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June 3, 1965

Charles H. PTOMEY and Edward L. Young

The opinion of the court was delivered by: ROSENBERG

 The defendants are here for the second time with a Motion to Withdraw their Respective Pleas of Guilty to charges of armed bank robbery. The pleas of guilty were entered by them on October 1, 1964, before me in open court. At the time both defendants were represented by John Cohen, an attorney of the Allegheny Bar and the Bar of this United States District Court.

 There is no dispute as to Mr. Cohen's competence and of his long experience in criminal practice before the various courts in this City. Neither is there any complaint of Mr. Cohen's representation of the defendants and of the handling of their case. Nor is there any complaint of his handling of their previous effort for the withdrawal of their respective pleas of guilty. It was after the first motion was denied by a memorandum opinion and order on January 6, 1965, that the defendants presented their present motion through new counsel, Attorney H. David Rothman.

 In denying the defendants' first motion, I did so because first, defendant Ptomey presented nothing and remained mute during the entire time. He was given the opportunity in court to present whatever he may have had to justify or support his motion; and second, it was only after some considerable urging on my part that eventually defendant Young took the stand and in substance made the statement that he had been convinced or persuaded to enter a plea of guilty by his attorney, or that he was of the opinion that his attorney wanted him to enter a plea of guilty. When his attorney in questioning him, indicated that he did not evince any partisanship in making the choice on a plea of guilty or not guilty, the defendant Young agreed with his attorney. Nothing was here said, at this time, or was any indication given that the defendants were induced, coerced or deceived by any law enforcement officer.

 In the second motion, as filed by Attorney Rothman, were set forth these reasons that: (1) the defendants' confessions were made prior to a hearing before the United States Commissioner, without benefit of counsel and in the absence of any warning that they had a right to remain silent and, therefore, such confessions were not only not voluntary but were in violation of the defendants' rights under the Fifth Amendment of the Constitution; (2) the confessions of the defendants were procured by promises of leniency; (3) the Government had insufficient evidence for a conviction; (4) the defendants were not adequately apprised of their right to attack the validity of their confessions and to stand trial; and (5) their pleas of guilty were entered on an erroneous assumption that they were required to plead guilty.

 Upon presentation of the second motion, I held a second hearing with the view of receiving all possible evidence and granting the defendants a second opportunity of showing any wrongful processes or procedure as may have affected them.

 At both hearings on the respective motions to withdraw the plea of guilty, both defendants were questioned by me as to when they entered their pleas of guilty before me. Both defendants were given ample time to make explanations surrounding their entering pleas in open court. I am convinced that the answers as given by both defendants were evasive and lacked earnestness and honesty; and as well, I am convinced that at no time from the inception of this action against them as they submitted themselves before the law enforcement officers were they deceived or induced to do that which they, for their own personal reasons chose to do - tell the truth.

 From what appears in the evidence, when the defendants submitted themselves to the law enforcement officers, it would seem that they came because there was some question of their being accused or, at least, being under suspicion for, perhaps, other matters. Under such circumstances, they would be entitled to the right of meeting with their attorney before making any statements. Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). But, on the other hand, there is nothing in law that will prevent a defendant from making a statement of confession when he does so understandingly, voluntarily and intentionally. Friedman v. United States, 200 F.2d 690, C.A.8, 1953, cert. denied 345 U.S. 926, 73 S. Ct. 784, 97 L. Ed. 1357, 1953. In Jackson v. United States, 119 U.S. App. D.C. 100, 337 F.2d 136, D.C.Cir., 1964, it was held that even though a defendant was at the time without the assistance of counsel and was properly advised of his rights, that a confession which followed was admissible in evidence. And at page 138 of 337 F.2d, this was said: "* * * This court has expressly held that the Sixth Amendment does not require that counsel be appointed at the preliminary hearing." Neither is there any rule of law which requires law officers to take arrested persons to a commissioner for arraignment before taking a statement, where such a statement is willingly and voluntarily given. Walton v. United States, 334 F.2d 343, C.A.10, 1954.

 As for the defendant Ptomey, this was not the first time he gave confessions to the F.B.I. He had done so approximately one month previously in another unrelated case. He did not deny that he knew the meaning of the words contained in the written confession as he gave it. As for the defendant Young, he testified that he knew the meaning of the Fifth Amendment; that he had learned this during the McCarthy era in the early 1950's; and, that he knew the meaning of his statements as contained in the confession.

 Although they did testify that they were not given a chance to read the statements as signed by them, there is sufficient evidence to contradict their testimony to this effect. From observing the witnesses as they testified on the stand and from an examination of the content of the testimony of all the witnesses, I am unconvinced that the defendants made their statements to the F.B.I. men unknowingly, unintentionally and involuntarily. Neither can I find any support in the evidence that confessions were made by the defendants because of promises of leniency by federal and local agents. I am unconvinced that the defendants came before me in open court and entered their pleas of guilty under the cloak of ignorance, misunderstanding and unwillingness.

 From all the appearances of the defendants before me, and from their testimony and demeanor at these times, I find no credence in their present contention that they pleaded guilty before me because they thought they had to do so after making their statements before the law enforcement officers and because they thought their attorney desired them to do so. I have examined further their assertion that their counsel advised them to plead guilty because, with the evidence which the Government possessed, they would be "cut to ribbons" by the prosecutor if they went to trial. This is not supported by the evidence.

 The defendants further contend that the Government has insufficient evidence upon which to convict them and that therefore this is a reason for allowing a change of plea. If the defendants had demonstrated the existence of improper factors which induced either or both of them to enter a plea which they did not want to enter, they would have had grounds for recalling their pleas. Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473, 1962; Friedman v. United States, supra; United States v. Maroney, 230 F. Supp. 468 (W.D.Pa., 1964).

 My concern here is not whether the defendants made an error in choice or a misjudgment of what proof they believed the Government had against them in the pending charge for bank robbery. Oftentimes convictions are had where there is no evidence to convict, but where defendants, from a sense of judgment or conscience or other reasons, submit themselves to criminal justice. The concern of the law under such circumstances is that, as in all other cases, the guilty be punished, but that it be done within the protections provided by the Constitution and the law. Although it does not appear here from the evidence of the defendants that they did not commit the crimes for which they are presently charged, there is no assertion by them that whatever evidence the Government does have is either erroneous or baseless. But this is my lesser concern than that these defendants with one other who was associated with them, came to the law enforcement officers, at the very beginning, of their own volition and after they had been properly warned and cautioned, each separately made statements of guilt in the participation of the bank robbery; that this attitude as expressed in their statements continued for many months after the statements were made and after each of the three had entered pleas of guilty in open court under cautioning; that one of these had already been sentenced and sent for study; that eventually all three had been brought together in the Allegheny County Jail for the purpose of testifying against two others who had ...

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