, the works of art described in paragraph 2.
"Now, it would be sufficient if you just did one of those things, or if the government has evidence which was believed by the jury that you just did one of those things. Maybe you didn't offer to sell, but if you bartered or if you stored them or you received them or disposed of them or attempted to dispose of them, that would be sufficient. . . ."
After further colloquy as to the status of Count 2, which charged interstate transportation of stolen property in violation of 18 U.S.C. § 2314, Godwin was asked by the Court whether he still desired to plead guilty and responded, "I have to plead guilty."
After explaining the maximum penalty and the rights waived by a guilty plea, Judge Tyler returned to the nature of the charge and the facts of the case: "What they [the prosecution] are going to prove is that you had something to do with handling, storing, perhaps bartering or perhaps offering these paintings to somebody in return for a reward or a price or something of that nature here in New York City."
At this point Godwin furnished the details of his version of Professor Rothschild's standing invitation to arrange to have stolen art work turned in for a reward if Godwin ever heard of any. Godwin quoted the professor as saying, "'Listen, if you ever hear of any art or any pictures of value or anything like that, I have immunity from the Federal Bureau of Investigation,' he says, 'We would like to -- if you do get this here we could turn this in and there is a reward for it. Not that you are doing anything criminal, but just that.'"
Judge Tyler then had Godwin acknowledge the details of a call from Carter informing Godwin of the stolen items from Wellesley, Godwin's suggestion to Carter that the items be turned over to Professor Rothschild, and the visit to the professor during which the arrest occurred. The only inquiry as to Godwin's state of mind concerned his knowledge that the art works were stolen. The prosecutor's only statement concerning a factual basis for the plea was the following: "I would simply like to reaffirm the factual basis that Mr. Godwin has presented by representing that the government was prepared, indeed had prepared explicitly to try the case today to prove the charges contained in this count, and we were confident that we would do so beyond a reasonable doubt." The Court then observed, "I think those facts are more than adequate to support paragraph 3, the means paragraph of Count 1."
At that point, Godwin was formally put to plea. The clerk read an abbreviated portion of the indictment, which, for the first time, placed on the record the mens rea aspect of Count 1: "Mr. James Godwin, the charge is that you did unlawfully, wilfully and knowingly combine, conspire, confederate and agree with Paul ...