Von Moltke v. United States

189 F.2d 56, 1951 U.S. App. LEXIS 3534

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 6, 1951
• Docket: 11059_1
• Status: Published

Opinions

MILLER, Circuit Judge.

The petitioner appeals from an order of the District Court dismissing her petition for writ of habeas corpus and discharging the writ. This is the second appeal.

The facts giving rise to the proceeding are fully stated in the majority and dissenting opinions of this Court [161 F.2d 113 and 117] on the first appeal, wherein the judgment of the District Court dismissing the petition and writ was affirmed, and in the three opinions by different Justices of the Supreme Court on review, wherein the judgment was' reversed and the cause remanded to the District Court for further hearings, 332 U.S. 708, 727, 731, 68 S.Ct. 316, 92 L.Ed. 309. Accordingly, it is unnecessary to restate them here, except to briefly point out the issue involved and the question which was before the District Court and is now before this Court by reason of the ruling and remand by the Supreme Court.

The petitioner, Grafin Marianna von Moltke, was indicted for conspiracy to violate the Espionage Act of 1917. 50 U.S. C. §§ 32 and 34.¹ Upon arraignment in the District Court before District Judge Moin-et on September 21, 1943, she stood mute and a plea of not guilty was entered. On October 7, 1943, before District Judge Lederle, she waived her right to be represented by counsel and changed her plea of not guilty to guilty. On August 7, 1944, she filed a motion for leave to withdraw her plea of guilty on the ground that it was made without knowledge of her legal rights and without a thorough understanding of the nature of the offense charged. This motion was denied by Judge Moinet on November 14, 1944 and on the same date she was sentenced to imprisonment for a term of four years. The petitioner then filed her petition for writ of habeas corpus, which was heard by District Judge O’Brien. Judge O’Brien ruled that the only substantial question in the case was whether the petitioner intelligently and knowingly waived her constitutional rights, that the evidence was overwhelming against her contentions, that she understood the charge and the proceedings, and “freely, intelligently and knowingly waived her constitutional rights.” Ex parte von Moltke, 72 F.Supp. 994, 997. On appeal, this Court affirmed the judgment of the District Court, one Judge dissenting.

In view of the present status of the case, the following factual issue is important and is briefly reviewed. The hearing in the District Court developed the fact that following her arraignment and plea of not guilty Mrs. von Moltke was continuously visited and questioned by agents of the Federal Bureau of Investigation, and that during such a visit by agents Collard and Hanaway, agent Collard, who was an attorney, attempted to explain the indictment to her and the nature of a legal conspiracy. Mrs. von Moltke claimed this occurred on or about September 27, 1943, while agent Collard, after refreshing his recollection from certain records, testified it was on October 2, 1943. Mrs. von Moltke claimed that Collard gave as an example what he called the “Rum Runners,” explaining that if there was a group of people in a “Rum” plan to violate the law, and another person was there who didn’t know the people who were planning the violation and didn’t know what was going on, and the plan was later carried out, in law the person who was merely present was guilty of conspiracy. Such advice, if given, even though given in good faith, was nevertheless erroneous. Agent Collard testified that he did not remember using such an illustration, but it was quite possible that Mrs. von Moltke’s memory was better than his and he may have used such an illustration. It was this phase'of. the case that was considered crucial by the Judge of this Court who dissented from the majority ruling and by the Supreme Court on review of this Court’s ruling.

On review by the Supreme Court, four Justices were of the opinion that Mrs. von Moltke was entitled to counsel other than that given her by Government agents; that when she pleaded guilty she did not have that full understanding and comprehension of her legal rights indispensable to a valid waiver of the assistance of counsel; and that the admitted circumstances did not support a holding that Mrs. von Moltke intelligently and understandingly waived her right to counsel. Three members of the Court were of the opinion that the issues in the case were factual and dealt largely with the credibility of witnesses; that the uniform findings of fact against her by the three trial judges who separately saw and heard her were amply sustainable; that the trial judge in the habeas corpus hearing found the factual issues overwhelmingly against the petitioner ; that there was nothing in the printed record sufficient to convince them that if they had seen the witnesses and heard the testimony they would not have reached the same conclusion; and that they agreed with the finding that Mrs. von Moltke had failed in the proceeding to establish that either her plea of guilty or her waiver of counsel in that proceeding was not freely, intelligently and knowingly made. Two members of the Court, in a separate opinion by Mr. Justice Frankfurter, were of the opinion that the appropriate disposition of the case turned on the truth of Mrs. von Moltke’s allegation that she was incorrectly advised by the FBI agent about the law of conspiracy; that if she was so erroneously advised it might well have induced her to believe she was guilty, however innocent she may have deemed herself to be; that such a plea of guilty, made under such circumstances, could not be regarded as having been made on the necessary basis of informed, self-determined choice; that on the record before them they could not tell whether the advice which, if given, would have colored' the plea of guilty was actually given; that the District Judge’s opinion did not resolve those difficulties; and that since the-record afforded neither resolving evidence nor the District Court’s finding on what they deemed the circumstance of controlling importance, the cause should be sent back “to the District Court for further proceedings with a view to a specific finding of fact regarding the conversation between petitioner and the FBI agent, with as close a recreation of the incident as is now possible.” [332 U.S. 731, 68 S.Ct. 327.] The mandate which was issued read in part as follows: “ * * * The judgment of the Circuit Court of Appeals is reversed and that of the District Court is set aside. The cause is remanded to the District Court of the United States for the Eastern District of Michigan so that it may hold further hearings and give consideration to, and make explicit findings on, the questions of fact discussed in the-separate opinion delivered by Mr. Justice Frankfurter. If upon such further hearings and consideration, the District Court finds that the petitioner did not competently, intelligently, and with full understanding of the implications, waive her constitutional right to counsel, an order should be entered directing that she be released from further custody under the judgment based on her plea.”

Following the remand to the District Court, District Judge Picard, in compliance with the Supreme Court mandate, held further hearings on March 10, 1.5, 16, 17 and 29, 1949. The typewritten record of these proceedings comprises approximately 650 pages. By agreement of counsel, it was ordered that all records, proceedings and evidence in the original hearing before District Judge O’Brien be admitted into and considered as part of the proceeding in the rehearing of the matter before District Judge Picard.

In the rehearing, Mrs. von Moltke’s testimony with reference to the FBI agent’s example of conspiracy was slightly different from what she testified to- in the first hearing. In the rehearing, she added to the example, alleged to have been used by agent Collard, the additional fact that the person entering the room, not knowing or having ever seen the plotters, “happens to •over listen their plan.” However, on cross examination, she either refused or was not able to identify any two or more people whom she heard “planning against the government.” In the rehearing, agent Collard was asked with reference to the original rum plan example if he gave Mrs* von Moltke that advice. To which he replied “As a lawyer I couldn’t have given her that illustration of a rum runner.” Then followed these questions and answers :

“The Court: Did you, or didn’t you?

“Q. (By Mr. Fordell): Did you give her an illustration?

“The Court: First begin with the illustration. Did you give her the illustration in the manner she has outlined yoti gave it to her, and if you did not, could she have arrived at that conclusion from anything you said? A. No, sir.

“Q. (By Mr. Fordell): You do recall giving her an illustration, is that it? A. I said at the other hearing it is quite possible I gave her an illustration concerning a Rum Runner’s case, yes, sir, but not the illustration as she said in her testimony, no, sir.

“Q. (By Mr. Fordell) : Do you recall the illustration that you gave her ? A. To the best of my ability now to remember, it is quite possible while talking to Mrs. von Moltke that I used an illustration of a rum runner’s case to attempt to show the general law of conspiracy. And to the best of my memory now, if I did use such case, I probably told her that where several people get together and decide among themselves to run rum across the Detroit River and should subsequently one ■of those persons proceed to run some rum across the Detroit River, those persons who would be together originally agreeing to so run the rum would be guilty of a conspiracy.”

The Court asked the witness Collard if it might have .been possible for Mrs. von Moltke to have been in such a state of mind as to not have understood the example he gave, to which the witness replied — • “I do not think so, your Honor, no, sir.” These questions and answers followed:

“The Court: Are you sure that you made clear to her that she must have participated in the agreement? A. Yes, sir.

“The Court: Or understanding? A. Yes, sir.

“The Court: There is no question in your mind but what she understood what you were saying? A. That is right, yes, sir.”

Judge Picard, on this factual issue, stated that the Court was met squarely with the issue of credibility, discussed the factors leading to his finding on the issue, referred to the vacillation, inconsistencies and contradictions on the part of Mrs. von Moltke, and resolved the issue in favor of the agent. He stated in his opinion: “We have no hesitancy in resolving the fact issues in favor of the agent. We believe him.” He found that Mrs. von Moltke “not only understood that she must overhear the plotters, but in addition that she must have acquiesced and participated in the illegal scheme, and that some one of the plotters must have committed an overt act aimed to carry out the conspiracy.”

Judge Picard also made a finding with respect to Mrs. von Moltke’s claim that she lacked knowledge of her constitutional right to counsel under an indictment. He referred to the facts (1) that Judge Moin-et appointed an attorney to represent her upon her arraignment on September 21, 1943, (2) that agent Collard told her that she should have an attorney to which she replied that she didn’t want one, (3) that Mrs. von Moltke’s husband continually urged that she do nothing until she consulted an attorney, (4) that Mrs. von Moltke indicated to at least one witness that she was waiting for counsel, and (5) that eventually she made her own decision to ignore her husband’s advice about getting an attorney. Her right to counsel was also specifically brought to her attention by Judge Lederle who would not accept her pleá of guilty without her written waiver. Judge Picard found on this issue “that petitioner was aware of her right to counsel which we hold was intelligently and competently waived before Judge Lederle when she pleaded guilty.”

With reference to Mrs. von Moltke’s contention that she was never apprised that she faced a possible death penalty, Judge Picard referred to the fact that this was a new contention, not: raised in the former hearing or appeal, that Mrs. von Moltke testified that she had free access to all the newspápers, that she was depressed by the adverse publicity she was getting, that the newspapers referred to such a possible penalty, and that, in any event, she knew she was subject to some sentence and actually received a moderate sentence of four years. The District Judge found that Mrs. von Moltke was well aware of the possible death penalty and strongly endorsed the language of Mr. Justice Burton in the dissenting opinion of the Supreme Court wherein he said — “She accurately forecast the general character of her sentence * *

Judge Picard also found from the consideration of all the evidence that Mrs. vonMoltke’s knowledge or ignorance of the' legal presumption of innocence to which a defendant is entitled played no part in inducing her plea and rejected her contention that she was not aware of her right to trial if she elected to remain on her plea of not guilty. . He also pointed out that agent Collard testified that his conversation with Mrs. von Moltke occurred on October 2, 1943, which date was substantiated by his own record prepared in 1944 of cards indicating jail visits. This was after she had decided to plead guilty. Judge Picard accordingly found — “She therefore decided to plead guilty before she received the alleged advice.” This factual finding was a clear cut ruling on the credibility of the two contradictory witnesses. In addition to such an issue being exclusively within the province of the District Judge, the ruling is supported by the documentary evidence referred to. It necessarily must be accepted on this review and is a decisive factor in the case.

We'do not approve of the long delay between the plea of guilty and the imposition of sentence. But, occurring after the plea of guilty, it played no part in influencing Mrs. von Moltke to enter the plea. The record does not show what, if any, consideration was given by the District Judge in imposing sentence, to the time spent in jail after the plea of guilty and before sentence, but such confinement is usually considered by the District Judge in determining the length of sentence to be thereafter served. However, it likewise played no part in influencing Mrs. von Moltke in reaching her decision.

Judge Picard carefully analyzed the possible reasons and motives inducing Mrs. von Moltke to enter a plea of guilty, supporting his conclusion and ruling that her plea of guilty was freely and competently entered. In keeping with his findings and conclusions, the District Judge entered a judgment dismissing the cause and discharging the writ. The present appeal followed.

It is well settled that in a collateral attack on a judgment in a proceeding of this nature the burden of proof rests upon the petitioner to establish by a preponderance of evidence that she did not competently and intelligently waive her constitutional right to assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 82 L.Ed. 1461; Hawk v. Olson, 326 U.S. 271, 279, 66 S.Ct. 116, 90 L.Ed. 61. The case was remanded to the District Court for a specific finding of fact, considered by the Supreme Court to be decisive of the ruling in this case. This involved a clear question of credibility of witnesses for the trial judge. The credibility of the witnesses is for the trier of the facts. Hawk v. Olson, supra, 326 U.S. at page 279, 66 S.Ct. at page 120. Rule 52, Rules of Civil Procedure, 28 U.S.C.A. We are of the opinion that the findings of the District Judge on the factual issues-disposed of by him are amply supported by the evidence hereinabove referred to, and they are accordingly approved and accepted.

We attach little significance to appellant’s contention that agent Collard’s ■ testimony, at certain points was not a categorical denial of Mrs. von Moltlce’s testimony, but was qualified by such expressions as “To the best of my ability now to remember,” “to the best of my memory now, if I did use such a case, I probably told her . . and “That is what you think you told her? A. Yes, sir.” The conversation took place in October 1943; the witness was testifying in March 1949. No notes or memorandum were available. Necessarily, the witness was testifying from memory long delayed, and the qualifying expressions were merely a recognition of that fact. To what extent, if any, it affected his credibility as a witness was one of the factors to be weighed by the trial judge in making his finding. The conflicting testimony of Mrs. von Moltke was likewise subject to the same consideration.

The appellant has failed to meet the burden of proof resting upon her in this proceeding. The judgment of the District Court is affirmed.

1 . See 1948 Revised Criminal Code, 18 U.S.C.A. §§ 794, 2388,