Final Briefing on September 12, 1973. D.C. Criminal No. 71-195. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Biggs, Kalodner and Adams, Circuit Judges.
This appeal is from a judgment of conviction, based on a plea of guilty. The appellant Jerry has raised questions concerning the propriety of the trial judge's acceptance of his guilty plea and a subsequent refusal to allow the plea to be withdrawn. Because of peculiar procedural occurrences below, this court appointed Amicus Curiae to brief possible issues emanating therefrom.*fn1
On September 28, 1971, the Western Pennsylvania National Bank was robbed. Edgar Saunders was apprehended near the scene of the crime, and some of the stolen money and other evidence was recovered.*fn2 Saunders pleaded guilty. Two days later, Jerry surrendered to the FBI and signed a statement admitting his role as driver of the getaway car for Saunders.*fn3 Jerry was indicted on two counts charging him with offenses relating to bank robbery in violation of 18 U.S.C. § 2113(a) and (d), to which he entered a plea of not guilty. At a November 17, 1971 hearing, Jerry was permitted to change his plea to guilty on Count one, violation of Section 2113(a). Count two, violation of Section 2113(d), was dismissed. On January 6, 1972, Jerry was sentenced to a maximum term (20 years), and for a study pursuant to 18 U.S.C. § 4208(b) and(c).
After the three month commitment study, Jerry returned to court on April 6, 1972 for final sentencing, at which time he informed the court that he wished to withdraw his guilty plea. The district judge ascertained from Jerry the reasons for requesting withdrawal of the plea,*fn4 and the Government requested an opportunity to examine Jerry's allegations and suggested that he be examined under oath and that defense counsel be called as a witness. The court granted defense counsel's motion to withdraw from the case and postponed further action on Jerry's motion to withdraw the plea until a transcript of the entry of plea could be obtained and new defense counsel procured.
On April 27, 1972, the court entered a written order permitting Jerry to withdraw his plea of guilty. Francis P. Massco, Esq., was appointed to represent Jerry.*fn5
The next day, the Government filed motions for continuance of the trial date and reconsideration of the order allowing withdrawal of the guilty plea. The motion for reconsideration, inter alia, alleged that "there was no sworn testimony or competent evidence before the Court . . . on the issue of whether defendant was entitled to withdraw his plea," and that "the orderly administration of criminal justice would be severely prejudiced by defendant's being permitted to withdraw his plea of guilty upon unsworn, undocumented self-serving allegations made without opportunity to the government to explore or rebut them. The government would be prejudiced in that it has lost one count of the indictment, and in that considerable time and effort would be required to attempt to relocate certain key witnesses and reprepare this case for trial." Relief in the nature of a "superseding order denying defendant permission to withdraw his plea of guilty, at least pending hearing and argument on the matter" was requested.
The record does not indicate service of the Government's motion for reconsideration on counsel then representing Jerry, Mr. Massco. Rather, the certificate of service accompanying the motion indicates that the motion was served on Mr. Bowser, the attorney appointed on April 26 and replaced by Mr. Massco on April 27.
On May 1, 1972, the court, acting on the Government's motion for reconsideration, entered an order stating, "Because no hearing had been held, the Order of April 27, 1972 was improvidently issued and is hereby rescinded." The order further scheduled a hearing to be held on May 9 and directed defense counsel to file a formal written motion for withdrawal of the guilty plea.*fn6
At the conclusion of the May 9 hearing, after testimony and argument, the court denied Jerry's motion to withdraw his guilty plea. Jerry subsequently was sentenced to a term of imprisonment for seven years. This appeal followed.
Before proceeding to the dispute surrounding the acceptance of the guilty plea and the subsequent refusal by the district court to allow it to be withdrawn, we first consider issues pertaining to the permissibility of the district court's order rescinding its prior order which had granted Jerry's motion to withdraw his guilty plea.*fn7
A. The Power of the District Court to Rescind an Order
The first question is whether the district court had the power to rescind its order of April 27, 1972 entered through mistake or "improvidence". At common law, the general rule, in criminal as well as civil cases, was that judgments, decrees, and orders were within the control of the court during the term at which they were made, and they could be modified, vacated, or set aside by that court. United States v. Benz, 282 U.S. 304, 75 L. Ed. 354, 51 S. Ct. 113 (1931). John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 66 L. Ed. 475, 42 S. Ct. 196 (1922), affirmed the complete power of a federal court over its interlocutory orders. The Court stated: "If an interlocutory decree be involved, a rehearing may be sought at any time before final decree, provided due diligence be employed and a revision be otherwise consonant with equity." 258 U.S. at 90-91. The Federal Rules of Criminal Procedure, 18 U.S.C., however, make no provision for rehearing and modifying or setting aside an order entered through mistake. Does the absence of this power from the Rules, which "were intended to constitute a comprehensive procedural code for criminal cases in Federal courts,"*fn8 preclude its existence? We think not. F.R. Crim. P. 57(b) provides: "If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute." Nothing in the Rules limits the power of the court to correct mistakes made in its handling of a case so long as the court's jurisdiction continues, i.e., until the entry of judgment. In short, the power to grant relief from erroneous interlocutory orders, exercised in justice and good conscience, has long been recognized as within the plenary power of courts until entry of final judgment and is not inconsistent with any of the Rules.
Although research has not uncovered any cases so construing the criminal rules, nor have we been referred to any particularly helpful criminal cases, decisions under the Federal Rules of Civil Procedure do provide some guidance. The Civil Rules, 28 U.S.C., as originally promulgated, contained a somewhat limited provision for relief from a judgment or order. F.R. Civ. P. 60(b) originally provided:
" Mistake; Inadvertence; Surprise; Excusable Neglect. On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one year, as provided in Section 57 of the Judicial Code, U.S.C., Title 28, § 118, a judgment obtained against a defendant not actually personally notified." (Emphasis added.)
This rule applied to interlocutory as well as final orders*fn9 and did not authorize the court to grant relief from an order entered because of the court's mistake. Despite the fact that Rule 60(b) was generally thought to cover the field,*fn10 the inherent power of courts to set aside and reconsider interlocutory orders was nevertheless held not to be precluded or limited by the rule. In Bucy v. Nevada Construction Co., 125 F.2d 213, 217 (9 Cir. 1942), the court stated that "Rule 60 does not affect, interfere with, or curtail the common-law power of the Federal courts, but . . . the broad power, which was theirs by the common law, to deal with situations where . . . relief should be granted from manifest error, remained inherent in the courts." According to 7 Moore's Federal Practice, para. 60.16, at 86 (1972), "The Ninth Circuit reached a correct result in holding that the district court still had power over the order, since it was interlocutory and the action was still pending before the court." See Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5 Cir. 1970), which, in holding that despite the inapplicability of F.R. Civ. P. 60(b), the district court could at any time prior to final decree rescind an interlocutory order, attested to the continued vitality of the Supreme Court's decision in John Simmons Co. v. Grier Brothers Co., supra. See also, Cohn v. United States, 259 F.2d 371, 376 (6 Cir. 1958), and Nielsen v. Arabian American Oil Co., 206 F.2d 391 (5 Cir. 1953).
We think the principle of the Bucy case is sound whether the case sub judice be civil or criminal: so long as the district court has jurisdiction over the case, it possesses inherent power over interlocutory orders, and can reconsider them when it is consonant with justice to do so. See United States v. Bryson, 16 F.R.D. 431, 435 (N.D. Calif. 1954), aff'd., 238 F.2d 657 (9 Cir. ...