129 F.2d 199 (10th Cir. 1942), 2505, Gilmore v. United States

Docket Nº:2505.
Citation:129 F.2d 199
Case Date:June 29, 1942
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 199

129 F.2d 199 (10th Cir. 1942)




No. 2505.

United States Court of Appeals, Tenth Circuit.

June 29, 1942

Page 200

constitutional right of defendant was invaded by court's failure to assign counsel before return of indictment by grand jury so as to entitle defendant to a writ of habeas corpus ad testificandum. U.S.C.A.Const. Amend. 6.

Page 201

Wm. Hedges Robinson, Jr., of Denver, Colo., for appellant.

Cleon A. Summers, U.S. Atty., of Muskogee, Okl., for appellee.

Before PHILLIPS and HUXMAN, Circuit Judges, and SAVAGE, District judge.

SAVAGE, District Judge.

The appellant, Dewey Gilmore, prosecutes this appeal from the judgment of the District Court of the United States for the Eastern District of Oklahoma overruling his motion to vacate judgment and sentence and denying his petition for a writ of habeas corpus ad prosequendum.

In May, 1935, an indictment was returned in the United States District Court for the Eastern District of Oklahoma charging Gilmore and others in two counts with the armed robbery of a national bank. When arraigned on July 26, he entered a plea of not guilty. On September 17, Mr. Don Cameron was appointed to represent Gilmore and the case was set for trial on October 16. An order was entered on October 4 striking the case from the trial assignment. This case was docketed as cause No. 19375.

On October 2, 1935, a second indictment containing two counts was returned against Gilmore and others, which was docketed as cause No. 19632. This indictment was identical with that returned in case No. 19375, except that Jack Miller was added as a defendant. Gilmore and co-defendants, Cooper and Short, were arraigned on October 4, 1935, and each entered a plea of not guilty. Mr. Mosely DeGraffenreid appeared as attorney for Gilmore and his co-defendant Cooper. Mr. W. F. Rampendahl appeared as attorney for the defendant Short. The court upon the same date entered an order setting the case for trial on November 25, 1935. The trial resulted in a verdict of guilty on both counts of the indictment. The court on December 9 sentenced Gilmore to imprisonment for a term of twenty years on the first count and twenty-five years on the second count, to run concurrently.

On February 19, 1936, the court dismissed case No. 19375 in response to a suggestion by the District Attorney that it was a duplicate of case No. 19632 in which Gilmore had been convicted and sentenced.

Gilmore, on September 14, 1941, filed his motion to vacate the judgment and sentence. The grounds upon which he relied were:

That he had been induced by fraud, duress and coercion to sign a waiver of immunity from prosecution for any offense disclosed by him in his testimony given in the presence of the grand jury; that he was denied the advice of counsel before signing such waiver of immunity and testifying before the grand jury; that he did not therefore willingly and effectually waive immunity from prosecution and consequently was immune from prosecution as a result of testifying before the grand jury.

That he did not have the effective aid of counsel in the trial of the case.

He incorporated into his motion a petition for writ of habeas corpus ad prosequendum in order that he might be present to testify at a hearing thereon.

The Government filed a response denying that Gilmore was persuaded to sign the waiver of immunity by fraud, duress or coercion and denying that he was not properly represented by counsel at the trial of the case. It alleged that Gilmore asked to be permitted to go before the grand jury and testify and was only permitted to do so after he had signed a waiver of immunity from prosecution; that he was represented at such trial by Mr. Don Cameron, a member of the bar at Muskogee, Oklahoma; that Mr. Cameron made an argument to the jury on behalf of Gilmore and that the rights of the defendant were fully protected throughout the trial. In addition, the Government asserted that Gilmore was not entitled to have a writ of habeas corpus ad prosequendum issued for him to be brought from Alcatraz prison in...

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