(D.C. Civil Action No. 383-72). Appeal from the United States District Court for the District of New Jersey.
Rosenn and Hunter, Circuit Judges and Bechtle, District Judge.
This case raises recurring and important problems of what procedure constitutes compliance with Federal Rule of Criminal Procedure 11 and what circumstances justify the withdrawal of a guilty plea under federal rules and Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1972).
Appellants Paradiso and Bonnacci were indicted on April 16, 1969, along with several others, by a federal grand jury sitting in New Jersey, on a four count indictment charging conspiracy to possess stolen goods and possession of goods stolen from interstate commerce. They were later, on January 20, 1970, indicted by a federal grand jury sitting in the Eastern District of New York for possession of completely different stolen goods, also shipped in interstate commerce.
On April 22, 1970, appellants appeared with counsel before Judge Coolahan in the United States District Court for New Jersey, retracted their original pleas of not guilty, and entered a plea of guilty to count one (the conspiracy count) of the New Jersey charges. They also consented to a transfer under F.R.Cr.P. 20 of the New York indictment and pled guilty to that charge.
Sentencing was scheduled for June 5, 1970, before Judge Whipple. Immediately after the court sentenced Bonnacci to 5 years on each count, the sentences to run consecutively, both appellants requested permission to withdraw their pleas, claiming they were under the impression that their sentences would be concurrent. The court vacated Bonnacci's sentence, deferred sentencing both defendants, and ordered adjournment until June 12, 1970.
After hearing argument on the question whether to permit withdrawal of the pleas, on June 12, 1970, the court denied the defendants' requests and sentenced both as Bonnacci had originally been sentenced. The court specifically stated to defense counsel that he had 120 days in which to petition the court for relief from the sentence. The court dismissed counts 2, 3, and 4 of the New Jersey indictment against both appellants.
On February 28, 1973, appellants filed motions in the district court under 28 U.S.C. § 2255 challenging their sentences and, alternatively, seeking under F.R.Cr.P. 32(d) to withdraw their guilty pleas. They appeal the denial of those motions. We affirm.
Appellants advance several legal theories, each articulating the theme that they are entitled to relief because they were under the impression at the time they pled guilty that they would be given concurrent sentences on the two counts. Essentially three legal bases are offered in support of this claim:
(1) the due process clause;