Opinion
No. 420, Docket 28418.
Argued September 5, 1963.
Decided September 12, 1963.
Arnold Bauman, New York City (Morton J. Schlossberg, New York City, on the brief), for defendant-appellant.
Thomas J. Cahill, Asst. U.S. Atty., S.D.N.Y., New York City (Robert M. Morgenthau, U.S. Atty., and James M. Brachman and Robert J. Geniesse, Asst. U.S. Attys., New York City, on the brief), for appellee.
Before CLARK, WATERMAN, and FRIENDLY, Circuit Judges.
Smiley, a member of the Canadian Bar and a man knowledgeable in SEC matters, pleaded guilty to counts of mail fraud and violation without knowledge of SEC Rule 10b-5. Thereafter he made a motion to withdraw his plea of guilt, which Judge Metzner denied in a reasoned opinion, finding that the prosecution had made no promises of leniency which were not fulfilled.
Judge Metzner acted within his discretion in denying the motion for withdrawal of the plea, since Smiley failed to meet his burden of establishing grounds for the withdrawal. See United States v. Lester, 2 Cir., 247 F.2d 496. Smiley's further argument that the Government is estopped from contesting his motion for withdrawal is similarly without merit.
Smiley also moved orally and without supporting papers that Judge Palmieri should disqualify himself from sentencing him, claiming prejudice from other actions taken by the judge in this extensive mail fraud conspiracy centering around the notorious Lowell M. Birrell. We find the motion without substance, and Judge Palmieri committed no error in denying it. See, e.g., Barnes v. United States, 9 Cir., 241 F.2d 252.
Affirmed.