Vincent Rizzo, Petitioner-appellant, v. United States of America, Respondent-appellee, 516 F.2d 789 (2d Cir. 1975)

This is an appeal from an order of the United States District Court for the Southern District of New York denying by endorsement and without a hearing appellant's motion, made pursuant to 28 U.S.C. § 2255, to vacate his judgment of conviction and sentence. Appellant claims that his guilty plea was not made voluntarily with an understanding of the nature of the charges and the consequences of the plea, and that there was no factual basis for the plea. We agree that the requirements of Rule 11 of the Federal Rules of Criminal Procedure were not met here.¹  Accordingly, we reverse the judgment of conviction and remand so that appellant may plead anew.

Appellant, Vincent Rizzo, was indicted along with two co-defendants, Phillip Crispino and Patty Marino, on December 6, 1972. Count One of the indictment charged Rizzo and his co-defendants with conspiracy to participate in the use of extortionate means to collect and attempt to collect extensions of credit from John Calamaras and conspiracy to obstruct, delay and affect the movement of articles and commodities in commerce by obtaining property from Calamaras by the wrongful use of actual and threatened use of force, violence and fear in violation of 18 U.S.C. §§ 894 and 1951. Count Two charged the defendants with participating in the use of extortionate means to collect and attempt to collect extensions of credit from John Calamaras in violation of 18 U.S.C. §§ 891(2) and (7) and 894. Count Three, the plea to which is in issue here, charged the defendants with obstructing, delaying and affecting commerce and the movement of articles in commerce by obtaining money from Calamaras through the inducement of actual and threatened use of force, violence and fear in violation of 18 U.S.C. § 1951.

On October 9, 1973, Rizzo withdrew his previously entered plea of not guilty and entered a plea of guilty to Count Three of the indictment.²  At the plea proceedings, the District Court, after determining that Rizzo was ready to plead, asked the appellant if he wished to have the third count of the indictment read to him. Appellant's attorney stated that he would waive a reading of the indictment since he had read the third count a number of times and had discussed the indictment and the facts of the case with appellant. Judge Duffy then specifically asked the appellant if he wished the third count read to him. The appellant responded, "It does not have to be read to me. I don't contest the indictment at all."

The District Court then explored the voluntariness of Rizzo's plea and his understanding of the charge against him. In so doing, Judge Duffy, paraphrased the indictment and outlined the consequences of a guilty plea.³ 

Judge Duffy then asked Rizzo if he had committed the offense charged in the indictment. The ensuing exchange is reprinted in the margin.⁴  Essentially, Rizzo asserted that Calamaras was his "dear friend", that their friendship was of many years duration, that he, Rizzo, had personally loaned Calamaras money and has also borrowed money on Calamaras' behalf, and that he had authorized Crispino and Marino to collect the debt from Calamaras. He denied any knowledge or condonation of the use of force in making the collections, but indicated that he still wished to plead guilty to the charge.

Rizzo's attorney then stated that his discussions with the prosecutor and his review of government tape recordings had satisfied him that there was no reason for the Court not to accept Rizzo's plea of guilty. Judge Duffy concluded the allocation by stating that he believed that Rizzo was "acting voluntarily and knowledgeably and that there was a basis in fact for the guilty plea."

On December 6, 1973, Rizzo was sentenced by Judge Frederick vanPelt Bryan⁵  to a twenty-year prison term on Count Three to run concurrently with previous sentences imposed by Judge Gagliardi and Judge Carter. Counts One and Two of the indictment were dismissed on appellant's motion at the time of sentence.

On October 17, 1974, Rizzo moved, pursuant to 28 U.S.C. § 2255, to vacate his sentence and set aside the judgment of conviction. In an order filed on October 22, 1974, Judge Duffy denied the motion without a hearing.

The Supreme Court, in the exercise of its supervisory power over the lower federal courts, has held that a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure specified in Rule 11. McCarthy v. United States,394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). That procedure is designed to facilitate the district judge's determination of the voluntariness of a guilty plea and also to produce a complete record at the time the plea is entered of the factors relevant to the voluntariness determination. Id. at 465, 89 S. Ct. 1166. Because a guilty plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts,"394 U.S. at 466, 89 S. Ct. at 1171, the judge, in order to comply with Rule 11, must not only inquire into the defendant's understanding of the nature of the charges and the consequences of the plea, but must also "develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge." Santobello v. New York,404 U.S. 257, 261, 92 S. Ct. 495, 498, 30 L. Ed. 2d 427 (1971) (footnote omitted; emphasis in original); see also United States v. Navedo, 516 F.2d 293-297 (2d Cir. Mar. 17, 1975); Irizarry v. United States, 508 F.2d 960, 967 (2d Cir. 1974); Manley v. United States, 432 F.2d 1241, 1244 (2d Cir. 1970) (en banc). On the record before us here, it is clear that there was no factual basis to support appellant's plea.

Count Three of the indictment charged Rizzo with violating 18 U.S.C. § 1951. The elements of an offense under 18 U.S.C. § 1951 are (1) interference with commerce in any way or degree and (2) extortion. See, e. g., Stirone v. United States, 361 U.S. 212, 218, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960). Extortion consists of "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b) (2). The element of actual or threatened force or violence, or fear, is essential to the crime. See, e. g., United States v. Billingsley, 474 F.2d 63, 66 (6th Cir.), cert. denied, 414 U.S. 819, 94 S. Ct. 42, 38 L. Ed. 2d 51 (1973); United States v. Tropiano, 418 F.2d 1069, 1081 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 90 S. Ct. 1262, 25 L. Ed. 2d 530 (1970); United States v. Tolub, 309 F.2d 286, 289 (2d Cir. 1962); Nick v. United States, 122 F.2d 660, 671 (8th Cir.), cert. denied, 314 U.S. 687, 62 S. Ct. 302, 86 L. Ed. 550 (1941). Yet nowhere on the face of the record does this essential element of use of force, violence or fear appear.

Not only is a factual basis for the essential element of the threatened use of force, violence or fear entirely absent from the record, but every indication on the record points toward a contrary conclusion. Rizzo described Calamaras as "beyond the point of a casual friend" and "more or less like my father"; there is no admission on the record as to threats by Rizzo himself and although Rizzo admitted that he had requested Crispino and Marino to collect money from Calamaras, he vigorously asserted that "(h)ow they collected the money, I was unaware of it. I was unaware of Mr. Cr(i)spino ever threatening this man because I would never allow it and I was also unaware of Mr. Marino threatening this man." Thus, at the very moment of pleading Rizzo in effect negated his plea by his vehement denials of any knowledge of the use of threats of force and his protestations that he would not allow such threats to be made against his "dear friend" Calamaras. As has been pointed out by the Fifth Circuit, a disclaimer of knowledge of an essential element of the crime "appears more closely akin to a protestation of innocence than (to) an expression of guilt." Hulsey v. United States, 369 F.2d 284, 287 (5th Cir. 1966). Here, as in Hulsey,

"(i)t would have been a simple matter for the trial court, when confronted with such equivocal response, to delay accepting the plea until further inquiry clearly established that the accused understood the elements of the crime charged . . . and was willing to enter an unequivocal admission of guilt." Id.

While we agree with the government's assertion that the reading of the indictment coupled with the defendant's admission that he committed the acts charged therein may, in some instances, satisfy the factual basis requirement, Irizarry v. United States, supra, at 968, n.9, this is not such a case. Not only did the district court fail to read the indictment, merely paraphrasing it, but Rizzo did not unequivocally admit that he committed the acts charged therein, stating only that "I understand my role in that." In view of Rizzo's immediately subsequent denials of the use of threats of force, this ambiguous statement is insufficient to meet the factual basis standard set forth in United States v. Steele, 413 F.2d 967, 969 (2d Cir. 1969) and approved in Irizarry, 508 F.2d 968, n.9, which makes it clear that

"particularly where more than one defendant is charged, a sufficient statement of the acts and intent of the particular defendant, what the defendant did and intended, is necessary to an intelligent determination of whether there was a factual basis for the plea."

See also McCarthy v. United States, supra, 394 U.S. at 470, 89 S. Ct. 1166; United States v. Navedo, supra.

The factual basis requirement is designed to "protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge." F.R.Cr.P. 11, Notes of Advisory Committee on Criminal Rules. See also McCarthy v. United States, supra, 394 U.S. at 467, 89 S. Ct. 1166. In this case the conduct which Rizzo admitted was not sufficient to constitute the offense charged in the indictment to which he pleaded guilty; under these circumstances it was the obligation of the district judge to refuse to accept his guilty plea. See United States v. Navedo, supra, at 297-298.

The order of the district court is reversed and the case remanded so that appellant may be given an opportunity to replead.