APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. D.C. Criminal No. 113-72
Aldisert, Gibbons and Rosenn, Circuit Judges. Rosenn, Circuit Judge, Concurring.
In Moorhead v. United States, 456 F.2d 992 (3d Cir. 1972), we held that a federal defendant was entitled to an evidentiary hearing on an application pursuant to 28 U.S.C. § 2255 in which it was alleged that his counsel had made an actual out-of-court misrepresentation as to a "proposition" or arrangement relating to the guilty plea. We said that a hearing was mandated irrespective of the facial regularity of the in-court plea proceedings conducted in accordance with Rule 11, F.R. Cr. P. This appeal requires us to decide whether the principles expressed in Moorhead have been diluted by our subsequent per curiam opinion in Masciola v. United States, 469 F.2d 1057, 1059 (3d Cir. 1972), where "the only claim . . . [was] that counsel inaccurately predicted the sentence."
We hold that the Moorhead rule persists with continuing vitality and that the contrary result reached in Masciola was the product of particular facts and limited contentions. We find that in denying a request for an evidentiary hearing in this case, the district court placed too broad an interpretation on Masciola. We vacate the judgment and remand for an evidentiary hearing.
Valenciano and his wife were indicted in the district courts of Florida and New Jersey on narcotics offenses, 21 U.S.C. § 841(a). Following pleas of guilty to Count II of the New Jersey indictment and to the Florida indictment, Rule 20, F.R. Cr. P., Valenciano received sentences of five years on the Florida indictment and two years on the New Jersey indictment, to run consecutively. In addition, he received a special parole term of three years. In his motion filed in the district court, Valenciano contended that his attorney transmitted to him the contents of an agreement entered into "between his attorney, the United States Attorney for the District of New Jersey and the United States Attorney for the District of Miami, Florida." He alleged that the understanding reached before the entry of his plea was that the Florida sentence was to run concurrently with the New Jersey sentence, and that no mention was made of the Special Parole Term which follows incarceration. These same allegations are repeated in his pro se brief.
The Rule 11 plea proceedings were conducted through a Spanish-speaking interpreter.*fn1 Explaining that the interpreter accompanied him during out-of-court conversations with his client, appellant's counsel reported that an "agreement [was] reached between the U.S. Attorney and myself" as to a plea on one New Jersey count and an agreement to the Florida transfer. The record discloses:
MR. WILLIS: Your Honor, as to the indictment out of the Federal District of New Jersey, as to Count 1 of that indictment, I wish the Court to accept a plea of guilty to Count 2, your Honor. I have spoken to the defendant, Roberto Valenciano, concerning Count 2 of the indictment. At that time I brought with me to the West Side Federal Penitentiary Mr. Joseph Martinez, a Certified Court Reporter, to do the interpreting.
I questioned the defendant as to his guilt or innocence as to that charge. He professed his guilt, your Honor. No promises were made to the defendant by myself as to the sentence. I informed him that he could receive the maximum penalty under the law for that count.
Furthermore, I believe, after a thorough discussion, he understands that no one, myself, the United States, can make any promises to him as to what the sentence is to be.
I believe that the plea of guilty, if accepted by the Court, is a voluntary plea based upon the wilingness of the defendant to admit his guilt to the second count, your Honor.
I ask the Court to question the defendant as to his plea of guilty.
Assuming that his counsel's in-court declarations were translated to the appellant, he faces a formidable barrier in any evidentiary hearing to explain silence in the face of representations by his counsel that: "No promises were made to the defendant by myself as to the sentence." Notwithstanding appellant's burden, Moorhead mandates a hearing. As therein stated by Judge Gibbons: "In the posture of the case before us there are several possibilities. Moorhead may be lying about what his attorneys told him. His attorneys may have told him what he alleges, and they may have been lying. His attorneys may have told him what he alleges and may in fact have had some arrangement with the prosecuting ...