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STASSI v. UNITED STATES

September 29, 1976

James STASSI, Petitioner,
v.
UNITED STATES of America, Respondent



The opinion of the court was delivered by: STERN

 This is a petition brought pursuant to Title 28 United States Code, § 2255 to vacate a sentence and judgment of conviction entered upon petitioner's plea of guilty to one count of a multiple count indictment. Petitioner and a co-defendant were charged in indictment No. 74-433. Petitioner was named in the first two counts of the indictment, which charged him with conspiring to engage in the business of dealing in firearms without an appropriate license, and with actually having engaged in such an unlicensed business in firearms.

 On April 21, 1975, the co-defendant retracted his plea of not guilty and entered a plea of guilty to one count of the indictment. On June 2, 1975, the peremptory trial date, with a jury panel in the courtroom, the defendant Stassi retracted his plea of not guilty to the indictment and entered a plea of guilty to the conspiracy count. A transcript of the entire Rule 11 proceeding is attached as Appendix "A" to this opinion. Certain relevant portions are noted here:

 
THE COURT: This crime is punishable by what? Five years' imprisonment and a fine of $10,000 or both?
 
MR. RUSSELL: [Counsel for the defendant] Yes.
 
THE COURT: Have you told that to your client?
 
MR. RUSSELL: Yes.
 
THE COURT: Do you know of any promise or any inducement which has been made or offered to your client to induce him to plead guilty here this morning?
 
MR. RUSSELL: The only statement -- I won't call it a promise, your Honor -- would be the fact that the government has indicated to me that they would move upon sentencing date to dismiss Count II of this indictment.
 
THE COURT: Is that the only other count that he is named in?
 
MR. RUSSELL: Yes, sir.
 
MR. DEICHERT: Yes, sir.
 
THE COURT: Well, has anybody given either you or your client any indication of what sentence this Court would impose if your client pled guilty to this Count I?
 
MR. RUSSELL: No mention of sentencing at all, your Honor.
 
THE COURT: Does that accord with your understanding, Mr. Deichert?
 
MR. DEICHERT: [the prosecutor] Yes, sir, it is.
 
DEFENDANT STASSI: Yes.
 
THE COURT: He says you want to plead guilty? Is that so?
 
DEFENDANT STASSI: Yes.
 
THE COURT: Well, before accepting your plea, Mr. Stassi, I am going to place you under oath and ask you certain questions. I want you to understand that if you do you [sic] not tell me the truth in response to my questions while you are under oath, you will be committing the separate crime of perjury.
 
DEFENDANT STASSI: Yes.
 
THE COURT: Swear Mr. Stassi, please.
 
* * *
 
Q [the Court] Now, as I have told you or as you have heard, this is a crime punishable by up to five years' imprisonment or $10,000 in fines or both. Did you know that?
 
A [the defendant] Yes, sir.
 
Q Now, has anybody given you any indication or promise that if you plead guilty here today I would impose anything less than the maximum sentence upon you?
 
A There was no promises made of any sort.
 
Q Anybody give you any indication as to what my sentence might be?
 
A No. There is no indication of any sentencing.
 
Q I tell you this, Mr. Stassi: I have never discussed your case with anyone. As I sit here now I don't know what sentence I would give you and will not know until I have seen a presentence report. I tell you, further, that if anyone has given you any indication of what sentence I would give you if you pled guilty here today they are lying to you and deceiving you. Do you understand me?
 
A Yes, sir.
 
Q Do you believe me?
 
A I believe you.
 
Q I tell you now that if anyone has given you any such promise or indication, tell me now and I will listen to you. But if you wait until after I pronounce sentence and if you are dissatisfied with my sentence and try to tell me of some promise or indication or inducement, I won't listen to you then. Do you understand me?
 
A Yes, sir.
 
Q Do you have anything to tell me in this regard?
 
A No.

 (Tr. 6/2/76, at 3-4, 7-8)

 On June 23, 1975, after the preparation of a presentence report, this Court sentenced the petitioner to a term of four years' imprisonment and a $10,000 fine. Upon petitioner's subsequent application for reduction or modification of sentence, this Court, on September 29, 1975, ordered that the sentence be served under conditions of early parole eligibility, pursuant to the then Title 18 United States Code, § 4208(a)(2). The Court received two subsequent pro se communications from the petitioner, both of which are reproduced in the margin as Appendix "B." In the first letter, dated December 18, 1975, the petitioner discussed his prospects for obtaining release on parole following his first Parole Board hearing. This letter was referred to his attorney for any action deemed appropriate. The second letter, dated January 20, 1976, requested that the Court recommend that petitioner be incarcerated for the remainder of his term in Allenwood Camp. This letter was answered directly by the Court. None of petitioner's three communications with the Court, the first through counsel and the latter two pro se, made any reference whatsoever to unfulfilled sentencing expectations.

 In February 1976, apparently immediately after receiving this Court's reply to his letter of January 20, 1976, petitioner filed the instant proceeding. In his moving papers he alleged (a) that he was never informed of the possibility that a fine of $10,000 might be imposed; and (b) that ". . . the government did not live up to it's plea bargain arrangements, which was [sic] a promise of a sentence not to exceed two (2) years". In support of the latter contention, raised for the first time, petitioner submitted an affidavit which is reproduced here in its entirety:

 AFFIDAVIT

 JAMES L. STASSI, being duly sworn upon his oath, deposes and says:

 1. In November of 1974, I went to the Sixth Floor of the Federal Building in Newark, New Jersey with my attorney, John Russell, Esq. We went there to listen to tapes which the government was going to use at my trial.

 2. During the time I was there, Mr. Russell met with Mr. Deichert who was the government attorney in charge of my case and they had a discussion about a plea of guilty by me. After Mr. Russell talked to Mr. Deichert, he told me that if I pleaded guilty I would receive no more than two years in jail. Mr. Deichert then walked towards me and I stated "I want a suspended sentence and no fine." Mr. Deichert stated, "Judge Stern won't go for a suspended sentence but he will agree on the two years."

 3. Again on June 2, 1975, the date I was supposed to go on trial, I talked with Mr. Russell and again he told me in the third floor hallway, outside Federal Courtroom No. 1, that if I pleaded guilty, I would get no more than two years. Mr. Deichert also told me that I would get a two-year sentence if I pleaded guilty on June 2, 1975. This was told to me by Mr. Deichert outside Judge Stern's courtroom.

 4. At that time, Mr. Russell told me that I should say nothing about the promise that I would receive no more than the two years as my sentence. He told me to say "no promises" when Judge Stern questioned me about promises. I followed Mr. Russell's advice and told Judge Stern that there were no promises when he asked me about promises.

 5. I am not guilty of this charge and I was persuaded to say that I was guilty by Mr. Russell's promises that I would get no more than two years and maybe less than two years. I was also persuaded to plead guilty by Mr. Deichert making the same promises to me.

 (s) James L. Stassi / JAMES L. STASSI

 In response, the attorney for the United States has submitted his own affidavit, in which he avers as follows:

 
2. The Government's position regarding the matter of a guilty plea was that sentencing was a matter entirely within the province of the Court. At no time during the pendency of the charges against James Stassi did I ever make any agreements, promises, representations or predictions to either Mr. Stassi or his counsel, John P. Russell, concerning the type of sentence which might be imposed by the Court if the defendant Stassi pled guilty to any charges.

 (Affidavit of James Deichert, 3/29/76).

 Petitioner requests an evidentiary hearing in the instant proceeding.

 Title 28 United States Code, § 2255 requires that a hearing be held unless the files and records of the case conclusively establish that a petitioner is entitled to no relief. It is the holding of this Court that the files and records of the instant case establish that the petitioner's second claim is as devoid of merit as his first one. Accordingly the request for an evidentiary hearing is denied, as is the motion to vacate his sentence and conviction.

 The first allegation made by the petitioner, i.e., that he was not informed that a fine of $10,000 might accompany a conviction, is frivolous. The transcript of the Rule 11 proceeding reveals that petitioner was adequately informed of the potential consequences of a plea of guilty. (See Tr. 6/2/75, at 3, 7) The second allegation made by the petitioner is equally without basis. It is of course true that the voluntariness of a plea of guilty may be impugned by threats or promises made by government officials with respect to sentence. See, e.g., Machibroda v. United States, 368 U.S. 487, 489-490, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962). But the factual assertions contained in petitioner's affidavit and his moving papers may, under the circumstances of this case, be rejected as conclusively foreclosed by the files and records of the case. Petitioner himself explicitly and fully contradicted each and every one of his assertions, under oath, at the time of the Rule 11 proceeding. The record is replete with prior inconsistent statements made by petitioner in the form of earlier applications for reduction and/or modification of sentence, none of which made any reference whatsoever to the claim he now so belatedly seeks to press. His accompanying assertion of innocence is wholly incredible in light of the overwhelming evidence of his guilt brought out at the Rule 11 proceeding from his own mouth and from the files of the United States, which were prepared for trial. (See Tr. 6/2/75, at 8-23) This Court has previously held in Martinez v. United States, 411 F. Supp. 1352 (D.N.J.), aff'd by judgment order 547 F.2d 1162 (3d Cir. 1976), that under certain circumstances the files and records of a case may be sufficient to rebut a later assertion by a dissatisfied petitioner that a plea was entered into in reliance upon a promise of leniency from the government. This is just such a case. Because the files and records of this case preclude the possibility that petitioner could establish the factual premise upon which any claim for relief would necessarily be predicated; and since any such reliance on the covert words of others, even if proven, would not be reasonable or justified in the teeth of this Court's plain and unambiguous warnings, relief will be denied.

 Furthermore, this opinion will be referred to the Office of the United States Attorney for whatever action is deemed appropriate in light of the contradictory positions espoused by petitioner under oath.

 ORDER

 In accordance with the opinion of this Court filed this date,

 It is on this 29th day of September, 1976,

 ORDERED that petitioner's request for an evidentiary hearing be, and it hereby is, denied; and it is further

 ORDERED that petitioner's motion to vacate sentence be, and it hereby is denied.

 APPENDIX "A"

 THE COURT: I'll hear you, Mr. Russell.

 MR. RUSSELL: Judge Stern, on behalf of the defendant James Stassi, I would at this time formally apply to your Honor to withdraw our previous plea of not guilty to the first count of Indictment 74-433 and enter a plea of guilty to Count I of that indictment charging the defendant with the crime of conspiracy.

 Judge Stern, I've gone over this matter with Mr. Stassi. I've advised him of his rights with respect to these charges contained in this case. I told him if he wanted to he could have this matter tried before this Court and a jury, place the burden of proving these charges upon the government to establish his guilt beyond a reasonable doubt. He indicated to me that he understood that and being informed of that he still wanted to enter a plea of guilty because in fact he told me that he was guilty of these charges; namely, conspiracy.

 THE COURT: You understand I'm prepared to afford him a trial this morning? It has been called for trial. I have a panel of prospective jurors waiting. We can readily afford you a trial. In fact, the only reason it is now a quarter to 11:00 -- I planned to pick a jury at 10:00 -- was because you indicated that your client wanted to discuss this matter with you.

 MR. RUSSELL: That's right.

 THE COURT: But we will gladly afford you that trial this morning, Mr. Stassi, if that is your wish instead. I want you to understand that.

 MR. RUSSELL: Do you understand that, Mr. Stassi?

 THE COURT: This crime is punishable by what? Five years' imprisonment and a fine of $10,000 or both?

 MR. RUSSELL: Yes.

 MR. RUSSELL: Yes.

 THE COURT: Do you know of any promise or any inducement which has been made or offered to your client to induce him to plead guilty here this morning?

 MR. RUSSELL: The only statement -- I won't call it a promise, your Honor -- would be the fact that the government has indicated to me that they would move upon sentencing date to dismiss Count II of this indictment.

 THE COURT: Is that the only other count that he is named in?

 MR. RUSSELL: Yes, sir.

 MR. DEICHERT: Yes, sir.

 THE COURT: Well, has anybody given either you or your client any indication of what sentence this Court would impose if your client pled guilty to this Count I?

 MR. RUSSELL: No mention of sentencing at all, your Honor.

 THE COURT: Does that accord with your understanding, Mr. Deichert?

 MR. DEICHERT: Yes, sir, it is.

 THE COURT: Mr. Stassi, have you heard your attorney?

 DEFENDANT STASSI: Yes.

 THE COURT: He says you want to plead guilty? Is that so?

 DEFENDANT STASSI: Yes.

 THE COURT: Well, before accepting your plea, Mr. Stassi, I am going to place you under oath and ask you certain questions. I want you to understand that if you do you not tell me the truth in response to my questions while you are under oath, you will be committing the separate crime of perjury.

 DEFENDANT STASSI: Yes.

 THE COURT: Swear Mr. Stassi, please.

 JAMES L. STASSI, the defendant, being first duly sworn, testified as follows:

 EXAMINATION BY THE COURT:

  Q Mr. Stassi, your lawyer says that you want to plead guilty to Count I of this indictment. Is that so?

  A Yes.

  Q Have you been over this indictment with your attorney?

  A Yes.

  Q Have you discussed with him any possible defenses that you might have to the charges contained in this indictment?

  A Yes.

  Q Sir, are you satisfied with the legal representation that Mr. Russell has given to you in this case?

  A Yes. Very much satisfied with Mr. Russell.

  Q Are you presently taking any drugs or medication?

  A No.

  Q Do you understand everything that is being said in this courtroom?

  A Yes, your Honor.

  Q Now, Mr. Stassi, you understand that you are accused in this indictment of certain crimes but the indictment is only an accusation. As you stand here now before this Court you are presumed to be innocent of these charges. Do you understand that?

  A Yes.

  Q As a matter of fact, the only way that you can be convicted of these charges is for the government after a trial to convince all twelve jurors by proof beyond a reasonable doubt that you are guilty, did you know that?

  A Yes.

  Q At such a trial the government would have to call witnesses and introduce evidence. Your attorney, Mr. Russell, could cross-examine any such witnesses and challenge any such evidence. In addition thereto, you would have the right through your attorney to introduce evidence in your own behalf. You, yourself, could take the stand and testify, if you chose to. And, on the other hand, if you chose not to I would tell the jury that they could take no adverse inference to you from your silence. Do you understand that?

  Q After such a trial, Mr. Stassi, if even one juror had a reasonable doubt concerning your guilt you could not be convicted. Did you know that?

  A Yes.

  Q On the other hand, sir, if you plead guilty today all those important rights will be gone. Do you know that?

  A Yes, sir.

  Q You will no longer be presumed to be innocent. You will no longer --

  A Yes, I understand.

  Q -- be entitled to a trial at which time the government would have to prove your guilt beyond a reasonable doubt. You will be conclusively found to be guilty out of your own mouth, out of your own confession. Do you understand that?

  A Yes.

  Q Is it still your desire to plead guilty?

  A Yes, sir, it is.

  Q Mr. Stassi, if I accept your plea of guilty, because you will thereby be convicted from your own mouth, do you understand that there will be nothing left to be done in your case except for this ...


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