United States v. Thomas Lavelle, 306 F.2d 216, 2d Cir. (1962)
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Scribd Government DocsUnited States v. Thomas Lavelle, 306 F.2d 216, 2d Cir. (1962)
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Scribd Government Docs306 F.
2d 216
UNITED STATES of America, Appellee,
v.
Thomas LAVELLE, Appellant.
No. 335, Docket 27373.
United States Court of Appeals Second Circuit.
Argued April 26, 1962.
Decided July 9, 1962.
Leon B. Polsky, New York City (Anthony F. Marra, New York City, on
the brief), for appellant.
Michael J. Gillen, Asst. U.S. Atty. (Joseph P. Hoey, U.S. Atty. for Eastern
District of New York, on the brief), for appellee.
Before SMITH, KAUFMAN and MARSHALL, Circuit Judges.
MARSHALL, Circuit Judge.
Petitioner appeals from an order denying his motion in the nature of a writ of
error coram nobis. In the District Court, petitioner challenged the constitutional
validity of a judgment of conviction rendered in that Court on March 11, 1943.
This conviction subsequently served as the basis for a multiple offender
sentence in the State of New York which petitioner is presently serving. Since
petitioner has completed the full term of service under the federal sentence, the
procedure followed in attacking that judgment is correct. United States v.
Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954).
The facts of this case are relatively uncomplicated. At Lavelle's arraignment
and plea of guilty to two counts of altering and forging a postal money order on
February 23, 1943, and his sentence on March 11, 1943, he was neither
represented by counsel nor advised of his right to have counsel, either retained
or assigned.1 He made no request for counsel, did not object to proceedings
without legal aid, and has neither alleged nor shown his innocence of the
offense charged. In fact, he made a full written confession to postal authorities
prior to his guilty plea.
Lavelle, twenty years old at the time, had at best an eighth grade education and
had served briefly in the armed forces. His father was a policeman. Shortly
before his arrest on the federal charges, he had appeared as a defendant in a
criminal matter in a New York court. At that time he was advised of his right to
counsel in that court, and counsel was assigned at his request.
After two hearings, the District Court denied relief, concluding 'that defendant
understood the charges made against him and the punishment which might be
imposed and that he intelligently and competently waived his right to counsel.'
In reaching this conclusion, the Court relied on Lavelle's experiences in the
state courts, his failure to claim he did not understand the proceedings, and his
failure then and now to attack the confession and deny guilt. Under the
applicable decision law, however, these factors are legally insufficient to
establish a waiver, 2 and we must reverse.
The Sixth Amendment provides, 'In all criminal prosecutions, the accused shall
enjoy the right * * * to have the Assistance of Counsel for his defence.' This
constitutional guarantee may be waived only if the defendant knows of the right
and deliberately and intentionally abandons it. Johnson v. Zerbst, 304 U.S. 458,
58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938). That as a matter of law
there was no such waiver in the present case is conclusively established by our
recent decision in United States v. Tribote,297 F.2d 598 (2 Cir.1961) in which
an extensive opinion was written and the relevant authorities collected. In that
case, counsel had been assigned to the defendant at the time of his plea but was
not present at the sentencing. The defendant, who had had previous experience
in New York state criminal cases, was not advised of his right to counsel in the
federal courts, either retained or assigned, at the sentencing stage. We held that
when a defendant is not so advised, a failure to ask for counsel, to object to
further proceedings, or to inquire as to the right to counsel is insufficient to
show a knowing waiver.3 We further held that Tribote's experience in state
courts and the assignment of counsel for his plea in the very same case did not
justify an inference that he knew of his rights at the sentencing and deliberately
abandoned them. A fortiori, we believe, the evidence in the present case, being
only a failure to object and a previous experience in a state court,4 is
insufficient to justify a finding that Lavelle knowingly waived his rights under
the Sixth Amendment.
No does the failure to show a lack of understanding of the proceedings or to
allege and show innocence justify denial of the relief sought when the evidence
shows a defendant in a federal court was denied his right to counsel. That he
may have understood the nature of the proceedings against him is relevant only
to the question of whether he was prejudiced by the lack of counsel. But the
Supreme Court has said, 'The right to have the assistance of counsel is too
fundamental and absolute to allow courts to indulge in nice calculations as to
the amount of prejudice arising from its denial.' Glasser v. United States, 315
U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942). And see Johnson v. Zerbst,
supra at 468 of 304 U.S. at 1024 of 58 S.Ct. ('If the accused * * * is not
represented by counsel and has not competently and intelligently waived his
constitutional right, the Sixth Amendment stands as a jurisdictional bar to a
valid conviction. * * *') The question, therefore, is whether there was a denial
of the right, not whether the denial resulted in tangible prejudice. It follows a
fortiori that allegations of proof of innocence is unnecessary. United States ex
rel. Farnsworth v. Murphy, 254 F.2d 438 (2 Cir.1958) reversed per curiam 358
U.S. 48, 79 S.Ct. 76, 3 L.Ed.2d 46 (1958); United States ex rel. Savini v.
Jackson, 250 F.2d 349, 352 (2 Cir.1957) ('* * * although he could not deny that
he had committed the offense he did not actually know that he was guilty
either.')5 ] And, indeed, to compel petitioner to assume the burden of proving
his innocence in a collateral proceeding would do little to redress the
deprivation of his constitutional rights which occurred in the proceeding in
which the government had the burden of proving his guilt.
7
Reversed.
It is clear the District Judge believed Lavelle's testimony that he did not have
counsel and was not advised of his right to counsel during the pertinent
proceedings. During the first hearing, the Judge said:
'I am assuming that this Court can take it as a fact that at the time this defendant
was arraigned before me for pleading he had no lawyer.
'I want to have it clear that at the time that we took the plea from this defendant,
and pleas from others, we did not have the procedure which we subsequently
put into effect. Owing to the many, or occasional disturbances of the record
subsequently by defendants, Judge Campbell and myself went over a procedure
which we put into effect not because of this case or any other that had preceded
it, but in order to make the record itself plain, and this procedure was to ask the
witness, or advise the witness that, 'You have the right to have the assistance of
counsel for your defense and if you are too poor to employ counsel the Court
will assign it, and, second, you have a right to a speedy and public trial by an
impartial jury, and, third, you have a right to have the indictment read, or you
have a right to be informed of the nature and cause of each accusation, and,
fourth, you have a right to be confronted with witnesses against you, and, fifth,
you have a right to have compulsory process for obtaining witnesses in your
favor, and sixth, you have a right to have an adjournment to procure counsel,
and seventh, you have a right to call witnesses in your behalf, and, eighth, if
you plead guilty in this cause you may be sentenced by the Court to
imprisonment.' That was the substance of it. Now, that, in substance, for the
past few years, has always been read by the Clerk to the defendants. Prior to
that time and at the time of this defendant's, Lavelle's sentence, we didn't have
that procedure. What we did do, and my own recollection is confirmed by the
witness himself, is, we asked what the plea was-- that is, the Clerk did-- and if
he pleaded builty, the Court said, 'You may be sent to jail.' And that was it. If
there is any dispute about that I shall assume that this defendant at that time
wasn't asked if he had a lawyer or if he wanted a lawyer.'
2
The sole argument advanced by the government in support of the judgment is
that we may not upset factual findings made by a District Court. We hold only
that the facts found below are insufficient as a matter of law to show a knowing
waiver
Under the present rules, trial courts should, as a matter of course, advise
defendants in federal criminal proceedings of their right to counsel. Rule 44,
F.R.Crim.P., 18 U.S.C.A
The notion that the necessary inferences as to Lavelle's knowledge can be
drawn from the fact that his father was a policeman or his short period of
military service seems to us far-fetched
If such an allegation is unnecessary under the looser standards of the due
process clause of the Fourteenth Amendment, it certainly is not required under
the Sixth Amendment itself
