Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-890 - Alfred Y. Kirkland, Judge.
Cummings, Circuit Judge, Miller, Associate Judge,*fn* and Tone, Circuit Judge.
This petition under 28 U.S.C. § 2255 raises the question of whether petitioner's plea of guilty was voluntary in the face of the court's failure to inquire in detail concerning the factual basis for the plea and thus to discover and explain to petitioner a potential entrapment defense. The District Court denied relief. We reverse.
In 1976 a nine-count indictment was returned against petitioner for distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Represented by retained counsel, petitioner initially pleaded not guilty and then moved to change his plea to Counts VII and VIII of the indictment pursuant to a plea agreement calling for dismissal of the other counts upon acceptance of the guilty plea to the two counts.
The motion for change of plea was initially presented to a judge other than the one to whose calendar the case was assigned. Because petitioner could not speak English, the communications between him and the judge proceeded through an interpreter. After hearing petitioner's story, the judge concluded that there was "at least a factual question as to whether the defendant is not guilty by reason of entrapment," declined to accept the plea, and continued the matter for hearing before the judge to whose calendar the case was assigned.
The following day petitioner and his counsel, with an interpreter, appeared before the latter judge in a renewed effort to submit his guilty plea. At the hearing on that day nothing was said about entrapment. The record is not clear as to how fully the judge was informed of what had occurred the previous day, but he apparently knew that the plea had been tendered and refused. Petitioner's counsel stated,
I spent extensive hours with this man [petitioner], explained to him the various defenses that may be raised in this case, and the possibility that those defenses are non-existent, the possibility of other charges being brought before this court; and Mr. Carreon has been well aware of that for some time. . . . He intended to plead guilty [the previous day] . . . and as long as 20 minutes ago -- the last time I spoke to him -- it was still his desire, Judge.
At the ensuing plea hearing the judge read Counts VII and VIII and asked petitioner whether he had committed "those crimes" to which the response was "Yes, sir." Nothing was said about the underlying facts.
In his petition under § 2255, petitioner alleged facts from which a trier of fact could conceivably have found entrapment, and further alleged that when he appeared before the second judge he
did not then understand that if in fact he had been entrapped that he could plead not guilty and have a trial on the issue of whether Maria Hernandez [who allegedly was acting on behalf of the government in ...