Hastie, Chief Judge, and McLaughlin and Adams, Circuit Judges. McLaughlin, Circuit Judge (dissenting).
This is an appeal from the denial, without a hearing, of a motion, brought under section 2255 of title 28, United States Code, to vacate a sentence allegedly imposed in violation of appellant's constitutional rights.
Appellant Gallarelli was sentenced to three years imprisonment upon his plea of guilty to one count of an indictment charging him with conspiracy in violation of section 371 of title 18, United States Code.*fn1 In his motion to vacate the sentence, he alleged that his Sixth Amendment rights had been violated in that he was not represented by counsel at a critical stage of the proceedings and that he was coerced into pleading guilty by the Assistant United States Attorney, his codefendants and their counsel.*fn2 We consider only his first contention.
On original arraignment in July, 1967, appellant, then represented by counsel, had pleaded not guilty. On March 4, 1968, the day of the events now in question, he and codefendants appeared in court, he without counsel and others with counsel. The court then considered a communication from appellant's attorney, a lawyer from another state, stating that he could not appear and would like to withdraw as counsel and suggesting that new counsel be obtained and substituted. Without acting upon this suggestion, the court permitted a recess, apparently for the dual purpose of permitting the defendants to decide whether their not guilty pleas would be withdrawn and guilty pleas entered and of permitting the appellant to decide whether he would request the appointment of new counsel. It also seems to have been contemplated, as in fact occurred, that the prosecutor, the codefendants and their lawyers, and the appellant and his father, as well as Attorney Papier, would participate in a plea discussion. Mr. Papier was the attorney for one codefendant and was available for appointment to represent the appellant if such an appointment should appear necessary when court reconvened.
While Papier was present throughout the ensuing discussion whether the defendants should now change their pleas to guilty, according to the affidavits submitted by appellant with his motion (which the Government accepts as true for the purposes of this appeal) he took no part in the discussions in appellant's behalf. Indeed, he may have thought it improper, as counsel for a codefendant, to urge a course of action upon the appellant, although such scruples did not deter counsel for other defendants whose clients stood to gain from appellant's entering a guilty plea (again, accepting the affidavits as true). He may also have been concerned because, until the defendants returned to the courtroom, appellant did have other retained counsel of record.
Thus, appellant had no legal guidance or advice during the give and take of the plea discussion. On the other hand, appellant, who seems to have been less culpably involved in the alleged wrong-doing than some of his codefendants, was urged during the conference to plead guilty because the prosecutor would not recommend the acceptance of guilty pleas and the dropping of certain other charges against codefendants unless all of those indicted should plead guilty to one charge.
After the parties returned to the courtroom the court appointed Mr. Papier as appellant's counsel. Almost immediately the appellant's plea of not guilty was withdrawn and a plea of guilty was tendered and accepted. The Government contends that this course of events sufficed to fulfill appellant's constitutional right to counsel. We cannot agree.
There is no indication that Papier conferred with his client after his appointment or before. It may be that, in light of his previous association with this case, his silent acquiescence in the bargain indicates that in his view the choice appellant had made was a reasonable one. However, any such conclusion was reached without consultation. And in an adversary system, it is not the role of counsel merely to acquiesce in such a decision made independently by his client; it is the role of counsel to counsel. The appellant seems to have been involved in some way with wrongdoing that resulted in a charge of conspiracy. The extent of the appellant's complicity and the legal consequences thereof under the complex law of conspiracy, the likelihood of conviction, and any professional prediction of probable punishment if conviction should follow a full trial, were among the matters appropriately to be discussed by the accused and his attorney in order that any decision to plead guilty might be intelligently made. Beyond his own belief that he was innocent or guilty, the accused was faced with a choice of alternative courses for which discussion with and guidance by counsel would necessarily have been helpful and illuminating.*fn3 We have not overlooked the fact that during the plea bargaining appellant's father insisted that his son not plead guilty until the prosecutor agreed to recommend a sentence less than the maximum. But this assistance cannot be equated with the professional judgment and advice a lawyer could have provided after consultation with his client on the facts and charges confronting him.
In the unusual circumstances of this case the appellant was permitted to fall between two stools. His original counsel was on the way out, but technically still representing him, and prospective new counsel was not yet in, and properly silent, at the time when counseling normally would have occurred. And there was no subsequent counseling during the short interval in open court between the appointment of new counsel and the tender of a guilty plea that might have compensated for the absence of professional advice during the preceding plea bargaining.
The situation here was a very unusual one. It is apparent that the court intended that the accused should have the benefit of counsel in connection with any change in his plea. Yet, we cannot escape the conclusion that the court did not accomplish what it intended. The defendant did not in any meaningful sense have the benefit of counsel at the critical stage of his pleading to the indictment and, therefore, his conviction cannot stand. Accord, Lorraine v. Gladden, D.Ore.1966, 261 F. Supp. 909; Anderson v. North Carolina, W.D.N.C. 1963, 221 F. Supp. 930; see also Shupe v. Sigler, D.Neb.1964, 230 F. Supp. 601 (alternative holding).
Finally, the guidance of counsel is so essential a protection for an accused during plea bargaining and in the making of a decision to plead guilty*fn4 that a plea entered without such guidance must be set aside without inquiry whether demonstrable harm resulted in the case in question.
The decision of the district court will be reversed and the cause remanded to permit the appellant to change his plea if he so ...