Moltke v. Gillies

ALLEN, Circuit Judge. The appellant’s petition for writ of habe-as corpus, after full hearing by the District Court, was denied, and this appeal was instituted. The case arises out of the following facts: The appellant, together with 23 others, was indicted for conspiracy with each other and with the German Reich to violate § 32, Title 50 U.S.C., 50 U.S.C.A. § 32. On September 21, 1943, the appellant was arraigned, and under advice of counsel appointed at that time by the court, she stood mute and a plea of not guilty was entered. On October 7, 1943, appellant waived her right to be represented by counsel and changed her plea of not guilty to guilty. The record presents a written waiver, which reads as follows: “I Marianna von Moltke, being the defendant in the above entitled cause, having been advised by the Court of my right to be represented by counsel, and having been asked by the Court whether I desire counsel to be assigned by the Court, do hereby, in open court, voluntarily waive and relinquish my right to be represented by counsel at the trial of this cause.” On August 7, 1944, the appellant filed a motion for leave to withdraw her plea of guilty on the ground that it was made “under circumstances of extreme emotional stress and during a time of extreme mental disturbance, without knowledge of her legal rights and without a thorough understanding of the nature of the offense charged. * * *” The motion was denied, on the ground that the appellant thoroughly understood the nature of the charge and changed her plea after due deliberation, and also because the motion was not filed within the period fixed by Rule 2(4) of the Rules of Criminal Procedure for withdrawal of pleas of guilty. The appellant then filed a petition for a writ of habe114 as corpus, which was dismissed by the District Court upon substantially the same grounds. A majority of the court holds that the judgment is valid and that the application for a writ of habeas corpus was rightly denied. The appellant was unquestionably under mental stress, which would be the case as to countless defendants accused of felony. The record shows, however, that she is extremely intelligent. She came to this country from Germany in 1927, has resided in Detroit since 1930, and for a foreign-born person she exhibits a remarkable command of the English language. Appellant states that she read the indictment. She contends that she did not understand it; but the attorney appointed by the court to represent her at the time of the arraignment, who certainly is a disinterested witness, testified that she and her companion, Mrs. Leonhardt,' also indicted under the same charge, led him to believe that they understood. He stated: “Well, I asked both of them, that is, both at once, whether they understood what this was all about. I believe that is quite similar to the language I used. And one or the other of them said, yes, they did understand, and the other indicated that she, too, understood. And then I asked if they felt that they were guilty or not guilty, and both indicated that they felt they were not guilty. I then rather hurriedly explained to them the advantage of standing mute as against pleading not guilty at that moment, and it was agreed that they would both be stood mute.” Later the attorney reiterated that “they both indicated their understanding,” and both indicated that they were innocent. Subsequently, upon September 25, 1943, appellant was questioned at length about the indictment by two attorneys sent by her husband. These attorneys informed appellant that they would not represent nor advise her. However, they were with her two and a half hours, and the testimony of one of them is as follows.: “Q. Your purpose was to discuss this case with her ? A. That is right. “Q. And you did discuss this case with her? A. That is right. “Q. You read the indictment at. that time? A. Yes, I did; yes. “Q. Did you read it to her, to Mrs. von Moltke? A. I read parts of it. There were certain — she stated her story, and then I wanted to — well, it was a form of cross-examination. There were certain charges in the indictment, and I said, well, how about this? and then she gave me her answer to that. “Q. You examined her insofar as the indictment affected her? A. Yes, sir. “Q. So you covered the charges that were more or less directed toward her? A. Not — I may have, but not fully. I just picked up as I glanced through it. It was quite lengthy. And I glanced through it, and as I found something in there that pertained to her that I thought might be embarrassing to answer, I presented it to her to see what she had to say, and she gave me an answer. ****** “Q. But she did protest her innocence of the charges contained in the indictment? A. That is correct. “Q. So part of the time that you spent with her was devoted to the discussion of this case? A. Well, it was all around the case, and the incidental phases of the case.” The second attorney did not testify in the case, due to illness. It is uncontradicted that these lawyers told appellant if she was guilty, to plead guilty, and if not, not to do so. Appellant’s own .testimony contradicts her statement that she did not understand the charge. On cross-examination she testified as follows: “Q. Mrs. von Moltke, when you were served with the indictment in this case, did you read it? A. I read it. “Q. And after you had read the indictment, did you feel you were innocent of the charges that were stated in the indictment? A. Yes, sir, definitely so. “Q. You did not feel you were guilty of those charges that you read in the indictment? A. I did not feel guilty of those charges in the indictment. “Q. Then you knew what the charges were in the indictment. A. Oh, no, and so far I might explain that to you, I knew— “Q. Just answer my question. [115] “The Court: Answer the question. “A. Yes, I knew, not what the charges were but I knew as I said before that I saw 1 was accused of something of which I was not guilty. That was how I understood that. “Q. Well, you read the indictment. Isn’t that right? A. I read the indictment. “Q. And you felt you were innocent of the charges that were described in that indictment? A. And the overt acts. “Q. And the overt acts ? A. Yes. “Q. Do you recall how many overt acts you read in that indictment, approximately ? A. Five. “O. Now, after you talked to Mr. Collard, did you still feel you were innocent of those charges? A. Yes, sir, because I told Mr. Collard so. * * * * * ❖ “Q. Regardless of what Mr. Collard told you, you still felt you were innocent of the charges in the indictment? A. Yes, sir.” Appellant saw her husband twice a week between the time of arraignment, September 21, 1943, and October 7, 1943, when she withdrew her plea. He had a Ph.D. degree, and, as appellant said, “a certain amount of education in German law.” Fie repeatedly advised appellant not to change her plea, and told her to get a lawyer. She says that she did not know she was entitled to a lawyer; but on the other hand, she stated that Judge Moinet informed her that she was entitled to counsel. Officials of the F. B. I. told her the change of plea was a question for her or her attorney. They also told her that she should in no case plead guilty unless she was guilty. The appellant admits that no promises or threats were made to her. She stated on several occasions that she did not wish to consult a lawyer, but desired to settle the matter herself. On her own initiative she sent the chief assistant district attorney, through an F. B. I. agent, a proposition to plead guilty to the indictment if the district attorney’s office would agree to certain conditions: (1) that she be not deported; (2) that sha be sent to some penitentiary near Detroit, and (3) that the newspaper publicity be stopped, because her husband had been an instructor at Wayne University. The assistant district attorney stated that he had no control over such matters, and could make no such agreement, but would recommend that if she pleaded guilty she be imprisoned near Detroit. When this was communicated to the appellant she indicated that she still desired to plead guilty. When the appellant appeared in court to change her plea, the judge said he could not accept the change of plea because an attorney should be present. The case is sharply differentiated from De Meerleer v. People of State of Michigan, 67 S.Ct. 596, 597. There “At no time was assistance of counsel offered or mentioned” to the seventeen year old defendant. Here the trial court proceeded on the application for change of plea to protect appellant’s rights with meticulous care. Although it was explained that appellant desired to change her plea, the judge was not satisfied with reference to the question of the attorney. Appellant had already been informed by one judge that she was entitled to an attorney appointed by the court, and now a second judge put the specific question to her, whether she was represented by counsel, whether she wished counsel assigned by the court, and she said no. The judge inquired whether the plea was made on the suggestion of any Government agent, and appellant said no. He asked whether any threats or promises had been made to her, and she said no. He inquired whether the indictment had been explained to her, and she admits that she said yes. Her testimony in the habeas corpus proceeding, with reference to change of plea, continues as follows: “Q. Now, then, I ask you, had it been explained to you? A. No, it had not been fully explained to me. “The Court: Well, you read it, didn’t you? You seemed to remember about various paragraphs that cover the Overt Acts, and described them as ‘Overt’ Acts. You had read it, had you not? The Witness : I had, your Honor. “Q. Was there any further conversation between you and the Court? A. Judge Lederle said, ‘And you plead guilty [116] because you feel you are guilty?’ and I said, ‘Yes.’ “Q. At the time you gave that answer, was it true that you were pleading guilty because you knew you were guilty? A. It was not, because I pled guilty to cooperate.” The burden was on the appellant to establish as a matter of fact that she did not competently and intelligently waive the right to have assistance of counsel and that she did not understand what she was doing when she changed her plea. The trial court, who saw the witnesses, held that appellant did not sustain this burden, and a majority of this court agrees with that conclusion. We think the testimony quoted shows that appellant understood the charge, that she understood the consequences of pleading guilty, and. that she waived the right to have counsel after long and deliberate consideration and full understanding that an attorney would be appointed for her without charge, if she desired, and with a complete understanding of what this attorney could do for her. It is not the law that an accused cannot enter a valid plea of guilty without the assistance of counsel. As stated by the Supreme Court in Adams v. United States, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268, 143 A.L.R. 435: “The short of the matter is that an accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury, and so likewise may he competently and intelligently waive his Constitutional right to assistance of count sel. There is nothing in the Constitution to prevent an accused from choosing to have his fate tried before a judge without a jury even though, in deciding what is best for himself, he follows the guidance of his own wisdom and not that of a lawyer.” Also the motion to withdraw the plea was filed far too late, having been filed some ten months after appellant pleaded guilty. While the motion was made before sentence, it was not within the ten-day period fixed by Rule 2(4) of the Rules of Procedure for Pleas of Guilty, 18 U.S.C. following § 688. The harshness of the ten-day rule is emphasized by appellant’s counsel, who urge that appellant has a diabetic child, and necessarily was under great emotional disturbance during the period between arraignment and plea of guilty. A situation equally grave was presented in Swift v. United States, 79 U.S.App.D.C. 387, 148 F.2d 361, in which an appellant who had been advised that the strain of the trial would endanger her life, pleaded guilty to three indictments. A year after imposition of sentence she filed a motion to be permitted to change her plea. Her motion was supported by a physician’s affidavit describing appellant as “suffering ‘from one of the most dangerous heart conditions.’ ” The court held, notwithstanding, that the trial court was without jurisdiction to grant the motion. To the same effect are Hood v. United States, 8 Cir., 152 F.2d 431, 435, and United States v. Achtner, 2 Cir., 144 F.2d 49. The latter decision declared that while this rule may be too harsh, it is the law applicable to cases of this kind. The rule has now been changed [Rule 32(d) of Rules of Criminal Procedure, effective March 21, 1946, 18 U.S.C.A. following section 688], but in its old form it is controlling here. The judgment and sentence are valid, and the judgment of the District Court is affirmed.