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UNITED STATES v. BOYANCE

September 15, 1966

UNITED STATES of America
v.
Rudolph E. BOYANCE



The opinion of the court was delivered by: LUONGO

 LUONGO, District Judge.

 On November 21, 1961, Rudolph E. Boyance and seven others *fn1" were indicted for conspiracy to violate the counterfeiting laws of the United States. In three other counts of the indictment Boyance was charged with possession and sale of counterfeit $20 Federal Reserve notes. On May 31, 1962, while represented by counsel, Boyance entered a plea of guilty to the four counts in which he was named and, on August 14, 1962, he was sentenced to a term of imprisonment of a year and a day on each count, the sentences to be concurrent and to commence at the expiration of a state sentence he was then serving. Three years later, on August 20, 1965, Boyance filed the motion now before me for decision, a motion under Criminal Rule 32(d) to withdraw the plea of guilty.

 Two grounds are asserted for this motion; first, that the court failed to comply with the requirements of Criminal Rule 11 in that it did not make appropriate inquiry at the time of the plea before accepting it; and second, that the plea was not voluntary.

 Preliminarily, a few comments concerning the timeliness of this motion. There is no time limit on a motion to withdraw a guilty plea under Rule 32(d), *fn2" United States v. Washington, 341 F.2d 277, 281 (3d Cir.), cert. denied, De Gregory v. United States, 382 U.S. 850, 86 S. Ct. 96, 15 L. Ed. 2d 89 (1965). If such motions are made before sentence is imposed they should be granted with great liberality, United States v. Roland, 318 F.2d 406, 409 (4th Cir. 1963), but if made after sentence defendant must show that withdrawal of the plea is necessary "to correct manifest injustice." See Sullivan v. United States, 348 U.S. 170, 174, 75 S. Ct. 182, 99 L. Ed. 210 (1954); Davenport v. United States, 122 U.S.App.D.C. 344, 353 F.2d 882, 885 (1965) (per curiam); United States v. Roland, supra. ("only in extraordinary cases"); Fed. Rules Crim. Procedure 32(d). The application is addressed to the sound discretion of the trial judge. Davenport v. United States, supra; United States v. Roland, supra; United States v. Shneer, 194 F.2d 598, 599 (3d Cir. 1952).

 Failure to Make Inquiry at Time of Plea.

 The first ground asserted by Boyance is that the court failed to comply with the requirements of Rule 11 *fn3" before accepting his guilty plea and that failure, without more, entitles him to withdraw the plea and have the judgment of conviction set aside on a motion under Rule 32(d) or, if in federal custody at some later date, by a proceeding under 28 U.S.C.A. § 2255. If Boyance is correct in this contention he is entitled to the grant of his motion, for it is unquestioned that no inquiry was made at the time his guilty plea was accepted by the court.

 There is disagreement among the circuits as to whether the at-time-of-plea failure to inquire of a criminal defendant or otherwise determine that a plea was made voluntarily and with understanding, is a fatal defect foreclosing inquiry as to understanding and volition, or whether the deficiency may be cured in some fashion.

 That the court's failure to make inquiry at the time of plea vitiates the plea, requiring the setting aside of the judgment of conviction based thereon, appears to be the holding of the Court of Appeals for the Ninth Circuit in Heiden v. United States, 353 F.2d 53, at page 55 (1965). In holding the requirements of Rule 11 to be mandatory, the Court said:

 
"* * * the fact that a plea was intelligently entered and that counsel was intelligently waived must be ascertained at the time of arraignment or of waiver and not after the fact."

 The quoted language gives rise to some question that the ruling was limited to guilty pleas entered without counsel, but since the Court expressly overruled Long v. United States, 290 F.2d 606 (9th Cir. 1961) in which defendant had been represented by counsel at the time of the entry of the plea, the Ninth Circuit must be said to subscribe to the view that the time-of-plea deficiency in the record cannot be cured, whether or not the defendant had been represented by counsel at the time of plea.

 The contrary view has been followed in Hobbs v. United States, 340 F.2d 848 (7th Cir. 1965), cert. denied, 382 U.S. 908, 86 S. Ct. 245, 15 L. Ed. 2d 160 (1965) where, notwithstanding a failure to comply with Rule 11 at the time of the entry of the plea, the Court found from evidence adduced at a hearing on the defendant's § 2255 motion and the transcript of the trial that the plea had been made voluntarily and with understanding; Johnson v. United States, 301 F.2d 631 (8th Cir. 1962) where there was no inquiry at time of plea, but the voluntary nature thereof and understanding were determined from the "transcript as a whole," from the fact that defendant was represented by counsel of his own choosing, and that defendant was knowledgeable in criminal matters; Domenica v. United States, 292 F.2d 483 (1st Cir. 1961) wherein the matter was remanded to the trial court for hearing to ascertain whether, notwithstanding non-compliance with Rule 11 at time of plea, the plea was in fact voluntary and, if so, the failure to comply was harmless error; and finally, Del Piano v. United States, 362 F.2d 931 (3d Cir. May 17, 1966) in which the Court of Appeals for this Circuit, in ruling that the movant's claim that his guilty plea had been induced by promises of the FBI could not be conclusively resolved from "the motion and the files and records of the case," remanded the matter to the trial court for an evidentiary hearing on the factual issues raised by the motion. By remanding for an evidentiary hearing, the Court impliedly ruled that failure to comply with the requirements of Rule 11 did not foreclose inquiry into the alleged promises and their effect upon the voluntariness of the plea.

 I conclude, therefore, that the failure to make inquiry at the time of the entry of the guilty plea as required by Rule 11, does not, in and of itself, require the setting aside of the judgment of conviction based thereon.

 Merits of the Motion.

 Since the failure to inquire at time of plea does not constitute sufficient ground for setting aside the plea of guilty, it is necessary to consider whether Boyance should be permitted to withdraw the plea to "correct manifest injustice." Inquiry has been made into the circumstances leading up to, and surrounding the entry of the plea by an evidentiary hearing at which all witnesses requested by Boyance to be present were, by the court's direction, subpoenaed to, and did, appear and testify.

 On the credible evidence adduced at the hearing; from a review of the transcript of the proceedings before the Grand Jury which have been examined at Boyance's request; and on other matters of court record of which I may take cognizance, I find the following

 FACTS

 1. On or about March 27, 1961, upon his release from Burlington County jail, Boyance was invited to participate in the handling and distribution of counterfeit money.

 2. On or about March 27, 1961, Boyance communicated with FBI agent Noah Bass, for whom he had on earlier occasions acted as informant, to ascertain whether the latter would pay for information concerning counterfeit bills. Bass advised Boyance that such operations were within the jurisdiction of the Treasury Department rather than the FBI and offered to arrange a meeting for Boyance with Secret Service Agents of the Treasury Department. Boyance declined the offer and requested that his identity not be ...


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