Machibroda v. United States

PETITIONER:Machibroda
RESPONDENT:United States
LOCATION:U.S. District Court for the District of Massachusetts

DOCKET NO.: 69
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 368 US 487 (1962)
ARGUED: Dec 05, 1961
DECIDED: Feb 19, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – December 05, 1961 in Machibroda v. United States

Earl Warren:

Number 69, John Machibroda, Petitioner, versus United States.

Mr. Reitz.

Curtis R. Reitz:

If the Court please.

Petitioner in this case is also seeking collateral relief from conviction in sentence, in this case for two bank robberies.

The convictions rest upon pleas of guilty entered on February 24th, 1956 in the record at page 40, sentence was imposed on May 23rd, 1956.

The sentence is aggregating on four accounts for the two bank robberies 40 years.

This is on the record at page 42 and 43.

This present proceeding was instituted on February 9th, 1959 as a motion to vacate sentences under Section 2255 of judicial code.

The District Court for the Northern District of Ohio summarily denied the motion and the Court of Appeals for the Sixth Circuit affirmed in a brief per curiam opinion.

One of the issues in this case may I say at the outset is identical to the issue in Hill versus United States.

It’s argued namely a violation of Federal Criminal Rule 32 (a).

I don’t think there’s any necessity for me to say more on that rule beyond this. What is at stake in this rule is nothing less than the right of a defendant to be heard and there’s nothing more fundamental to our concept with due process and the right for a defendant to be heard.

In the context of the sentencing hearing, Rule 32 (a) imposes on the judge the obligation to make that right effective.

Charles E. Whittaker:

(Inaudible)

Curtis R. Reitz:

Yes Your Honor.

Charles E. Whittaker:

(Inaudible)

Curtis R. Reitz:

His counsel was asked to speak and did not Your Honor.

He declined to say anything.

It was —

Charles E. Whittaker:

(Inaudible)

Curtis R. Reitz:

I don’t believe so Your Honor.

The Rule 32 (a) to the extent that it operates determined by this Court in the Green case operates to provide the defendant himself personally, not to this counsel, personally the right to speak and this Court virtually unanimous to Mr. Justice Stewart only accepting took that position in the Green case.

Charles E. Whittaker:

(Inaudible)

Curtis R. Reitz:

That’s right.

And what I say with respect to Rule 32 (a) is the same as I would say under Rule 11th or Rule 44.

These do not restate constitutional rights.

There is no constitutional right that I know of that could be stated in terms of an obligation on the Court to initiate some proceeding.

What the rules do is they extend and make more effective that underlying constitutional rights by imposing on the judge, not the defendant and not his lawyer the obligation to undertake to vindicate.

The second issue in this case is far more important.

May I say Mr. Justice Whittaker before it pass it, that the Government, Mrs. Cooper has indicated concedes that 32 (a) has violated in this case as well.

Curtis R. Reitz:

A more fundamental question raised by petitioner, Machibroda however concerns the validity of its underlying conviction.

As I’ve indicatively these were obtained based upon guilty pleas and by his motion under Section 2255, petitioner contends that his pleas were wrongfully induced by promises made by the prosecutor, the Assistant United States Attorney and that this was further compounded by a failure of the judge to comply with a mandatory requirements of Rule 11 of the Rules of Criminal Procedure.

I stress at the outset that there was no hearing in this case.

The United States filed a response, until the response was attached an affidavit of the Assistant United States Attorney who was charged with having — made the bargain with the prisoner but there has been as yet no hearing.

And the only real issue in this case is whether the prisoner is entitled to a hearing on these very serious allegations.

Since there was no hearing, I believe the Government concedes that the allegations must be assumed to be true for purposes of this proceeding unless, in the words of a statute which is on the top of page 4 of petitioner’s brief, unless the motion and the files and records of the case, conclusively show that the prisoner is entitled to no relief, the Court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact in conclusions of law with respect thereto.

The court below has determined in the language of the statute that the files and records of this case conclusively show that the petitioner is entitled to no relief and this position the Government supports in this Court.

The motion is found in the record beginning on page 13, and there is of course the most crucial document in the case.

The most pertinent allegations concerning the bargain are on pages 14 and 15.

In sum, without reading this now, the petitioner alleges that there were three relevant conversations between the Assistant United States Attorney and himself.

The first occurred in the county jail where he was being detained on or about February 21st, 1956 which was three days before his arraignment.

The prosecutor promised petitioner that if he entered pleas of guilty, he would receive a total sentence of 20 years.

The promise was set to be made with the authority of the United States Attorney and was implied to be agreeable to the judge.

It was a bargain that was virtually ironclad.

Further, petitioner was expressly cautioned not to tell his lawyer of the bargain.

The lawyer was taken out of the arrangements.

The second conversations took place in the county jail on May 22nd, 1956 which was the day before sentencing.

At that time, the prosecutor reported the petitioner that the judge was “vexed”, because petitioner had testified in behalf of a codefendant who had stood trial in these proceedings.

The prosecutor indicated there might be some trouble with respect to the agreement that the sentence was not to exceed a total of 20 years.

When petitioner protested that he was going to bring the whole thing to the attention of the judge in open court, the prosecutor replied there’s nothing to worry about.

If the court imposes more than a 20 year sentence, the United States Attorney would move to have a sentence reduced within 60 days, an authorized procedure and the petitioner was further told threateningly that if he “insisted on making a scene” his difficulty would be compounded with further charges.

Third conversation took place immediately after sentence had been announced on May 23rd.

Again, the prosecutor promised that as soon as the judge “cooled off”, the United States Attorney would have a sentence reduced to 20 years and the prisoner was taken off to begin to serve his sentence.

The motion further alleges that subsequent to his incarceration, he sent two letters to the Judge and two letters to the Attorney General protesting against the failure of the Government and the Court to keep the bargain.

He received no reply to either of these letters.

Now this is in general the substance of the allegations of the motion.

What has happened in effect is that the Government and the court below has tried this motion virtually received evidence, in fact, received evidence without having allowed the prisoner even the basic rights of a hearing.

The Government concedes, I believe it’s a concession.

It’s hard to read but there is nothing in the files and records of this case which is inconsistent with the motion on behalf of the petitioner.

And this is — it is in itself deemed I suppose his basic rights.

Curtis R. Reitz:

He is pictured as a prisoner who had deliberately concocted a story, tailor-made so-called to fit the facts of this case and explain any apparent inconsistencies by some facts not in the record.

This voice of the prisoner makes him I suppose, a psychopathic liar who cannot be believed, no matter what he says even though I take that the Government concedes there’s not a single fact in the record which tends to contradict the story of the bargain as he alleges.

What does appear in the first instance is the affidavit as I mentioned of the Assistant United States Attorney.

This was filed as an appendix or in appended to, the response of United States and is relied upon heavily by the Government in their brief and — in their brief and this Court.

I cannot find one single justifiable reason for that affidavit to be in this case.

It is nothing more or less an attempt to try the case without having a hearing.

If as the Government must do, they conceived the facts as alleged by the motion for purposes of summary disposition, the affidavit is at no point, the Government says the affidavit is here simply to show that the Government does not agree with the fact alleged in the motion which would be perfectly obvious without the affidavit.

John M. Harlan II:

Oh, I suppose an understandable thing the United States Attorney is — of this is one that has something on the file, isn’t it?

Whether the court pays any attention to it or not, that’s a human natural thing, isn’t it?

Curtis R. Reitz:

From Mr. Condon’s standpoint, I can understand that.

From the standpoint of the court using it, referring to it in the opinion and arguing to this Court I don’t see the relevance.

I see no relevance at all.

Charles E. Whittaker:

Did the court really rely on it, the rule?

Curtis R. Reitz:

Well, the Government says and they’re technically quite accurate that the court below did not specifically rely on it.

However, in this opinion of the Court which appears on the record on the beginning on page 47th, the Court does have a sentence which is unusual for a simple passing reference on page 49, the three quarters of the way down under oath, Clarence M. Condon, former Assistant United States Attorney empathically denied these allegations.

That’s a stronger statement that I would expect from a simple recitation of fact but there is nothing in here to indicate that the Court expressly relied upon that affidavit, that’s true.

Now the second piece of evidence that is in here, it’s nothing more or less than testimony of the District Court.

The Judge says on the bottom of page 49, in reference to the letters which the prisoner said he sent from prison protesting the breach of faith on the part of the prosecutor in court, the Judge says this Court did not receive two letters from the defendant.

That is nothing more or less in the statement by a witness.

As Justice Frankfurter said in the Gibson case, human memory is a very treacherous thing and that’s particularly true when you don’t recall something having happened.

The judge has dismissed these allegations as to protests filed contemporaneous with the man’s entering into prison by saying, “I don’t remember receiving them.”

Now, even if it’s true that the judge did not receive the letters even that would not prove that the letters had not been sent.

The prisoner alleges that they were posted.

He cannot of course allege that they were received.

Whether they ever got to the courthouse, whether they were handled by members of the clerk staff and the court no one really knows at this point.

There’s been no hearing on the allegations.

Now the second bit of evidence which the court does formerly use is a letter allegedly received by the court some six months after the prisoner got to prison.

In this letter, the prisoner in a very neat tone asked for clemency.

Now the Court on page 40 — on page 50, describes this as evidence which indeed it is.

There has been no showing that this letter is authentic.

Curtis R. Reitz:

There has been no introduction of this letter into the files and workers of this case.

It’s simply a letter, a private letter sent by a prisoner to a judge.

The letter was bad enough but the inference from which the judge draws from this letter is even worse.

The judge says that the inference from this letter shows the defendant’s allegations must be false because he’s asking for clemency rather than protesting the breach of faith.

This inference I submit the defendant is entitled under all element reconceptions of due process to rebut.

The prisoner recall has allege that he sent two letters protesting a breach of faith from the part of the court shortly after being imprisoned.

It is not certainly unreasonable to say that a prisoner who has twice tried to assert his rights and found assertion futile might try an alternative route.

So that even if this letter is authentic, the prisoner is entitled to argue to the court that the inference which the judge has drawn and from which he says so conclusively disproves the facts, is in fact not founded in fact.

But the prisoner seeking clemency was doing nothing more or less than seeking an alternative route.

The Government as I say in their brief page 41 has put great stress on the lack of collaboration by the facts alleged by the defendant.

Even on this meager record however there is fairly ample corroboration of what happened.

In the first place, the United States Attorney’s affidavit and here, I suppose serves some cross purpose.

The United States Attorney’s affidavit admits interviewing the prisoner in the county jail, denies that it was done for this purpose and denies that it was done on the dates alleged.

John M. Harlan II:

I don’t suppose your position doesn’t go to the extreme of saying that no matter what a prisoner alleges if it creates an issue of facts, he is automatically entitled to a hearing.

Curtis R. Reitz:

No sir, Your Honor, the —

John M. Harlan II:

But the real issue here is whether the District Court will try this case that these papers before him acted — an abuse of discretion or an excess of what he should’ve done in denying this application about the hearing.

That’s the essence of this, isn’t it?

Curtis R. Reitz:

I would not describe it as a discretionary matter.

John M. Harlan II:

Well, discretionary is not a happy word but at least you got to show something more, don’t you to make a due process claim merely that the papers on their face raise a trivial issue of fact?

Curtis R. Reitz:

I don’t believe so Your Honor.

John M. Harlan II:

You don’t?

Curtis R. Reitz:

No sir.

Statutes —

Earl Warren:

But — in the answer to — wouldn’t the answer to Justice Harlan’s question depends somewhat very greatly on whether the things alleged in the petition, were things within the knowledge of the trial judge or things that were extraneous to the actual court rule conduct of the parties.

Curtis R. Reitz:

Oh, I think that would make a great differences, if he alleged facts that had occurred in court.

Earl Warren:

Yes.

Curtis R. Reitz:

He would —

Earl Warren:

But that wasn’t your situation as I understand it.

Curtis R. Reitz:

No sir.

These are the — all the basic facts took place in private conversations with no corroboration outside of court.

Charles E. Whittaker:

What significance do you attach to the courts asking any – (Inaudible)

Curtis R. Reitz:

Yes sir Your Honor.

The proceeding — at sentencing is in the record on page 40 and it’s very brief.

It’s about the lower half of the page on both bank robberies, the Court asked, how do you plead?

The counsel said, guilty.

The Court said, is that your desire Mr. Machibroda?

Mr. Machibroda said, “Yes Your Honor.”

Charles E. Whittaker:

What else that the court should’ve done or could’ve done?

Curtis R. Reitz:

Yes sir.

Yes sir, this is a major disagreement between the Government and petitioner in this case.

In the first place, on the facts as they stand, the Government cites this among many other irrelevant facts as indicating that there was no bargain.

I cannot conceive of any transcript which would be consistent or more consistent with the bargain than this one.

If a prisoner has agreed to enter a plea of guilty, and the judge asks him, “Do you want to enter a plea of guilty?”

He’s likely to say yes, if he’s going through with the agreement.

What the court should have done and did not do and this is the violation of Rule 11 which petitioner has alleged is he should have made more than this simple perfunctory inquiry to determine what it was that motivated the defendant to plead guilty, to have explored the nature of the crime with him, to have explored why it was that he was entering that plea, a simple routine perfunctory question like this cannot conceivably satisfy Rule 11, and this Court I think has squarely so held in the Shelton case, where in fact the Government confessed error.

In the Shelton case more than a simple question like this and the judge to the prisoner, they had a formal proceeding with the prisoner signing the guilty plea in open court.

You couldn’t find a more willing expression of a guilty plea than there was in the Shelton case.

And yet the Government when the case reached this Court, confessed error, said there had been a violation of Rule 11 and there was also in the background of that case an alleged bargain but it was a combination of the bargain plus the violation of Rule 11 which was relied upon by the Solicitor General in asking this Court to reverse and this Court summarily did reverse that case.

And the Court of Appeals for the Fifth Circuit in the Shelton case established a rule which seems highly oscillatory in these circumstances in connection with Rule 11 that where there has been a violation of the rule and there were allegations of a bargain or some defect in the plea, the burden of proof shifts to the Government to show that the plea was in fact voluntary.

I don’t think it’s necessary to the argument of this case to adopt that rule but it indicates what follows or what could conceivably follow from the failure of the Court to make the mandatory inquiry required by Rule 11.

John M. Harlan II:

What was the time in the rule, Mr. Reitz between the plea, the sentencing and this 2255 motion?

Curtis R. Reitz:

The sentencing took place in May 1956.

John M. Harlan II:

And the motion was made when?

Curtis R. Reitz:

The motion was made in 1959.

It’s not quite three years, February 1959, it’s a little shy of three years.

John M. Harlan II:

Is there any explanation to the delay that the record indicates?

Curtis R. Reitz:

No explanation beyond the facts that we know that the prisoner at the outset on the allegations that I say, we have to accept as true protested four letters, two to the Court and two to the Attorney General which — to which he received no response.

Thereafter, he tried to obtain clemency and thereafter there is this gap of time.

The only explanation for which I could offer and I’m simply guessing is that he was in the process of obtaining a legal education.

Up until that time he obviously did not have much knowledge of law but this is the first attempt by this prisoner at post conviction relief formerly.

Curtis R. Reitz:

I started to say that the affidavit of the United States Attorney is in itself some corroboration.

There is further corroboration in the transcript to what took place the first time the defendant appeared in Court.

This is on page 37 and the proceeding was on February 17th, 1956 in which the counsel for the defendant informed the court that in all probability a plea of not guilty would be entered.

This was four days prior to the first conversation with the United States Attorney.

Subsequently of course, the guilty plea was in fact entered.

The third elementary — fairly elementary corroborating fact is in what the codefendant did in this exact case, when Marvin Ferris Breaton indicted for the same bank robbery did in fact plead not guilty, went to trial and was convicted.

There’s nothing to indicate that he and the petitioner would not have taken the same road.

Our third bit of evidence which the — which has come in to this case more or less by the back door is the testimony of the petitioner at this trial, of his codefendant.

He testified in behalf of the codefendant.

The Government now argues that this testimony further shows that he is a person with no fund or credibility left and indeed they now make the rather unusual move of offering to this Court for the first time anywhere a transcript of that testimony, this offer is on their brief in page 10.

In a footnote, they say that they have the testimony transcribed and they’re now offering it to the Court for the Court’s use.

I suggest that would be an intolerable abuse of the right of the defendant to a hearing, to conduct the hearing on the conference chambers of this Court.

Charles E. Whittaker:

On the ground that this plea was induced by fraud of the Assistant District Attorney is irrelevant you say to show that in the trial of this codefendant, he took full responsibility on the stand for the holdup.

Curtis R. Reitz:

I don’t know that was — I don’t know that that was what he testified Your Honor.

The Court indicates, the same judge who sentenced this prisoner sat at the trial of the codefendant, in his opinion of the bottom of page 48 and the top of 49, he says the test — the defendant testified in behalf of Mr. Breaton which to the best to this Court’s recollection more testimony was that the defendant had admitted the robbery of the bank.

The defendant was accompanied by another individual and not by the codefendant Breaton.

And the judge says obviously, the jury did not accept the defendant’s account on the bank robbery who returned the verdict of guilty against Breaton.

Charles E. Whittaker:

I thought you were arguing though the reason the Court to gain the total facts, with this defendant was that he had taken the stand in the trial of the codefendant and assumed all of the claim in an attempt to exonerate the codefendant?

Curtis R. Reitz:

No, the motion alleges that the judge was vexed because of his testimony unfavorable to the Government.

Was unfavorable in the sense that it exonerated that defendant and that’s all the motion says.

The additional facts are brought in by the judge out of his recollection.

Felix Frankfurter:

Mr. Reitz, what has happened between the original sentencing which was in — on May 23rd, 1956, is that right?

Curtis R. Reitz:

Yes sir.

Felix Frankfurter:

And then this motion, I don’t know when it was filed, it was disposed off by Judge Kloeb on September 30th, 1959.

More than three years.

What were the — was there any intervening steps between that sentence and this motion?

Curtis R. Reitz:

The only thing the record shows Your Honor — I’m not sure whether I can use the word record.

The motion alleges that the prisoner sought informally by writing to the District Judge and to the Attorney General to seek or to get some relief from the failure or the breach of faith from the part of prosecutor and the court.

Felix Frankfurter:

Did these two counsels continued to be his counsel?

Curtis R. Reitz:

No Your Honor.

Curtis R. Reitz:

He was not represented —

Felix Frankfurter:

Did he have any counsels — did he had counsel — did he have any counsel between the sentence and this motion?

Curtis R. Reitz:

Not to my knowledge and the motion was filed pro se.

Felix Frankfurter:

Was there anything to disclose — to show that he wasn’t aware of these facts that he now set forth? Or that (Voice Overlap) —

Curtis R. Reitz:

No, he — in fact the motion specifically alleges that he was aware of the facts and protested immediately upon arriving in jail.

Felix Frankfurter:

But no — no proceeding was started on the basis of this —

Curtis R. Reitz:

No formal legal proceeding.

Felix Frankfurter:

Any explanation of why it was delayed?

Curtis R. Reitz:

No explanation in the record.

I venture the hypothesis which is not of course in the record that he was obtaining a legal education.

This is —

Felix Frankfurter:

Well, you don’t have to get legal education regarding the facts that are — within your own — do you?

Curtis R. Reitz:

No, but the remedy that you might seek is —

Felix Frankfurter:

Why do you think it?

He doesn’t appear to have been a — very slow with that person or unfamiliar with the nature of the problem, does he?

Curtis R. Reitz:

I don’t know that it appears Your Honor.

The only documents that he has filed himself for the — are the motion in this case —

Felix Frankfurter:

What I mean, the nature of the enterprises with which he is charged.

You speak a certain enterprise.

Curtis R. Reitz:

Oh, the bank robbery?

Yes Your Honor, undoubtedly.

The — I would add just one more thing.

The Government has stressed in its brief what it seems to me are a lot of irrelevant facts.

Virtually the opening and closing statement in their brief concerns the fact that this defendant — petitioner voluntarily surrendered to the jurisdiction.

He was captured in Canada I believe.

Way of extradition came back, how this fact and many others like it which the Government stresses have any relevance whatsoever to whether or not a bargained guilty plea was entered escapes me particularly since on this fact especially.

The alleged bargain did not come into existence until the prisoner had come under the jurisdiction.

I see no indication in the fact that a man waives indictment that he is therefore going to waive a trial and plead guilty.

The two don’t go together at all in my mind nor does the fact that the Court explained the charges whether the charges were read to them or the fact that as Mr. Justice Whittaker pointed out in the record, he indicated an open court that it was his desire to plead guilty.

These facts are totally consistent but the bargaining of guilty plea which is exactly what the prisoner alleges in this case and on which petitioner submits he is entitle to a hearing.

Earl Warren:

Ms. Cooper.

Julia P. Cooper:

May it please the Court.

I think Mr. Justice Harlan’s question pinpointed the remaining issue in this case and that is whether on the particular facts of this case, Mr. Machibroda was entitled to a hearing on his allegation that the pleas of guilty were induced.

Now in denying the motion, Judge Kloeb who was the judge who had heard the pleas of the guilty in the first instance.

Judge Kloeb looked at the files and the records of the case.

He looked at the allegations of the motion and he decided that petitioner’s pleas were entered voluntarily and with understanding and that the allegation of a bargain in light of the files and records had to be false.

Now, let us look at what Judge Kloeb had before him, not only in the files and records but of his own personal knowledge.

The record shows that the petitioner was before Judge Kloeb on four occasions over a three-month period between February and March of 1956 to answer to these bank robbery charges.

He had a —

Felix Frankfurter:

The answer — I’m sorry I didn’t get it, he answered to the same charges?

Julia P. Cooper:

Oh, yes.

Felix Frankfurter:

Thank you.

Earl Warren:

What were the proceedings that you’ve mentioned Ms. Cooper, just what were the proceedings?

Julia P. Cooper:

As far as the District Judge’s conservation —

Earl Warren:

If — you may not — an arraignment I suppose of (Voice Overlap) —

Julia P. Cooper:

Oh, yes, I’m — oh — before —

Earl Warren:

— but the —

Julia P. Cooper:

Yes, I’m coming to that.

On the first occasion, at the first appearance, the petitioner waives a prosecution by indictment to a first series of bank robbery charges.

On the second occasion, he waived prosecution by indictment to the second series of bank robbery charges and at that time he entered the pleas of guilty to both of the information which have been filed against him.

On the third occasion he testified against the Government and in the trial of a codefendant.

And I might say that they — the Government does not rely on specific testimony in this regard, rely on it only to the extent that the court did and it’s — it appears as part of the record in the court’s memorandum.

Charles E. Whittaker:

Didn’t you he testified against the Government?

He also testified against himself, did he?

Julia P. Cooper:

Yes.

And if that — he admit the guilt.

I think that’s properly in the record.

Felix Frankfurter:

Now what is the bearing of those three items or episodes in relation to these subsequent, these present claims.

What would Judge Kloeb get out of those three experiences with the petitioner as bearing on what he now alleges?

Julia P. Cooper:

Well, personal observation — the judge’s own personal observations of the petitioner’s —

Felix Frankfurter:

Were that of the (Voice Overlap) —

Julia P. Cooper:

— conduct and —

Felix Frankfurter:

(Voice Overlap) —

Julia P. Cooper:

— assurances.

Felix Frankfurter:

He gets some judgment regarding the prisoner’s — petitioner’s intelligence?

Julia P. Cooper:

That is true.

Felix Frankfurter:

The capacity to apprehend, his strength of character, and things like that.

Julia P. Cooper:

Yes.

Now, we think that the record shows that Judge Kloeb did take precautions to ensure that the petitioner understood the nature of the charges against him.

He was given copies of the information and both of the informations were read word for word and in open court.

Judge Kloeb received the assurance of counsel and this was retained counsel, that he had examined the charges carefully and had discussed them with its client.

And I might say that counsel appeared with petitioner on each of the four occasions.

He was — and with him even upon the occasion of his appearance as a witness.

Felix Frankfurter:

Ms. Cooper, you mean Schumann & McCullar (ph) or some other counsel?

Julia P. Cooper:

Yes, Schumann & McCullar (ph).

Felix Frankfurter:

Schumann & McCullar (ph).

Julia P. Cooper:

I think —

Felix Frankfurter:

They were counsels of his choice.

Julia P. Cooper:

Yes.

Felix Frankfurter:

He retained them?

Julia P. Cooper:

Yes.

Felix Frankfurter:

Evidently ceased them.

Julia P. Cooper:

Yes.

As far as — he was determined, yes Your Honor.

Now, as Mr. Reitz has pointed out, the court heard the assurance of the petitioner that it was his desire to waive indictment into the pleas of guilty.

In this instance, it was asked if that’s your desire Mr. Machibroda.

Is that your desire?

Now, the record also shows that the petitioner was 26 years old at the time of sentencing.

And Judge Kloeb personal assessment of the petitioner at the time of sentencing is important we think or is at least significant insofar as it has a bearing on petitioner’s later conduct and credibility at the time of imposing the 40 year sentence.

Judge Kloeb said that in view of the seriousness and the extent of the crimes which involved some a $159,000 and aggravated circumstances of bank robbery including the use of the gun that it was his feeling, that is the feeling of the court that petitioner needed to — that rather society needed protection from petitioner until, he reached a age of 50 or 60 years.

Julia P. Cooper:

Now the record shows that petitioner also wrote to Judge Kloeb, six months after sentencing and we think this letter is properly a part of the files certainly in the records of the case.

This letter is important and that Judge Kloeb in describing it as the only letter he had ever received from petitioner relied upon it as a great extent, to a great extent as we think he had a right to do in deciding that petitioner’s allegations of a bargain — that these allegations were not credible.

This letter appears at pages 55 to 56 of the record.

Felix Frankfurter:

65?

Julia P. Cooper:

50 — 55 and 56 of the record, Number 69.

It is apparent we think that this is not the letter of an angry young man who had been misled but rather the letter of a contrite man who is sorry for his transgressions against society and for Judge Kloeb’s assessment of him which led to the imposition of the 40 year sentence.

You will notice that at — on page 55 he says, “I am advised by the decisions arrived at.”

At the top of page 56, he says, “My feeling is that you’ve — he shows to give me this sentence”, and I quote here “because of my abducere and foolish pride.”

All you could see was a young maniac with no apparent respect for authority and so he thought I was immutable.

And notice that he expressed his remorse.

I have a great desire to again be accepted by our society.

Notice that he expresses at that time respect for the law.

I believe that our law today represents not only but authority but justice, in the true sense of the word.

And notice he also expressed his respect for Judge Kloeb.

You being a federal judge and a man of intelligence, integrity and humility.

Note — finally, the relief that he request, I urge you to reconsider my case in the hope that you would consider making my two sentences concurrent which would’ve resulted in a 25 year sentence, had the sentences been concurrent.

Now this then is the record.

On the other hand, we might consider the allegations which petitioner made in his motion to vacate which was — that the motion was filed three years, almost three years thereafter.

In his affidavit which appears at pages 20 and 23 of the record and to which the court’s attention had previously been called.

He alleged not only that he entered the plea in 1956 because Mr. Condon promised him that if he would do so, he would receive a sentence not exceeding 20 years.

But he also implied that the court had knowledge of this agreement.

Now this is of course is the same court that petitioner had praised six months after the inquisition of the 60-year sentence as a man of integrity, intelligence and humility.

Now, petitioner also alleged in his motion that he had written two letters to the court informing of their agreement.

Yet the only letter which Judge Kloeb had received is that letter which we have already seen which was a letter of an entirely different character.

And petitioner further alleged that Mr. Condon promised him that in the event the sentence exceeded the promised 20 years, that he would move — Mr. Condon would move within 60 days thereafter for reduction of that part of the sentence which exceeded the 20 years.

And yet petitioner waited after this time almost three years before instituting the present proceeding.

Under these circumstances it is understandable that Judge Kloeb found petitioner’s allegations to be false.

And significantly Judge Kloeb stated in his comprehensive memorandum which appears at pages 47 to 52 of the record that if he had any doubt at all about the truth or the falsity of the allegations, he would’ve required a hearing but that he could draw no other conclusion, no other conclusion from the record but that petitioner’s allegations were mere concocted — or afterthoughts.

Petitioner’s position would appear to be that no matter how ludicrous or how patently false our allegations are in the light of the record, is a movement under Section 2255 does in fact set out details of an alleged agreement.

An alleged injustice within his personal knowledge, he is entitled to a hearing.

Julia P. Cooper:

We do not believe this to be the law.

The often repeated generalization that averments of fact under Section 2255 motion must be accepted as true means only that they must be accepted as true insofar as they are not conclusively shown to be false by the files and records.

This is the language we think, the specific language of Section 2255 and it is the holding of the Hayman case which petitioner relied upon initially in bringing the motion in his brief.

In the Hayman case, the issue was whether the movement’s attorney had appeared as a counsel for a witness with the movement’s knowledge and consent.

That particular issue was in no way reflected in the files and records of that case.

And the Government in Hayman had conceded, in fact conceded that the factual issue required the presence of Hayman at a hearing.

The court in Hayman, this Court in Hayman specifically pointed out that a movement under Section 2255 does not have to be automatically produced in every proceeding but that his production depends upon the circumstances of each case.

The court recognized that Section 2255 permits summary dismissal if — in the language of — as I’ve said, the language of the Section said that the motion has been filed and the records in the case conclusively show that the petitioner is not entitled to relief.

Potter Stewart:

That was reaffirmed just yesterday, wasn’t it?

Julia P. Cooper:

Yes sir, it was, in the (Inaudible) case.

Hugo L. Black:

Has the petitioner in any of his papers asserted these?

Julia P. Cooper:

Not to my knowledge Your Honor, no.

Our case is very similar to the present case is that of Johnson versus the United States.

Likewise the case which arose in the Sixth Circuit — in the Johnson case, may I make just one reference to that.

The Johnson case at 239 F.2d 698 was a bank robbery case as this case, there was a 40-year sentence as in this case.

The motion under Section 2255 was filed seven years after conviction and it relied on Hayman and as in this case it alleged that through coercion and threats of the Assistant United States Attorney, Johnson was denied essential witnesses.

The Court of Appeals for the Sixth Circuit in referring the denial of the motion without a hearing noted that the allocations followed a pattern which had become prevalent to enable convicts under long term sentences to obtain vacation, vacations from imprisonment by trumped up charges against their attorneys, against court officials and even district judges notwithstanding that said — the Court of Appeals, it is incumbent upon the lower courts to follow the pronouncements of the Supreme Court.

But said the court and we quote this on page 42 of our brief.

We cannot believe that the Supreme Court intended in its care case for the protection of human liberty to impose upon the inferior courts the duty of recalling years after action in criminal cases prisoners for rehearing based on obviously nebulous and false accusations.

That reasoning is pertinent here.

We think the very purpose of a hearing is to enable a court a court to arrive at the truth.

The very purpose of Section 2255 was to prevent useless burdensome hearings where the record would show that the claims moved out the merit.

And as our brief points out the other futility of the hearing is particularly apparent here where the allegations themselves ruled out the possibility that they should be corroborated.

Finally, one word about our petition —

Felix Frankfurter:

Who were — Ms. Cooper.

Julia P. Cooper:

Yes.,

Felix Frankfurter:

Suppose this went to a hearing, who were the potential witnesses?

Who would be — could’ve been the potential witnesses?

The Assistant United States Attorney, the petitioner, who else?

Julia P. Cooper:

As far as the allegations would allege they would be the only witnesses.

Julia P. Cooper:

The —

Felix Frankfurter:

So the —

Julia P. Cooper:

— petitioners does not in a —

Felix Frankfurter:

The judge?

Yes.

Julia P. Cooper:

Judge, yes.

Felix Frankfurter:

So the — the only other material with the court that the judgment gets in regard to this charge is to get the same — to get the statement of the U.S. Attorney and the petitioner respectively under oath and subject to possible and all the power and process of cross-examination which would break down to a week.

Do you say the U.S. Attorney would under cross-examination be crushed to corroborate all of the statements that this fellow says, is that it?

I mean —

Julia P. Cooper:

Yes.

Felix Frankfurter:

I mean translating in to what would happen into actuality instead of just abstract speculation and fanciful taking.

Julia P. Cooper:

Yes Your Honor.

Earl Warren:

I suppose Ms. Cooper also though there might be some other witnesses in connection with the letters that the man said he wrote to the Attorney General and to the judge for instance of the — if he said he gave them to the warden in the prison and they were lost some place in transit and they developed that he did actually do it.

I suppose there might be witnesses to test the truth of this statement in that regard might there not be?

Julia P. Cooper:

Mr. Chief Justice, I don’t believe he specifically alleges that the names of those witnesses in his affidavit is there might be —

Earl Warren:

So that he wouldn’t have to and that’s evidentiary, isn’t it?

If you are trying to speculate now, on what witnesses he could have on — to substantiate his claims and I don’t suppose he has to name everyone in this petition, does he?

Julia P. Cooper:

I don’t say that he has to name the — no Your Honor but the — he has to provide details to the extent that it would make his motion meet the requirements of the Section that the — the allegations must be —

Earl Warren:

May I ask you this question.

Suppose the judge knew nothing about this man.

It was an entirely new proceeding to him.

And this petition was on file and was before it.

Would it be adequate to call for a hearing?

Julia P. Cooper:

On the same records, Your Honor?

Earl Warren:

Yes.

Julia P. Cooper:

On the same —

Earl Warren:

Yes.

Just say it’s a new judge and everything else is the same and he makes his — files his petition, would that — to be sufficient to call for a hearing.

Julia P. Cooper:

Well, Your Honor that might be a harder case than this but we think that the record itself in this case is the presumption of regularity quite apart from the personal knowledge of the judge.

Earl Warren:

Well, I was wondering how could the record show anything about these letters.

Earl Warren:

And how could the record itself show to a stranger, maybe to the judge at the trial, it might be a little different but to a strange judge, how could this show whether his allegation about his conversations with the Unites States Attorney and the promises that were made were true or false?

Julia P. Cooper:

He alleged —

Earl Warren:

To the extent to deny him a hearing.

Julia P. Cooper:

As I’ve said Your Honor that would be a harder case.

Earl Warren:

It isn’t a question whether it’s a harder case, that wasn’t your — would he be entitled to — would the judge be entitled to say in most circumstances, on the records, files and documents shown conclusively that he’s not entitled to a hearing and is denied or would he be obliged to give him a hearing?

Julia P. Cooper:

I think Your Honor that each case would have to be considered on the basis of the files and in records.

If this is an individual —

Earl Warren:

Well I’ve talked about these files and these records but to another judge.

Julia P. Cooper:

To another judge, it’s presumably the letter to the judge is a part of the files and records.

That’s right.

The letter to Judge Kloeb is a part of the thousand records in your hypothetical case, is that right?

Earl Warren:

No, there are no records.

There are — I want the records just they are now.

There are no letters there because he is —

Julia P. Cooper:

There is one letter there.

Earl Warren:

Yes.

Oh, yes.

That letter be in there too.

But the two letters that he says he sent and the judge says I don’t remember receiving.

Now, we got a strange judge.

This one determined that question was — as he will, the question as to whether the allegation about the coerced plea is true.

Would that be something calling for a hearing or for the judge just to decide whatever, this man is convicted on this admitted certain things and so we won’t give preference to anything.

He says, we won’t give him the hearing.

Julia P. Cooper:

Well, Your Honor I certainly think the strange judge would have to take into consideration everything within the files and record and/or as to whether or not in that case, particular case, he would be required to grant him a hearing.

I mean, I —

Earl Warren:

Well I don’t (Voice Overlap) —

Julia P. Cooper:

The totality of the circumstances is so important.

He will have an intelligent accused, represented by two counsel.

All of those circumstances.

Earl Warren:

Well Ms. Cooper I don’t want to be persistent but I’ll tell you just why I asked that, I wonder if this man is being denied a hearing in this case just because the judge says I’ve had experiences with this man.

Earl Warren:

I know he’s a robber and I know he’s a thief.

He’s lied in other respects and therefore I think that nothing he says would justify him and in taking the time of this Court in giving him a hearing so I will deny it.

Is that what the — is that what the judge did in this case or with another judge, complete stranger have the evidence on which he could say that the man — this petition was frivolous and that there was no need of giving him a hearing.

That’s the reason that I’m asking the question.

Julia P. Cooper:

Well, no Your Honor.

I don’t think that that was the attitude of the judge here nor do I think that the record would indicate that that was his consideration.

That is, I mean, I don’t think he said that I know he’s thief.

In fact, just the opposite, I would say that certainly Judge Kloeb had a rather — well he was impressed by the letter asking for leniency which the young man did send to him.

I think he took into consider and I think his memorandum, reading his memorandum would show that he took it to consideration the totality of these circumstances.

The fact he — there was a three months period of doing — in which time he answered to the charges.

The fact that he was represented by diligent counsel.

The fact that — he did appear to be intelligent.

That the record itself showed a presumption of regularity.

I think all of these considerations would appear in his opinion.

Thank very much.

Earl Warren:

Mr. Reitz.

Curtis R. Reitz:

May I just add one more word Mr. Chief Justice.

I believe I have about a minute left.

In connection with the hearing Mr. Justice Frankfurter, if were conducting the hearing or assert additional witnesses that I would call immediately that the primary one, namely defense counsel.

Felix Frankfurter:

He — who?

Curtis R. Reitz:

Defense counsel to find out why it was in a brief span of days.

The defendant had indicated normal accord, when he pled not guilty to change his mind.

Another witness that I would look for myself in this hearing on these allegations which I think would be crucial would be a record of visits to the county jail.

It was assumed to me that there would probably be some record kept of the — those who visit prisoners and if this corroborating evidence could be found it would be most helpful I would think in establishing the accuracy of the statements made by the petitioner.

Felix Frankfurter:

Are there any affidavits from former counsel in the case?

Curtis R. Reitz:

No Your Honor.

The only thing in the case as the start — it was in petitioner’s per se motion and his affidavit attached filed from Alcatraz where he’s somewhat incapacitated.

Hugo L. Black:

He would have won the case, he would get a new trial, wouldn’t he?

Curtis R. Reitz:

Yes sir.

We’d be back at the arraignment stage on this issue.

Hugo L. Black:

Did he deny — has he denied his guilt?

Curtis R. Reitz:

To my knowledge here Your Honor there’s nothing in the record affirmatively denying it or admitting it.

Earl Warren:

Well Mr. Reitz you mean if not a thief, just one is a case where you’re representing him here.

All he’d get would be (Voice Overlap) —

Curtis R. Reitz:

We’d get the hearing and that’s (Voice Overlap) —

Earl Warren:

All you’d get would be a hearing.

Curtis R. Reitz:

I thought Mr. Justice Black might be one of the hearing.

Earl Warren:

Yes.

Hugo L. Black:

And that was held.

Earl Warren:

But all you seek here is a hearing, is that right?

Curtis R. Reitz:

That’s right.

Mr. Justice Clark, the testimony is not in the record in this case.

I do not know what he testified other than the allegation that it was unfavorable to the Government.

Felix Frankfurter:

But the judge did.

Curtis R. Reitz:

I would think that’s further testimony by the district judge.

Tom C. Clark:

(Inaudible)

Curtis R. Reitz:

It’s in his memorandum, yes Your Honor.

Earl Warren:

Very well.

We’ll recess.