Hudspeth v. McDonald, 2239.

• Decision Date: 17 July 1941
• Docket Number: No. 2239.,2239.
• Citation: 120 F.2d 962
• Parties: HUDSPETH, Warden, v. McDONALD.
• Court: U.S. Court of Appeals — Tenth Circuit

120 F.2d 962 (1941)

HUDSPETH, Warden, v. McDONALD.

No. 2239.

Circuit Court of Appeals, Tenth Circuit.

June 12, 1941.

Rehearing Denied July 17, 1941.

Homer Davis, of Topeka, Kan. (Summerfield S. Alexander, of Topeka, Kan., on the brief), for appellant.

John Rhodes, of Kansas City, Mo. (Bowersock, Fizzell & Rhodes, of Kansas City, Mo., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

This is an appeal by the government from a decision of the District Court of the United States for the District of Kansas releasing Cassius McDonald, the appellee, from the Federal Penitentiary on a writ of habeas corpus.

Appellee was indicted with others in the District Court of the United States for the District of Minnesota, Third Division, in an indictment charging a conspiracy to violate 18 U.S.C.A. §§ 408a, 408c. The indictment charged:

"That heretofore, to-wit: Between September fifteenth, A. D., 1933, or thereabouts, and January fifteenth, A. D. 1935, or thereabouts, the Grand Jurors being unable to fix the period of time more definitely, at the City of Saint Paul, in the County of Ramsey, in the State and District of Minnesota, and within the jurisdiction of this Court, and elsewhere in said State and District of Minnesota at places therein unknown to the Grand Jurors, and at the town or city of Bensenville, in the County of Du Page, in the State of Illinois, and elsewhere in said State of Illinois at places therein to the Grand Jurors unknown, and at various other places specifically mentioned hereinafter,

One Alvin Karpavicz, alias Alvin Karpis, and

One Arthur Barker, alias `Doc\' Barker, and

One Volney Davis, and

One Harry Campbell, alias George Winfield, and

One William Weaver, alias Phoenix Donald, and,

One William J. Harrison, and

One Harry Sawyer, alias Harry Sandlovich, and

One Byron Bolton, alias Monty Carter, and

One Elmer Farmer, and

One Harold Alderton, alias Harold Allerton, and

One Cassius McDonald, alias `Cash\' McDonald,

then and there being, all of the foregoing persons being defendants herein and hereinafter being referred to individually and/or collectively as `defendants,' unlawfully did conspire, confederate and agree together and with each other and with various and divers other persons then and there being whose names are unknown to the Grand Jurors and with the following late decedents, namely,

One Fred C. Goetz, alias George Ziegler, and

One Fred Barker,

both of whom were living beings during the period of time hereinbefore alleged, to violate the provisions of that certain Act of Congress approved June 22, A. D. 1932, `Forbidding the transportation of any person in interstate or foreign commerce, kidnap, or otherwise unlawfully detained * * *.'" 47 Stat. 326.

Then followed a detailed statement of the acts of the conspirators which, in substance, included a conspiracy to kidnap Edward George Bremer in the city of St. Paul, Minnesota, the selection of a hideout outside of the state of Minnesota, and his transportation thereto and retention therein. It was agreed that they would hold him for a ransom of $200,000; that they would communicate by means of notes and letters with friends of the victim with reference to the payment of the ransom money and his release; that after the payment of the ransom money they would return the victim secretly by automobile to the state of Minnesota from their hide-out in the state of Illinois; that after having collected the ransom money, in order to avoid discovery and arrest in connection therewith and to the end that they might safely realize and enjoy the profits and fruits of their crime, they would convert the ransom money at various places in the United States and Cuba, deemed by them to be propitious for that purpose, into other money and currency which they would be able to negotiate and pass readily and with safety to themselves in the regular and ordinary channels of trade, commerce and business; and that to accomplish the conversion and disposal and exchange of the ransom money they would aid, abet, assist and counsel one another, in that connection and to that end.

The indictment set forth fourteen overt acts committed in consummation of the conspiracy. Overt Act 11 charged that on September 2, 1934, appellee traveled from Miami, Florida, to Havana, Cuba, to negotiate the exchange of ransom money. Overt Act 12 charged that on September 5, 1934, at Havana, Cuba, appellee exchanged a portion of the ransom money paid to defendants for the release of Edward George Bremer, for $11,000 more or less, in gold. Overt Act No. 13 charged that on September 9, 1934, appellee and defendant William J. Harrison traveled from Miami, Florida, to Havana, Cuba, to negotiate for the exchange of ransom money paid for the release of Edward George Bremer. Overt Act No. 14 charged that on September 10, 1934, at Havana, Cuba, appellee exchanged $72,000 more or less, of ransom money paid to defendants for the release of Edward George Bremer for other currency of the United States of one thousand and five hundred dollar denomination.

Appellee was tried jointly with two other defendants. He was found guilty and appealed from the judgment and sentence of the court to the Eighth Circuit Court of Appeals, where his conviction was affirmed. McDonald v. United States, 89 F.2d 128.

The theory upon which appellee sought release by writ of habeas corpus was that the District Court in Minnesota had no jurisdiction of the offense charged against him in the indictment and that the judgment of the court was void for the further reason that appellee had been denied the right to be effectively represented by counsel, as guaranteed by the Constitution of the United States Amend. 6. The trial court in the habeas corpus proceeding adopted these contentions, holding that the District Court in Minnesota was without jurisdiction and that the judgment was void because appellee did not have the effective assistance of competent counsel.

The scope of the writ of habeas corpus is well defined. The questions that may be explored through the medium of the writ are limited. It has been said time without number that the writ may not be made a substitute for an appeal from a sentence of conviction and that questions that should be raised by an application for review of the judgment of conviction may not be challenged by writ of habeas corpus. It has been held further without exception that the scope of review by habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged. It is only when the court has no jurisdiction to try a petitioner or when in a proceeding his fundamental constitutional rights have been violated that resort may be had to the writ. These principles are so elemental and so universally accepted that this opinion will not be encumbered with a list of authorities sustaining them.

Here appellee availed himself of all legal rights granted by law to challenge the judgment of conviction. He appealed to the Circuit Court of Appeals, and when the judgment of the lower court was affirmed, filed a petition for rehearing. When this was denied, he applied to the Supreme Court for a writ of certiorari and also asked for rehearing when the application for the writ was denied, and as a last resort he made application to the Supreme Court for a writ of coram nobis. 311 U.S. 683, 61 S.Ct. 64, 85 L.Ed. ___.

Having exhausted every available remedy for review of the judgment of conviction and after having served several years of the sentence imposed by the court, he now seeks his release by writ of habeas corpus. If, as a matter of law, it can be said that the trial court in Minnesota was without jurisdiction to try him or that in the trial fundamental constitutional rights were denied him, he may do this.

Appellee in his brief states that: "No place or venue was laid anywhere in the indictment against McDonald." The indictment specifically charged that appellee and the other defendants did "at the city of Saint Paul, in the County of Ramsey, in the State and District of Minnesota, and within the jurisdiction of this Court, and elsewhere in said State and District of Minnesota at places therein unknown to the Grand Jurors, and at the town or city of Bensenville, in the County of Du Page, in the State of Illinois, and elsewhere in said State of Illinois at places therein to the Grand Jurors unknown, and at various other places specifically mentioned hereinafter * * *." Then follows a detailed statement of the acts of conspiracy indulged in by the defendants, including Cassius McDonald, in said places, which acts included as a part of the conspiracy, plans to change the ransom money into other money. There is a specific allegation of the venue of the offense charged in the indictment against McDonald.

Appellee states in his brief that: "Appellee should be tried, if at all, in Florida where, in fact, indictments were lodged against him, and where in fact, if Appellee did in fact conspire, the conspiracy took place and the acts took place. The conspiracy, if it in fact existed, and the acts, if they were in furtherance of a conspiracy, took place in Florida. There is not a scintilla of evidence of any thing alleged or proved having been in anywise connected with Minnesota, but, on the contrary, the Government has, in its proof, nailed the conspiracy and acts, if they existed, to Florida and Cuba."

The basis for this statement apparently is that the overt acts with which appellee was charged had their inception in Florida. But appellee was not charged with the offense of receiving or exchanging ransom money. He was charged with having conspired with others in the state of Minnesota to violate 18 U.S.C.A. § 408a. The specific acts which the indictment charged that he committed in Florida and Cuba were overt acts committed in furtherance of the conspiracy. While it is necessary to...