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United States v. Ballerstedt

UNITED STATES COURT OF APPEALS THIRD CIRCUIT.


decided.: June 12, 1956.

UNITED STATES OF AMERICA, APPELLEE,
v.
ROBERT HERSHEY BALLERSTEDT, APPELLANT.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

Per Curiam.

This is an appeal from the denial of a motion for vacation of sentence under 28 U.S.C. § 2255.

On March 18, 1954 appellant was indicted for violating 18 U.S.C. § 2314; specifically that he had transported a certain airplane from Pennsylvania to New Jersey, the property of another, of a value in excess of $5,000 and "having been taken by fraud". Arraigned in open court, accompanied by his assigned attorney, he pleaded "not guilty". On April 20, 1954 he and his attorney appeared in court and moved for leave to change his plea to "guilty". The district judge read the indictment to him, then carefully examined him regarding it and his proposed change of plea as shown in the footnote.*fn1 Following that, the court granted the motion. On the date fixed for sentence, May 27, 1954, appellant, with his counsel, sought to change his plea back to "not guilty". Inquiry by the trial judge and further investigation at his direction by the F.B.I. satisfied him that appellant had not presented any cause for allowing the change of plea. The application was denied and appellant sentenced. Thereafter appellant filed his 2255 motion which was also denied.

From our own examination we are satisfied that the indictment charges an offense under Section 2314. Under the facts the district judge was well within his discretion in refusing to permit appellant to change his plea. Kercheval v. United States, 1927, 274 U.S. 220, 223-224, 47 S. Ct. 582, 71 L. Ed. 1009; United States v. Colonna, 3 Cir., 1944, 142 F.2d 210; Bergen v. United States, 8 Cir., 1944, 145 F.2d 181, 186; United States v. Denniston, 2 Cir., 1937, 89 F.2d 696, 698, 110 A.L.R. 1296.

The order of the district court will be affirmed.


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