United States v. Steese , 144 F.2d 439 ( 1944 )

GOODRICH, Circuit Judge.

This is an appeal from an order of the District Court of the United States for the Eastern District of Pennsylvania denying a motion filed by the appellant, Frederick Steese, the object of which, in his words, was to have a conviction against him “declared null and void to the end that it be expunged from the records.” The petitioner’s original motion stated that he is incarcerated in the New York State Prison, having been convicted of the crime of forgery in that state. It said that he is serving an indeterminate term, the minimum of which is five years and the maximum ten years; five years of this term, he said, was imposed as additional punishment because there appeared upon his criminal record a notation to the effect that on July 24, 1935 he was convicted of the crime of forgery in the United States District Court for the Eastern District of Pennsylvania. The petition went on to say that this conviction in the United States District Court was illegally secured by the court, the said court “having ignored and disregarded his rights to the assistance of counsel for his defence” and offered as an exhibit a copy of the record of his conviction in the District Court. It was alleged, also, in the petition, that the prayed adjudication would enable appellant to ask the courts of New York for resentence as a first felony offender. The other averments of the petition are either irrelevant or argumentative conclusions of law. The document was submitted by petitioner, Steese, over his own signature without, so far as the record shows, the assistance of counsel.

The docket entries in the District Court of the United States for the Eastern District of Pennsylvania, June 1934 Term, in the case of United States of America v. Frederick Steese show the finding of a true bill on September 7, 1934, issue of a bench warrant September 14, 1934, plea of guilty July 24, 1935 and the imposition of sentence : “Imprisonment in a County Jail for term of one year — suspended. Probation three years.”

These are all the facts which the District Court had before it when the appellant’s motion was presented. There was no allegation there on the part of the petitioner that he was not guilty of the crime of which he was charged; no claim that he did not intelligently waive his right to counsel and did not knowingly plead guilty nor did he even allege that he was not advised of his right to counsel. However, in considering the petition the District Judge considered the matter “as though the defendant had pleaded that- he was not so advised by the Court [of his rights to counsel] and that such inquiry was not made.” The District Judge, however, found nothing to indicate that the right to counsel had not been intelligently waived. He therefore denied the motion.

We think that on the case as it was presented to the District Judge, including his assumption of fact in petitioner’s favor, that his conclusion was correct. The constitutional provision in the Sixth Amendment entitling one accused of crime to have the benefit of counsel has received renewed and extended force and application through recent decisions of the Supreme Court. It applies both to situations where defendant pleads not guilty and goes to trial¹ and where he pleads guilty.² At the same time “the constitution does not force a lawyer upon a defendant. He may waive his constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open.”

In order that an accused person’s constitutional rights to counsel be protected is it incumbent, to uphold a judgment of conviction, to show affirmatively that a defendant pleading guilty was advised of his rights to counsel and that he understandingly rejected the opportunity for legal advice? Unless we are prepared to go that far the District Judge committed no error in the hearing before him. That the constitutional requirement does go this far seems to be the point of view of the United States Court of Appeals for the District of Columbia.³ The Ninth Circuit, at about the same time, declared the contrary, saying “waiver of counsel is usually to be implied from the appearance of an accused without counsel, and his failure to request counsel. * * * This is particularly true when the accused by his plea of guilty has rendered a trial unnecessary.”⁴ While it is highly desirable to prevent subsequent disputes and misunderstanding that an accused, if he wishes to waive the right to counsel, should do so in a writing which becomes part of the record, we do not think the rule goes so far that .the absence of the waiver as a matter of record or the failure of the judge expressly to advise the defendant is, by itself, sufficient to invalidate a conviction on constitutional grounds.

The instant case, however, has grown more complicated since coming to this Court. Among the documents which the appellant puts before us is a recital which he denominates a “case history.” In it the appellant makes many allegations of fact. He says that in 1934 he was serving a sentence in a county prison in Pennsylvania for the crime of uttering a worthless check, a misdemeanor under Pennsylvania law and no crime at all under federal statutes. While serving this sentence he states that he was visited by a person who described himself as an United States Postal Inspector who informed the defendant that he had been indicted by a Federal Grand Jury for the crime of forging a Post Office money order. This person, defendant says, informed him that if he would sign a certain document he would undoubtedly receive a suspended sentence, but that if he decided to go to trial a sentence of ten years would likely be imposed upon him. At this time, says the petitioner, he was but nineteen years of age and incarcerated as a convicted prisoner for the first time. He says he signed the document without reading it. His statement continues to the effect that when he was released from the county prison he was taken by a Deputy United States Marshal before the United States District Court, was in the courtroom less than five minutes and that throughout the entire proceedings he spoke no words to anyone nor were any words except the sentence of the Court addressed to him. In the Government’s brief in this Court there is included a copy of a Federal Bureau of Investigation report on petitioner. In the document denominated “Reply Brief” the latter vigorously disputes the correctness of entries in this report.

We cannot find error on the part of the trial judge upon the basis of the allegation of facts brought to us for the first time. If the present litigation were a civil case, with an appellant represented by counsel, we should have no hesitation in refusing to consider as part of an appeal allegations of fact not presented to the court below. This case is on a different basis. The appellant represents himself to be a person of limited education, he is conducting his own appeal in forma pauperis. We should not, and do not, apply to him requirements imposed in the usual case for the purpose of securing orderly administration of judicial business. The appellant’s story may or may not be established as a fact if opportunity is given for hearing evidence and deciding facts. If his statements are found to be true the conclusion may well be that he was deprived of constitutional protection by the over-zealousness of Government officers. It may be true that even the setting aside of this conviction would not help the appellant; that he has been convicted of other felonies, and a petition to the New York courts must fail in any event. Appellant says that his record shown in the Federal Bureau of Investigation report is incorrect. We have no way of knowing whether it is or not. Only a hearing of the facts can establish the truth or falsity of these allegations.

There is a further point stressed by counsel for the Government. It is that there is no way by which this case, thus sought to be reopened by motion many years after the term has expired in which the judgment of conviction was had, may be opened. Certain it is that the time for motion for a new trial or for an appeal has long since passed.⁵ Habeas corpus is not available in this district as petitioner is not here confined.⁶ The Supreme Court has expressly refrained from passing upon the question whether district courts may exercise in criminal cases a correctional jurisdiction at subsequent terms.⁷ We think, however, a court is not helpless to remedy an injustice, if one is proved to have been committed, which goes to the extent of depriving a man of his constitutional rights. The motion in the particular case may be treated, for this purpose, as a modern substitute for the ancient writ of error coram nobis.⁸ We think the present question involving protection of one’s rights under the constitution is just as fundamental as those for the protection of which this time honored writ was devised and used in the early common law procedure.

The judgment of the District Court is, therefore, vacated and the case remanded to that court to give the petitioner an opportunity to present evidence to establish his allegations of fact which would show that his original conviction was in violation of his rights under the Sixth Amendment of the Constitution of the United States.

1 Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; see also Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435.

2 Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830.

3 Evans v. Rives, 1942, 75 U.S.App.D.C. 242, 126 F.2d 633; the opinion of the court collects the recent federal decisions on the subject. The citations need not be repeated here.

4 O’Keith v. Johnston, 9 Cir., 1942, 129 F.2d 889, 890.

5 See rules 2 and 3 of the Rules of Criminal Procedure, 18 U.S.C.A. following Section 688.

6 United States ex rel. Harrington v. Schlotfeldt, 7 Cir., 1943, 136 F.2d 935; Jones v. Biddle, 8 Cir., 1942, 131 F.2d 853, certiorari denied, 1943, 318 U.S. 784, 63 S.Ct. 856, 87 L.Ed. 1152, rehearing denied, 1943, 319 U.S. 780, 784, 785, 63 S.Ct. 1027, 1325, 1431, 87 L.Ed. 1725, 1728; United States ex rel. Belardi v. Day, 3 Cir., 1931, 50 F.2d 816.

7 United States v. Mayer, 1914, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129.

8 For a discussion of the writ by a modern case authority see Orfield, The Writ of Error Coram Nobis in Civil Practice (1934) 20 Ya.L.Rev. 423.