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November 16, 1973


Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 I. Preliminary Statement

 This is a motion under 28 U.S.C. § 2255 seeking to invalidate a plea of guilty to three bank robbery charges on the ground that it was involuntarily made. The principal thrust of the motion is the claim that the plea was induced by a plea bargain among the defendant, the prosecutor, and the judge, which was breached when the judge imposed a sentence of 40 years instead of the 25 *fn1" for which defendant claims he had bargained.

 Santobello v. United States, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1972), held that due process requires relief for a defendant who has pled guilty where the prosecutor failed to perform a promise that induced the plea. Such relief can take the form of either performance of the promise or permission to withdraw the plea. But, as Judge Rosenn so aptly observed in Paradiso v. United States, 482 F.2d 409 (3d Cir. 1973), the voluminous litigation in the civil law as to the definition and operation of a promise presaged that Santobello would generate further litigation "over what constitutes a promise, whether any promise had been made, and the effect of advice or assurance given by the defendant's own counsel." Like most of the other cases in this area, the disposition here depends primarily upon the resolution of the disputed issues of fact, not law, for the essential legal principles in the area have begun plainly to emerge from the appellate courts.

 II. Findings of Fact

 On July 25, 1968, petitioner, Joseph W. Dougherty (Dougherty), was indicted for the armed robbery of a bank in Bucks County in the Eastern District of Pennsylvania. The case was docketed as Crim. No. 23353 and assigned to the calendar of Judge C. William Kraft, Jr. Petitioner retained as defense counsel Samuel Smith, Esq. (Smith), an experienced criminal lawyer. *fn2" At that time petitioner had also been indicted for two bank robberies in California and still faced prosecution for other bank robberies in Massachusetts and New Jersey. *fn3" It was the government's contention that petitioner was a part of an itinerant bank robbery ring. After having a private detective agency investigate the charges, and after a full evaluation of all the evidence, Smith concluded that it was in his client's best interest to consolidate all the charges in this Court and to enter pleas of guilty thereto. Smith also felt it desirable to attempt to obtain a plea bargain with a view to limiting his client's jeopardy to a term certain. The term which Smith and petitioner conceived to be realistic yet considered acceptable was 25 years.

 The case was assigned for trial on February 4, 1969, and the government was ready to proceed. Its witnesses were either present in court or on call. On that morning, Smith approached Jerome R. Richter, Esq., the Assistant U.S. Attorney assigned to the case, to solicit his views as to a 25-year sentence. Smith pointed out that the government would be put to great expense if it had to prove each case against Dougherty in each district where one was pending. He expressed the view that a 25-year sentence was fair to the government and to the defendant; it would mean that Dougherty would serve substantial time, but would still give him a chance to get out and rehabilitate his life. Smith also stated that he desired to present this position to Judge Kraft.

 Richter's response to Smith's query is critical in the wake of Santobello. It was essentially as follows: First, Richter did not object to a conference with Judge Kraft at which Smith could present his views to the Judge and seek a commitment from him. Second, Richter stated that he would not oppose any particular request that Smith might make. Third, in view of the fact that it was then the policy of the United States Attorney's Office in this district not to make recommendations as to sentence, Richter said that he would not make any recommendation as to sentencing. Richter's testimony went on:

Q Do you think that you had a commitment to Mr. Smith not to oppose his -- or not to submit a counter-recommendation or to oppose his twenty-five-year recommendation or, indeed, not to submit any recommendation at all?
A That's a commitment? I do believe that I told Mr. Smith that whatever he worked out with the judge, whatever the judge would agree to do, if he would agree with anything, that was fine with me. I had no objection to whatever the judge would agree to do. I would not voice any objection.
Sam Smith, if I recall correctly, said he would recommend to the judge or tell the judge he would recommend to his client a plea for twenty-five years. My recollection was that there was no problem as far as I was concerned if he wanted to go that route. And I don't believe I ever did raise an objection to it.

 In other words, Richter took the position (consistent with the policy of his office) that sentencing was a matter exclusively within the discretion of the Court, and that the prosecutor's office would not become involved in the matter. *fn4"

 Shortly thereafter, just as counsel were called upon to select a jury, Smith requested a conference with Judge Kraft, who agreed to see counsel in chambers. Smith informed Judge Kraft that he had been discussing plea bargaining with Richter. Smith thereupon related the facts of the case to the judge and expressed the view that a 25-year sentence appeared appropriate. Richter assumed a passive role. Judge Kraft responded that he gave no commitment on sentences, but did remark that 25 years is a "severe sentence" or "a long time." The chambers conference was lengthy, but the foregoing findings cover the matters of substance discussed; the balance of the conference was devoted to reminiscenses and general discussion about the practice of law. We find too that Smith left the conference with confidence (his words were "absolute impression") that Judge Kraft would most likely sentence Dougherty to 25 years.

 Smith's next step after leaving Judge Kraft's chambers was to visit his client in the U.S. Marshal's cellroom. He related to him that Judge Kraft "thought that 25 years was a . . . very long sentence," and represented that "it appeared . . . that he would be sentenced to a period of 25 years." However, Smith also told his client that:

Judge Kraft's philosophy or modus operandi was he gives no guarantees or no promises. He didn't come out and say, "O.K., you got twenty-five years."

 At no time did Smith tell Dougherty that there was a deal or bargain for 25 years.4a In addition to relating the discussion with Judge Kraft, Smith counseled his client. He told him that he thought that the evidence against him was overwhelming and that he thought that a 25-year sentence was fair to all. Doughtery then agreed to enter a plea. We credit Smith's and Dougherty's testimony at the evidentiary hearing that Dougherty would not have entered the plea were it not for the belief that Judge Kraft would impose a 25-year sentence. Although Dougherty testified that Smith counseled ...

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