United States of America, Appellee, v. Robert Hershey Ballerstedt, Appellant, 234 F.2d 526 (3d Cir. 1956)

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US Court of Appeals for the Third Circuit - 234 F.2d 526 (3d Cir. 1956) Submitted May 24, 1956
Decided June 12, 1956

Robert Hershey Ballerstedt, pro se.

J. Julius Levy, U. S. Atty., Edwin M. Kosik, Asst. U. S. Atty., Scranton, Pa., for appellee.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.


This is an appeal from the denial of a motion for vacation of sentence under 28 U.S.C. § 2255.

On March 18, 1954 appellant was indicted for violating 18 U.S.C. § 2314; specifically that he had transported a certain airplane from Pennsylvania to New Jersey, the property of another, of a value in excess of $5,000 and "having been taken by fraud". Arraigned in open court, accompanied by his assigned attorney, he pleaded "not guilty". On April 20, 1954 he and his attorney appeared in court and moved for leave to change his plea to "guilty". The district judge read the indictment to him, then carefully examined him regarding it and his proposed change of plea as shown in the footnote.1  Following that, the court granted the motion. On the date fixed for sentence, May 27, 1954, appellant, with his counsel, sought to change his plea back to "not guilty". Inquiry by the trial judge and further investigation at his direction by the F.B.I. satisfied him that appellant had not presented any cause for allowing the change of plea. The application was denied and appellant sentenced. Thereafter appellant filed his 2255 motion which was also denied.

From our own examination we are satisfied that the indictment charges an offense under Section 2314. Under the facts the district judge was well within his discretion in refusing to permit appellant to change his plea. Kercheval v. United States, 1927, 274 U.S. 220, 223-224, 47 S. Ct. 582, 71 L. Ed. 1009; United States v. Colonna, 3 Cir., 1944, 142 F.2d 210; Bergen v. United States, 8 Cir., 1944, 145 F.2d 181, 186; United States v. Denniston, 2 Cir., 1937, 89 F.2d 696, 698, 110 A.L.R. 1296.

The order of the district court will be affirmed.


"By the court: Mr. Ballerstedt, * * * what I hold in my hand [is] an indictment. That indictment says that on or about the 31st day of October, 1953, in the Middle District of Pennsylvania and at Mechanicsburg, down in Cumberland County, that you did knowingly transport in interstate commerce, to wit, from Mechanicsburg, Pennsylvania, to New Brunswick, New Jersey, a Model 170 Cessna Airplane, Serial No. 20195, the property of Paul Konhaus, and of a value in excess of $5,000.00, said airplane having been taken by fraud

Now the first question would be: Did you knowingly transport a plane across state lines?

By the defendant: Yes.

By the court: And did you know at the time that it was taken by fraud?

By the defendant: Yes.

By the court: Now, you pleaded before Judge Watson that you were not guilty, and your position is different. Now, do you understand exactly what you are doing?

By the defendant: Yes, I do.

By the court: Did anybody give you any assurance by changing your plea you would get any advantage, good, bad or indifferent from it?

By the defendant: No.

By the court: You know if you plead before me you are liable to go to jail, do you?

By the defendant: Yes, sir."