United States v. Provoo

• Decision Date: 12 May 1954
• Citation: 124 F. Supp. 185
• Parties: UNITED STATES of America, Plaintiff, v. John David PROVOO, Defendant.
• Court: U.S. District Court — Southern District of New York

124 F. Supp. 185

UNITED STATES of America, Plaintiff, v. John David PROVOO, Defendant.

United States District Court S. D. New York.

May 12, 1954.

J. Edward Lumbard, U. S. Atty. for the Southern Dist. of New York, New York City, for plaintiff.

George A. Spiegelberg, New York City, for defendant-petitioner.

NOONAN, District Judge.

The petitioner has been convicted and sentenced by this court, and now seeks an order vacating and setting aside the original and corrected judgments of conviction, and discharging him; or, in the alternative, granting him a new trial. The former request for relief is based on Title 28 U.S.Code, § 2255; the latter is based on Rule 33 of the Federal Rules of Criminal Procedure, Title 18 U.S. Code.

The appropriate portions of Section 2255 read as follows:

"§ 2255. Federal custody; remedies on motion attacking sentence

"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

"A motion for such relief may be made at any time.

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. * * *"

The pertinent provisions of Rule 33 are as follows:

"The court may grant a new trial to a defendant if required in the interest of justice. * * * A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case."

Thus, at the outset, it might be well to point out that, since the case in chief is now pending on appeal, this court is without authority to grant the motion for a new trial based solely on newly discovered evidence. Rule 33. We are limited to indicating our opinion as to the merits of the motion as we do at the conclusion hereof. Smith v. Pollin, 90 U.S. App.D.C. 178, 194 F.2d 349; U. S. v. Minkoff, 2 Cir., 181 F.2d 538. Thus, the jurisdiction of this court to grant the petitioner a new trial must rest on Section 2255.

The petitioner was convicted of four overt acts of treason committed in places outside of the jurisdiction of any particular state or district of the United States.

Article 3, Sec. 2, Clause 3 of the Constitution of the United States provides certain privileges, namely that:

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

Pursuant to this last provision, the First Congress enacted the first Crimes Act, April 30, 1790, c. 9, § 8, 1 Stat. 112, 114, the last part of which reads as follows:

"* * * and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought."

This statutory provision, varying only slightly through the years has come down to us today via the Act of 1825, 4 Stat. 118, c. 65, Sec. 14, Section 730 of the Revised Statutes, and Title 28 U.S. Code 1940 Ed. § 102. Having been included in the 1948 Revision of the Criminal Code, it became, and today still is, Title 18, U.S.Code, § 3238. This section reads as follows:

"The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought."

That this section applies to offenses committed in a foreign country (including treason), as well as offenses committed at sea, is thoroughly settled by virtue of the interpretation of former section 102 of Title 28 (from which it is derived) in the leading case of U. S. v. Chandler, D.C., 72 F.Supp. 230, affirmed 1 Cir., 171 F.2d 921, certiorari denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081, rehearing denied 336 U.S. 947, 69 S.Ct. 809, 93 L.Ed. 1103. It is, of course, true that many of the early cases concerned crimes committed on the high seas.

The issue of jurisdiction turns on the interpretation to be given to the words "found" or "first brought".

In the instant case, the petitioner was not in custody when he returned to the United States. He returned to the United States with the Army, received an Honorable Discharge, and re-enlisted in grade.

Subsequent to his re-enlistment, he remained in the United States; in fact, he had never left it again up to the time of his arrest after his discharge. The formal arrest took place at the point of discharge, Fort Jay on Governors Island in New York Harbor, where he had been brought by the Army from Fort Meade, Maryland.

It is thus essential to the jurisdiction, and hence the validity of the judgment of this court, that the petitioner be shown to have been "found" in this district. He alleges that he was "found" in Maryland by virtue of his claim that the Army took him into custody in Maryland, and brought him to New York for the sole purpose of having him tried here, and while it was acting as agent for the Department of Justice. That the petitioner never formally waived the venue requirement is clear.

It is apparent that the petitioner was not given a routine discharge unaffected by the desires of the Justice Department. The various exhibits annexed to the petition clearly establish this fact. Attention is especially called to Petitioner's Exhibit F.

Several factors seem clear, however. The Army would have discharged the petitioner regardless of the treason charge. The Justice Department had no authority to make the Army do anything it did not want to do. They are independent and equally exalted arms of the Executive branch of government. Since the petitioner was to be discharged anyway, the Army arranged to have it done in New York for the convenience of the Justice Department. The petitioner was not arrested or discharged by the Army for treason. He was not taken into custody by the Army for treason. The first official action taken against him for treason by way of arrest, taking into custody, etc., was done within the territorial limits of the Southern District of New York. The Army was not acting as the agent of the Justice Department, but rather was acceding to a request that the place of discharge be New York; accommodation is not agency. The first formal charges of treason were made in New York.

Getting back to the wording of the statute, there can be no argument that the petitioner was or was not "first brought" into any district. He came himself, and was not in custody in connection with the treason charge. Therefore, it is the word "found" that must be considered. Pedersen v. U. S., 2 Cir., 271 F. 187; U. S. v. Townsend, D.C., 219 F. 761; Kerr v. Shine, 9 Cir., 136 F. 61. Note also page 3 of the Petition of Mr. Provoo, here being ruled upon.

The word "found" in the current statute has been held, by analogy to the wording in Revised Statutes, Section 730, to mean the same as the word "apprehended" or "first apprehended" in the 1790 and 1825 Acts. See Kerr v. Shine, and U. S. v. Townsend, supra.

As these words have been interpreted through the years, their meanings have gradually become clearer. One of the earliest cases involving this interpretation was Ex parte Bollman and Ex parte Swartwout (decided together), 4 Cranch 75, 8 U.S. 75, 2 L.Ed. 554, in the year 1807. The prisoners, petitioning for writs of habeas corpus in this matter, were both convicted of treason in connection with the grandiose schemes of Aaron Burr. They were convicted by the Circuit Court for the District of Columbia, and, in discussing the venue, Chief Justice Marshall, speaking for the court said: 4 Cranch at pages 135, 136.

"That both of the prisoners were engaged in a most culpable enterprise against the dominions of a power at peace with the United States, those who admit the affidavit of General Wilkinson cannot doubt. But that no part of this crime was committed in the District of Columbia is apparent. It is, therefore, the unanimous opinion of the court that they cannot be tried in this district.

"The law read on the part of the prosecution is understood to apply only to offenses committed on the high seas, or in any river, haven, basin or bay, not within the jurisdiction of any particular state. In those cases there is no court which has particular cognizance of the crime, and therefore, the place in which the criminal shall be apprehended, or, if he be apprehended where no court has exclusive jurisdiction, that to which he shall be first brought is

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