The opinion of the court was delivered by: MARSH
On May 23, 1977, John A. Beto, changed his plea from not guilty to guilty of forging an endorsement on the back of a United States check in violation of 18 U.S.C. § 495. On August 24, 1977, he was sentenced to a prison term of five years with eligibility for parole at the discretion of the parole board. Beto has filed a motion to vacate that sentence pursuant to 28 U.S.C. § 2255 alleging that his conviction was a violation of the Double Jeopardy Clause of the Fifth Amendment; that he was coerced into pleading guilty by his attorney; and that he was under the influence of alcohol at the time of his guilty plea. Beto has submitted affidavits stating that he was intoxicated on August 24, 1977, which in fact was the date of his sentencing. There was no support by affidavits that Beto was intoxicated at the time of his guilty plea on May 23, 1977.
In a complaint sworn before a magistrate on October 28, 1976, John Beto was charged with knowingly forging the name of the payee, Harry L. Quinn, on the back of a government check dated April 3, 1976. With the assistance of Mrs. Trembulak, Beto allegedly had represented himself to be the payee and had passed the check to Edward P. Tremel. Beto was arrested, and a preliminary hearing was held on November 9, 1976, at which time Beto was represented by a federal public defender. On December 7, 1976, the magistrate dismissed the complaint upon a motion by the government.
An indictment filed March 24, 1977, charged John Beto with forging three government checks between December 3, 1975 and April 5, 1976, and with cashing one of the checks. Count 3 of the indictment related to the forged endorsement on the April 3 check payable to Quinn. Contrary to defendant's argument, this indictment did not cause him to go to trial for a second time on a charge of which he had already been acquitted. The discharge of the complaint by the magistrate did not preclude the defendant's subsequent indictment by the grand jury on the same charge. Rule 5.1(b), Fed.R.Crim.P. See United States v. Gogarty, 533 F.2d 93, 95 (2d Cir. 1976); United States v. Grimes, 426 F.2d 706, 708 (5th Cir. 1970).
In support of his motion, Beto has submitted affidavits from Mrs. Opal Trembulak, his common law wife, and from four persons identified as neighbors stating that "on or about the day of August 24th, 1977" they observed John Beto to be under the influence of alcohol. Each affiant continues:
"I further acknowledge that Mr. Beto was summoned to the (court) on this same date he was induced to enter a plea of Guilty to a Criminal Charge and as a viable witness to this action avers that Mr. John Beto was not Qualified to defend his person."
These affiants are obviously mistaken since Beto pleaded guilty on May 23, 1977.
From the observation of this court on May 23, 1977, and on August 24, 1977, Mr. Beto appeared, acted and spoke in a sober manner; there was no outward evidence of inebriation.
When defendant Beto appeared before the court on May 23, 1977, to change his plea to guilty on Count 3, he completed the court's plea form and answered questions for the court indicating that he understood the proceedings and that he had discussed his change of plea with his attorney. Specifically, Beto gave the following answers to questions on the plea form:
"Guilty to the third count of the indictment."
26. Has any promise, representation, agreement or threat been made to you by any person, including your lawyer, to induce you to plead guilty prior to the entry of this plea?
"Dismissal of others counts in ...