On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Criminal Nos. 87-167 and 88-72
BEFORE: SEITZ, SLOVITER and GREENBERG, Circuit Judges
GREENBERG, Circuit Judge.
Defendant Peter Huff was indicted in the Western District of Pennsylvania in indictments 87-167 and 88-72. Indictment 87-167 was for a robbery on July 30, 1987, at the Summit Bank at Salix, Cambria County, and charged him with bank robbery, 18 U.S.C. § 2113(a), count one, assault with a dangerous weapon during the robbery, 18 U.S.C. § 2113(d), count two, and use of a handgun during the robbery, 18 U.S.C. § 924(c), count three. Indictment 88-72 was for a robbery at the Peoples Bank and Trust Company, at Jerome, Somerset County, and charged him with the same three offenses in the same sequence.
Huff was arrested on the charges in Youngstown, Ohio, on Friday, February 19, 1988, and, prior to appearance in any court on the charges, gave oral and written inculpatory statements. He subsequently pleaded not guilty to all charges. Thereafter, in each case he filed a motion to suppress his statements. He alleged that he was arrested on February 19, 1988, at 11:45 A.M. by FBI agents in Youngstown and gave an oral statement. He then requested an attorney to whom he spoke on February 19, 1988 at 1:40 p.m. On Monday, February 22, 1988, he signed written statements at 8:30 a.m. He was arraigned and made his initial appearance before a magistrate on February 22, 1988, at 11:00 a.m. In his motions, he asserted that the statements should be suppressed because his constitutional rights had been infringed when they were taken and, in this regard, he cited the delay between his arrest and arraignment.
Separate hearings were held in the proceedings under each indictment on the motions to suppress, even though the same statements were involved. On May 3, 1988, and May 5, 1988, an evidentiary hearing, at which the government and Huff himself presented witnesses, was held on indictment 87-167 before Judge Simmons who reserved decision on the motion. On June 10, 1988, a suppression hearing was held on indictment 88-72 before Judge Diamond who on that day entered an order denying the application for suppression.
On June 20, 1988, pursuant to a plea agreement, Huff, represented by an attorney, appeared before Judge Diamond in both cases and entered a plea of guilty to the second count of both indictments. The plea agreement provided that the other counts of both indictments would be dismissed and the government would not oppose a request by Huff for concurrent sentences. Judge Diamond explained to Huff that by entering a plea of guilty he would be giving up "important and significant constitutional and other legal rights" including, among others, the right "to challenge prior to trial any evidence that the government might have obtained during the course of an arrest" and "that would include any statements that you may have given to the authorities." Huff acknowledged his understanding of that. The judge also explained that if, upon reading the presentence report, he concluded that he could not sentence Huff to concurrent sentences, Huff would have the opportunity to withdraw his plea but that "under any other circumstances you will not be permitted to withdraw your plea." Huff acknowledged his understanding of that as well.
The judge carefully explained the possible sentences for the offenses and described the sentencing guidelines to Huff, as they were going to be applicable to any sentence under indictment 88-72, though they would not apply under indictment 87-167, a pre-guidelines case. He also told Huff that under the sentencing guidelines parole had been abolished so that "there will be no parole for any sentence under the guidelines."
During the plea proceedings, the Assistant United States Attorney described each robbery and Huff's participation in it. These facts included the elements of the counts to which Huff was pleading guilty. In each instance Huff acknowledged that the government's version of the events, including the weapons aspects, was accurate. Later, however, Huff said he did not have a gun at the Summit Bank. The judge then painstakingly reviewed the evidence and said that there was a sufficient factual basis for the plea notwithstanding Huff's denial that he had the gun. He did, however, say that if Huff wanted to withdraw the guilty plea on indictment 87-167 he could then do so. Huff's attorney then said: "your honor, Mr. Huff has indicated to me that knowing those options, he'll go forth with the tendering of the plea." Judge Diamond then directly addressed Huff on the issue, who confirmed that it was his desire to adhere to the guilty pleas.
At the end of the proceedings, when the Assistant United States Attorney indicated that the motion to suppress was still pending before Judge Simmons under indictment 87-167, Huff's attorney, with Huff's personal approval, withdrew it. The judge then said: "You understand that there would be no other reconsideration of those by any other judge at this point?" Huff answered "Yes."
On September 16, 1988, Huff appeared for sentencing. At that time his attorney indicated that he had reviewed the presentence report with Huff and he had no corrections, deletions or modifications, but that Huff wished to withdraw the pleas and go to trial. He indicated that Huff wanted to litigate the issue of the voluntariness of his statements. The judge said that he would postpone the sentencing and that Huff should file a written motion to withdraw the pleas.
On September 28, 1988, Huff filed the written motion claiming that "he is legally not guilty" and indicated that he asserted "his legal innocence." He further set forth that he wanted "full litigation" of the issue of the voluntariness of his statements and "was not aware at the time of the change of plea proceeding that further and full litigation of the issue of the voluntariness of his statements would be precluded by his pleas of guilty" and that he "was not aware when he pleaded guilty that the Sentencing Guidelines do not provide for parole and defendant was not fully aware of the extent of his exposure to possible sentences under the Guidelines." The government filed a written response opposing the motion.
Judge Diamond denied the motion in a memorandum opinion of October 11, 1988. He perceived there was no "fair and just reason" to allow Huff to withdraw his plea and said that the record showed that Huff was fully advised as to all aspects of his change of plea to guilty and understood what he was doing and acted voluntarily. The judge further pointed out that Huff was not asserting his innocence. He stated that: "indeed, after his admissions of guilt under oath during the plea colloquy and the overwhelming evidence including bank surveillance photographs depicting him committing at least one of the bank robberies to which he has pled guilty, and the summary of the testimony of named eyewitnesses to both crimes furnished by the government at the plea hearing, it is difficult to understand how he could do so." He noted that Huff claimed to be not "legally guilty" but this contention was not an assertion of innocence. He ...