337 F.

2d 313

John Joseph PUTNAM, Appellant,

United States Court of Appeals Tenth Circuit.

Milnor H. Senior, Denver, Colo., for appellant.

This appeal is from an order of the court below denying, without a hearing,
appellant's motion under Rule 32(d), F.R.Crim.P., 18 U.S.C.A., to withdraw his
plea of guilty and under 28 U.S.C.A. 2255 to vacate and set aside his
conviction and sentence. The primary issues are whether appellant was entitled
to an evidentiary hearing and whether his plea of guilty was entered voluntarily
and knowingly with a full understanding of the nature of the charge against
him.

On September 28, 1963, Putnam entered into a rental contract with a Hertz
Rent-A-Car agency in Toronto, Ontario, Canada, under the terms of which he
rented a 1963 Chevrolet automobile for a period of one day. Later, he changed
the expiration date on the rental papers from September 29 to November 29.
On November 1, 1963, Putnam was still driving the 1963 Chevrolet and was
stopped by state officers in Las Cruces, New Mexico, for speeding. As proof of
his ownership of the automobile, he offered the rental contract but this
apparently did not satisfy the state officers. Putnam was taken into custody and,
subsequently, interrogated by an agent of the F.B.I. He filed a written waiver of
prosecution by indictment and was charged by information with the
transportation in interstate and foreign commerce, from Toronto, Canada, to

Las Cruces, New Mexico, of the 1963 Chevrolet automobile, in violation of 18

Putnam was arraigned upon the charge and entered a plea of not guilty. Counsel
was appointed to represent him and he, thereafter, changed his plea of not guilty
to guilty. He was sentenced to imprisonment for a term of eighteen months.

As grounds for his motion, Putnam alleged that he was not guilty of the offense
charged and, at the most, might be guilty of 'Conversion by Bailee or
Embezzlement' and that he was induced to change his plea from not guilty to
guilty by the promises of, or a misunderstanding with, his court-appointed
attorney to the effect that he would be deported to Canada but would not be
imprisoned.

It is, of course, the rule that a plea of guilty is void when induced by promises
or threats which deprive it of the character of a voluntary act and a judgment
and sentence entered thereon is subject to attack by a 2255 motion. Machibroda
v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Luse v. United
States, 10 Cir., 326 F.2d 338. It is also the rule that a hearing is required on a
2255 motion unless the motion and the files and records in the case
conclusively show that the prisoner is not entitled to relief. Luse v. United
States, supra; Yates v. United States, 10 Cir.,316 F.2d 718. But, a hearing is not
required where the motion and the files and records conclusively show that the
prisoner is entitled to no relief, Puckett v. United States, 10 Cir., 314 F.2d 298,
or where no factual issues are raised, Johnston v. United States, 10 Cir., 331
F.2d 997. We must therefore determine whether appellant's motion and the files
and records in the case conclusively show that his plea of guilty was voluntarily
and knowingly entered. If so, he was not entitled to a hearing.

Putnam alleged in his motion that the guilty plea was induced by a promise that
he would be deported rather than imprisoned if he would plead guilty. It is not
entirely clear from the record whether this promise is alleged to have been
made by his court-appointed attorney, by the prosecutor or some other
government official or by the trial judge. In any event, such an allegation of fact
must ordinarily be accepted as true, but that is not so where the allegation is
contradicted by the files and records before the court. Pelley v. United States, 7
Cir., 214 F.2d 597, cert. denied, 348 U.S. 915, 75 S.Ct. 296, 99 L.Ed. 718;
United States v. Davis, 6 Cir., 319 F.2d 482. We are of the opinion that the files
and records in this case not only contradict Putnam's allegation, but also show
without question that appellant's plea of guilty was entered voluntarily and
knowingly with a full understanding of the nature of the charge and the possible
penalty therefor, and was not the result of a promise of any kind. At the time of

arraignment, the trial court explained to Putnam the nature of the charge against
him, advised him of the possible penalty for the offense and appointed counsel
for him. After conferring with his lawyer, Putnam in open court executed a
written waiver of the right to have his case presented to a grand jury and
consented to prosecution by information. He entered a plea of not guilty but
thereafter changed that plea to one of guilty. In so doing, he stated in response
to the court's questions that he was guilty of the offense charged and that no
threats or promises were used to induce him to change the plea.1 It is true
appellant and his attorney may have thought that he would be deported, but the
transcript of the sentencing proceedings clearly shows that while a request for
deportation in lieu of imprisonment was made to the court, it was only a request
and nothing more.2
7

We conclude that no factual issues were raised by appellant's motion and the
files and records conclusively show that his guilty plea was entered voluntarily
and knowingly and without promise of any kind. There was therefore no
necessity for the court below to hold an evidentiary hearing. We further
conclude that the record before us fails to show an abuse of discretion on the
part of the lower court in denying the appellant's motion to withdraw his plea of
guilty. Criser v. United States, 10 Cir., 319 F.2d 849.

Appellant's remaining contention that venue was not in the District of New
Mexico is patently without merit. He was transporting a stolen car in interstate
and foreign commerce and under 18 U.S.C.A. 3237 venue for an offense
involving transportation in interstate or foreign commerce is '* * * in any
district from, through, or into which such commerce * * * moves.' See Penny v.
United States, 4 Cir., 154 F.2d 629.

Affirmed.

'THE COURT: Now, let's see. Mr. Putnam, you were charged with violation of
the Dyer Act. I think I explained all of your rights to you, didn't I?
'DEFENDANT: Yes, sir.
'THE COURT: All right. How do you plead then to this charge, guilty or not
guilty?
'DEFENDANT: Guilty.
'THE COURT: You did steal this car in question, or was it already stolen by

someone else?
'MR. MONROE: Well, this car had been rented. It was a Hertz car. They rented
it in Canada for a day and kept it for a month.
'THE COURT: I presume that is equivalent to stealing it?
'MR. MONROE: Yes, your Honor, under the statute, yes.
'THE COURT: You knew that it was a stolen car, did you?
'DEFENDANT: Yes, your Honor.
'THE COURT: Were you sober when you crossed these state lines?
'DEFENDANT: Yes, sir.
'THE COURT: You knew what you were doing? You understood and knew
what you were doing?
'DEFENDANT: Yes, sir.
'THE COURT: Knew that it was stolen. Has anyone threatened you in any way
to get you to enter a plea in this case? Have they held out any promises of
leniency or offers of reward, anything of that sort?
'DEFENDANT: No.
'THE COURT: You are doing it of your own free will and choice?
'DEFENDANT: Yes, sir.'
2

'THE COURT: Mr. Putnam, do either you or your attorney have anything to say
why sentence should not be imposed on you at this time, in mitigation of
sentence, or otherwise?
'MR. MONROE: May it please the Court, I believe you were going to-'THE COURT: Well, I will, but I wondered if there was anything you wanted to
say before that.
'MR. MONROE: Yes, your Honor. We would like to request that, in the event
that sentence is imposed, that it be suspended, because we understand that this
man will be immediately deported. I have talked to the deportation people, and
they say that his entry was unlawful and that he would be immediately

deported.
'THE COURT: Now let me talk to Mr. Putnam a little bit. When I questioned
you at the time you pleaded guilty, you told me that you were guilty and so on,
and now I understand that you tell the probation officer that you are really not
guilty. Is that what your contention is?
'DEFENDANT: No, sir, that is not quite true, your Honor.
'THE COURT: What is the situation?
'DEFENDANT: I did sign for the car and bring it across the state lines, but,
although ignorance of the law is no excuse, I wasn't aware this was a crime at
the time I drove across the state lines, although I did rent the car for one day
and keep it overdue.
'THE COURT: You changed the rental papers and showed the expiration date
as the 29th of November, rather than the 29th of September?
'DEFENDANT: Yes, your Honor.
'THE COURT: You drove the car about 10,000 miles?
'DEFENDANT: Approximately, your Honor.
'THE COURT: You had it only rented for one day?
'DEFENDANT: Yes, your Honor.
'THE COURT: Well, your idea was because you got it lawfully that you could
do whatever you wanted with it, is that it?
'DEFENDANT: No, your Honor, that's not quite true either.
'THE COURT: What was it?
'DEFENDANT: I knew it was wrong to keep the car, but at the time of my
arrest, our arrest, we were going back to Canada where the car was to be
returned to its owners. This is only verbal by my statement. I have nothing to
back up this statement, but that was my intention.
'THE COURT: Here's the situation: I don't want to accept a plea of guilty from
you and then later have you contend that you weren't really guilty. I want that
settled right now and, if there is any question about it, why I would rather just
enter a not guilty plea for you and let you be tried.

'DEFENDANT: No, your Honor. I realize I am guilty.