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United States v. De Cavalcante

decided: September 10, 1971.

UNITED STATES OF AMERICA
v.
SAMUEL RIZZO DE CAVALCANTE ET AL., APPELLANT



Hastie, Adams and Rosenn, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

This is an appeal from an order, entered after a full hearing, that denied appellant's motion, filed before sentence, to withdraw his plea of guilty.

On January 2, 1970, appellant had pleaded not guilty to a charge of conspiring to commit a federal offense through inter-state telephoning in furtherance of an unlawful gambling business. On December 15, 1970, after the completion of pretrial procedures, the district court set February 2, 1971 as the peremptory date for trial. On January 15, 1971, at his own request and after a hearing, appellant was permitted to withdraw that plea and to plead guilty. At that time he was under sentence of the same court to a term of imprisonment pursuant to another conviction, and the prosecutor had advised defense counsel that the government would recommend that any sentence pursuant to the now proposed guilty plea run concurrently with the sentence already imposed and would not oppose a suspended sentence. Subsequently, on March 10, 1971, we reversed the outstanding conviction, directing acquittal on two counts and permitting a new trial on one. United States v. De Cavalcante, 3d Cir. 1971, 440 F.2d 1264. Two days later, appellant filed his present motion for leave to withdraw his guilty plea.

At the conclusion of the hearing on this motion, the district court filed detailed and comprehensive findings of fact and conclusions of law. We here set out the findings of fact in their entirety:

Findings of Fact

"1. Defendant was at all times herein represented by experienced and able counsel.

"2. Defendant's counsel told defendant in open court that he would not represent the defendant if said plea of guilty were being made for any reason other than that the defendant was in fact guilty as charged.

"3. When the defendant pleaded guilty he knew he had an appeal pending.

"4. Defendant knew that if his conviction were reversed his sentence imposed pursuant thereto would fall.

"5. Defendant told the truth when he stated to the Court at the time of entering his plea of guilty that said plea was not induced by any promises or threats.

"6. Defendant told the truth when he stated to the Court at the time of entering his guilty plea that there had been no understanding or prediction made to him concerning his sentence.

"7. Defendant told the truth when he stated to the Court at the time of entering his guilty plea that he made said plea ...


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