203 F.

2d 284

UNITED STATES,
v.
PARRINO.
No. 187, Docket 22603.

United States Court of Appeals

Vine H. Smith, Brooklyn, N.Y., for appellant.

Parrino appeals from an order of Judge Ryan, dismissing a motion made under
Section 2255 of the Civil Code 1 to vacate a judgment of conviction entered on
December 13, 1951. The motion was a sequel of our decision in the same case,
rendered on March 7, 1950, and reported in 2 Cir., 180 F.2d 613. An
indictment, returned in October 1948, charged Parrino in two counts: the first,
for kidnapping and holding for ransom one, Rozen, a French seaman; and, the
second for conspiracy to commit that crime.2 Rozen had been kidnapped in
August 1934, and an indictment was filed in September of that year against a
number of persons- Parrino among them- some of whom were tried and
convicted. Parrino absconded, and while he was in hiding Judge Knox, on
motion of the District Attorney, entered a nolle prosequi on the indictment in
November 1937. Parrino then came back to his home in Brooklyn in 1940 and
lived there openly until he was discovered and indicted in 1948, as we have just
said. He was brought to trial and raised the defence of the Statute of
Limitations which the judge overruled because he held that the crime was
punishable by death.3 In charging the jury he told them that, if they found that

Rozen had not been 'liberated unharmed' they were to say whether they
recommended the death penalty. They returned a verdict of guilty on both
counts without any such recommendation, and the judge imposed a sentence of
twenty-five years. We reversed this conviction, because we held that the crime
was not punishable with death unless the kidnapped person had not been
'liberated unharmed,' that the period of limitation was three years, unless he had
not been so 'liberated,' that it did not appear whether or not he had been, and
that in the absence of such a finding we could not say that the Statute of
Limitations had not barred the indictment.
2

When the case came on for trial again before Judge Leibell, Parrino entered a
plea of guilty on the conspiracy count, apparently upon tacit agreement of the
prosecution that the substantive count should be withdrawn. When questioned
by the clerk, Parrino declared that he understood the charge and would plead
'on one condition,' which, however, he withdrew after he had talked with his
attorney who was in court. After an adjournment of two weeks the case came
on for sentence before Judge Samuel H. Kaufman, and both the prosecuting
attorney and Parrino's made statements at length to the judge. That of the
prosecuting attorney gave a detailed account of the facts that included torture of
Rozen by the conspirators to force him to declare that he had stolen a package
of heroin that the conspirators had been expecting to receive from an incoming
steamer on which Rozen had been serving. In his reply Parrino's attorney stated
in excuse that Parrino, though present at the torture of Rozen, did not
'participate in any of the inhuman acts,' and did not know 'what he was doing
there.' He added that 'there was considerable testimony that he,' Rozen, 'was
released unharmed'; from which he concluded that 'it could very well be that
upon retrial this man would have gone free.' He then addressed himself to
persuading the judge to impose a light sentence, saying among much else: 'Mr.
Parrino is in that category of one who was not the main culprit, and being in the
same status with this other one of three years, would not ordinarily get more
than three years.' Parrino was of course in court at the time, and there was no
evidence that he could not understand English. Upon these statements of the
attorneys and upon the prosecution's withdrawing the substantive count, the
judge imposed a sentence of two years, which will be followed by deportation,
a consequence that under the circumstances will be substantially the equivalent
of adding the punishment of exile to that prescribed by the statute.

Seven months later, on July 30, 1952, Parrino retained a second attorney who
made the motion now at bar, to vacate the sentence under Sec. 2255. It is
somewhat difficult to spell out from the attorney's supporting affidavit what are
the grounds for this application; certainly it contained nothing that had any
bearing upon those mentioned in Sec. 2255; and- what is more important-

nothing to intimate that Parrino did not understand that he was admitting that
Rozen was not 'liberated unharmed.' Judge Ryan denied the motion because the
indictment had alleged that it was a part of the conspiracy that the kidnappers
should 'beat and torture' Rozen, and because he thought that enough to make
the crime punishable with death. Hence a plea of guilty tolled the three years
Statute of Limitations. Parrino took on appeal by Mr. Vine H. Smith, his third
attorney, from this order and that is the appeal before us. In his brief Mr. Smith
argues that the motion should be taken as made, not only under Sec. 2255, but
also under Criminal Rule 32(d) 'to withdraw a plea of guilty * * * to correct
manifest injustice * * * after sentence'.
4

This aspect of the appeal we will consider first, assuming, arguendo, that the
motion may be treated, as though made under that Rule. Even so, we cannot
find anything either in the colloquy that took place when Parrino entered the
plea, or in his second attorney's affidavit in the district court that makes it
'manifest injustice' to let the plea stand, except that, as we have said, Parrino
and his wife and child, both citizens, will be exiled. Whatever may be our
personal feelings about the severity of that penalty, obviously they should not
intrude into our decision. The only fact that is possibly relevant is that he did
not understand that the plea was an abandonment of his chance to set up the bar
of the statute. We cannot, of course, know what he personally supposed, but he
was twice represented by attorneys, loyal so far as appears, who both consented
to his entering the plea, and who, if they understood our opinion at all, must
have realized that the only issue was the Statute of Limitations, and that that
turned upon whether Rozen had been 'liberated unharmed.' The first attorney
did indeed say that on another trial it might appear that Rozen had not been
'harmed,' but that itself showed that he meant to abandon that issue when he let
Parrino enter the plea. The second attorney, whose affidavit, as we have said,
did not suggest that Parrino did not know that the bar of the statute depended
upon whether Rozen had been 'liberated unharmed', merely dilated on the
injustice of tolling the limitation for so long a time. Finally, in the brief on
appeal in this court Mr. Smith does not, and could not, say that the record
shows that Parrino pleaded guilty under a mistaken belief that he was misled
into admitting what was not the truth, but he argues that 'there is substantial
doubt as to whether the defendant did understand all these implications of his
plea.' Perhaps he did not, but there is not a shadow of affirmative support for
such an assumption; and the most that can be said is that he may not have
understood the effect of his plea. Yet before Judge Leibell Parrino himself, in
answer to the clerk's question whether he wished to change his plea, did so as
we have seen, after imposing a 'condition' that he withdrew. Certainly that does
not suggest an inadequate understanding of English. Besides, it would be unfair
to his first two attorneys to assume that they did not explain his position to him.

Finally, even though he did not know that his plea would result in deportation,
it would not result in 'manifest injustice' to hold him to it, if in fact Rozen was
not 'liberated unharmed,' and nowhere in the record before us had Parrino said
that he was not. Hence, assuming that we are free to transform the motion into
one made under the Rule, it would fail. Whether on a new record Parrino can
support such a motion is another matter, not now before us.
5

It remains to consider whether the record, i.e., the second count of the
indictment and the plea of guilty, will sustain the conviction without any
evidence as to whether Rozen was 'liberated unharmed.' On its face the
indictment showed that the conspiracy had ended more than three years before
the indictment was filed. Literally this may not be true; but we cannot take
seriously the possibility that such a conspiracy entered into in August, 1934,
had not ended before the date when the indictment was found: October 19,
1948. In 1872 the Supreme Court held in United States v. Cook, 17 Wall. 168,
179, 21 L.Ed. 538, that 'accused persons may avail themselves of the statute of
limitations by special plea or by evidence under the general issue, but that
courts of justice * * * will not quash an indictment because it appears on its
face that it was not found within the period prescribed.' That decision has
remained undisturbed for over 80 years, and it is therefore still the rule, unless
Criminal Rules have changed it, and we do not think that they have. Rule 12(a)
abolished all defensive pleadings except 'not guilty,' and provided that 'defenses
* * * which heretofore could have been raised' by demurrer 'shall be raised only
by motion to dismiss.' From that it follows that, since the question decided in
United States v. Cook, supra, could not be raised by demurrer under the old
practice, it may not now be raised by motion to dismiss and, if so, it must be
raised by the plea of 'not guilty.' In short, the law is the same as before except
that the defence of the statute may no longer be raised by 'special plea,' such
pleas having been abolished. Thus, as we see it, if the plea stands, the defence
of the Statute of Limitations is out of the case, and the only question open is
whether Parrino shall be allowed to withdraw it.

Judge Ryan did not indeed dispose of the case in quite this way. As we
understand his opinion, he supposed that since the plea admitted that it was a
part of the conspiracy that the accused should 'beat and torture' Rozen, the
crime alleged was one punishable by death, and, if it was punishable by death,
there was no period of limitation. This reasoning presupposed that the court
could decide whether the indictment was barred by the Statute of Limitations
by an inspection of the pleadings, which, as we have seen, we think incorrect.
That is an error that we might feel free to disregard the express ruling that, if a
conspiracy contemplates returning the victim not 'unharmed,' the punishment
may be death, whether he was, or was not, in fact 'liberated unharmed,' or

indeed whether the conspiracy went so far as even to kidnap him at all. We do
not so read the section; on the contrary we understand that under Sec. 1201(c),
as well as under Sec. 1201(a), the punishment of death is reserved for cases in
which the victim has been in fact kidnapped and not 'liberated unharmed.' That
does not mean that all occasions in which a number of persons conspire to
kidnap, and do kidnap, a person and do not 'liberate' him 'unharmed' are within
both subsections. It is a condition in subsection (a) that the victim shall be in
fact transported in interstate commerce, and that is not a condition in subsection
(c). Thus, a conspiracy contemplating such transportation is enough to
constitute a violation of subsection (c), though not to impose the death penalty
unless the victim has been kidnapped and not 'liberated unharmed.' Our reading
of subsection (c) which might be satisfied without any transportation whatever,
does not therefore mean that there is no distinction between the subsections
except that (a) requires only one principal and (c) requires several. The crimes
are quite separate, but the imposition of the death penalty in each depends upon
the same facts. Had Parrino shown that Rozen was not kidnapped, or that,
having been kidnapped, he was 'liberated unharmed,' the crime charged in the
second count would not have been punishable by death, and would therefore
have been barred by the three year statute.
7

We repeat: nothing we say is to be taken as bearing on the question whether

Order affirmed.

Sec. 2255, Title 28, U.S.C

Sec. 1201(a) and 1201(c), Title 18 U.S.C

Sec. 3281, 3282, Title 18, U.S.C