James Edward Kennedy v. United States

Sixth Circuit

James Edward Kennedy v. United States

397 F.2d 16, 1968 U.S. App. LEXIS 6350

CourtCourt of Appeals for the Sixth Circuit

DecidedJune 26, 1968

Docket18473_1

StatusPublished

Cited by42 cases

This text of 397 F.2d 16 (James Edward Kennedy v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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James Edward Kennedy v. United States, 397 F.2d 16, 1968 U.S. App. LEXIS 6350 (6th Cir. 1968).

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Opinion

PER CURIAM.

Appellee Kennedy was represented by appointed counsel and pleaded guilty to an information charging him with robbery of the Clintonville office of the Ohio National Bank, Columbus, Ohio, in which bank the deposits were insured by the Federal Deposit Insurance Corporation. He was sentenced to twenty years’ imprisonment. Three years later he filed a motion to vacate sentence under 28 U.S.C. § 2255, claiming that two of the five Federal Agents who spoke to him prior to arraignment promised that in return for his cooperation he would receive no more than a five-year sentence. All five agents signed affidavits denying that any such promises had been made.

Without conducting a hearing, or making any determination of the truth of such claim, the District Judge granted the motion and set aside the conviction on the sole ground that the sentencing judge had accepted the plea of guilty before determining that it had been made voluntarily and with knowledge of *17 the nature of the charges, as required by Rule 11, F.R.Crim.P., as it existed prior to its amendment. He relied on Heiden v. United States, 353 F.2d 53 (9th Cir. 1965), and stated that he found support for his decision in Julian v. United States, 236 F.2d 155 (6th Cir. 1956).

Heiden has been rejected in at least three Circuits. Halliday v. United States, 380 F.2d 270 (1st Cir. 1967); Stephens v. United States, 376 F.2d 23 (10th Cir. 1967), cert, denied, 389 U.S. 881, 88 S.Ct. 124, 19 L.Ed.2d 176; Brokaw v. United States, 368 F.2d 508 (4th Cir. 1966), cert, denied, 386 U.S. 996, 87 S.Ct. 1316, 18 L.Ed.2d 344. In Rimanich v. United States, 357 F.2d 537 (5th Cir. 1966) the Heiden rule was called a “novel doctrine”. We are not inclined to follow it.

In Julian, counsel for defendant entered into stipulations which “* * * it is not contended that defendant acquiesced in or approved of. * * *” (236 F.2d at page 158). The stipulations therefore should not have been considered as a plea of guilty. The Court also said at page 158:

“In order to comply with the rule the District Court need not follow any particular ritual. The prerequisite is that the defendant understands the consequences of the plea * * *»

Rule 11, as it existed prior to its amendment, does not state how or in what manner the Court shall determine the voluntariness of a plea. Matters of reality, and not mere ritual, should be controlling. Turner v. United States, 325 F.2d 988, 989 (8th Cir. 1964).

The judgment of the District Court is reversed and the cause is remanded for an evidentiary hearing to consider the claims made by Kennedy and the response of the Government thereto, and to determine from all the circumstances of the case whether the plea of guilty was in fact knowingly and voluntarily made.

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PER CURIAM.

Appellee Kennedy was represented by appointed counsel and pleaded guilty to an information charging him with robbery of the Clintonville office of the Ohio National Bank, Columbus, Ohio, in which bank the deposits were insured by the Federal Deposit Insurance Corporation. He was sentenced to twenty years’ imprisonment. Three years later he filed a motion to vacate sentence under 28 U.S.C. § 2255, claiming that two of the five Federal Agents who spoke to him prior to arraignment promised that in return for his cooperation he would receive no more than a five-year sentence. All five agents signed affidavits denying that any such promises had been made.

Without conducting a hearing, or making any determination of the truth of such claim, the District Judge granted the motion and set aside the conviction on the sole ground that the sentencing judge had accepted the plea of guilty before determining that it had been made voluntarily and with knowledge of *17 the nature of the charges, as required by Rule 11, F.R.Crim.P., as it existed prior to its amendment. He relied on Heiden v. United States, 353 F.2d 53 (9th Cir. 1965), and stated that he found support for his decision in Julian v. United States, 236 F.2d 155 (6th Cir. 1956).

Heiden has been rejected in at least three Circuits. Halliday v. United States, 380 F.2d 270 (1st Cir. 1967); Stephens v. United States, 376 F.2d 23 (10th Cir. 1967), cert, denied, 389 U.S. 881, 88 S.Ct. 124, 19 L.Ed.2d 176; Brokaw v. United States, 368 F.2d 508 (4th Cir. 1966), cert, denied, 386 U.S. 996, 87 S.Ct. 1316, 18 L.Ed.2d 344. In Rimanich v. United States, 357 F.2d 537 (5th Cir. 1966) the Heiden rule was called a “novel doctrine”. We are not inclined to follow it.

In Julian, counsel for defendant entered into stipulations which “* * * it is not contended that defendant acquiesced in or approved of. * * *” (236 F.2d at page 158). The stipulations therefore should not have been considered as a plea of guilty. The Court also said at page 158:

“In order to comply with the rule the District Court need not follow any particular ritual. The prerequisite is that the defendant understands the consequences of the plea * * *»

Rule 11, as it existed prior to its amendment, does not state how or in what manner the Court shall determine the voluntariness of a plea. Matters of reality, and not mere ritual, should be controlling. Turner v. United States, 325 F.2d 988, 989 (8th Cir. 1964).

The judgment of the District Court is reversed and the cause is remanded for an evidentiary hearing to consider the claims made by Kennedy and the response of the Government thereto, and to determine from all the circumstances of the case whether the plea of guilty was in fact knowingly and voluntarily made.

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397 F.2d 16, 1968 U.S. App. LEXIS 6350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-edward-kennedy-v-united-states-ca6-1968.

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