The opinion of the court was delivered by: BARD
On December 12, 1950 Morris Shneer was indicted on indictments Nos. 15978, 15979 and 15991.
On February 13, 1951 he was arraigned on indictments Nos. 15978 and 15979. On February 21, 1951 he was arraigned on indictment No. 15991. On each indictment defendant pleaded not guilty. At both arraignments counsel for defendant stated in open court that on February 9, 1951 he had filed motions to dismiss each indictment because the indictments failed to give certain particular information necessary for a proper defense.
On March 5, 1951, in open court, counsel for defendant stated that in the interim the United States Attorney had provided him with the necessary information and that on the basis of this information he believed that even if the present indictments were dismissed, other indictments could be returned that would be valid. Therefore, counsel withdrew his motions to dismiss the indictments.
On March 19, 1951 defendant was sentenced on indictment No. 15978 to pay a fine of $ 300, on indictment No. 15979 to pay a fine of $ 200, and on indictment No. 15991 to pay a fine of $ 500 and to be imprisoned for a period of two years.
On March 24, 1951 counsel for defendant presented a petition for modification of sentence on the ground that defendant's mother was seriously ill of a heart ailment, that she had no knowledge of her son's incarceration, and that the disclosure of such fact to her may prove fatal.
On April 5, 1951 a hearing on that petition was heard in open court, and on the same date the court declined to modify the sentence and denied the petition.
On April 13, 1951 new counsel for defendant filed a motion to set aside judgment of conviction and to permit defendant to withdraw his plea of nolo contendere, which motion is now before me. The allegations were made that the indictment is legally defective because of improper joinder of counts, that the prosecution was barred by the statute of limitations, and that defendant withdrew his motions to dismiss the indictments and entered pleas of nolo contendere on the representation and assurance of an Assistant United States Attorney that if the defendant would change his plea to guilty or to nolo contendere, the United States Attorney would recommend the imposition of a fine only and the defendant would not be sentenced to jail.
On April 30, 1951 a hearing on this motion was held in open court and testimony was taken.
Present counsel for defendant strongly urges that defendant changed his plea of not guilty solely on the representations of the Assistant United States Attorney that defendant would not go to jail, and that but for these representations defendant would not have changed his plea and would have pressed his motion to have the indictments permanently dismissed.
The questions of whether the indictments improperly joined different counts and whether the statute of limitations permanently barred prosecution were and are waived by defendant's plea of nolo contendere to each indictment. These questions need no further consideration.
Present counsel's main attack is on the basis of the representation that defendant would not go to jail.
Original counsel in his testimony on the witness stand on April 30th did not go as far as present counsel contends. To the best of my recollection, original counsel testified that the Assistant United States Attorney voluntarily told him that if the defendant changed his plea to guilty, defendant would be fined but not sentenced to jail, that he relied upon this statement knowing that the Assistant United States Attorney had no right to commit the Court to impose such a sentence, that he knew that no prior defendant had been sentenced to jail in this type of case when he had pleaded guilty, that he advised this defendant to plead nolo contendere in view of the Assistant United States Attorney's statement because there was at least a probability that a jury would convict him, whereupon defendant would probably be sentenced to jail, that he considered the Assistant United States Attorney's utterance as a statement and not as a guarantee that defendant would not go to jail, and that he did not feel that he or defendant had been overreached or 'double-crossed' when the Court imposed a jail sentence.
Nathan Briskin testified that he is the brother-in-law and business partner or associate of defendant, that he knew the Assistant United States Attorney but did not recall how he knew the Assistant United States Attorney, that he had never spoken with him before, that he approached the Assistant United States Attorney in the corridor outside the courtroom on an impulse of the moment and without introducing himself asked whether the Assistant United States Attorney was sure defendant would not be sentenced to jail, and that the Assistant United States Attorney, without asking him who he was, said that no jail sentence ...