Taylor v. United States
| Citation | 179 F.2d 640 |
| Decision Date | 09 February 1950 |
| Docket Number | No. 12385.,12307,No. 12272,12272,12385. |
| Parties | TAYLOR v. UNITED STATES. TAYLOR v. SQUIER, Warden (two cases). |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
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Herbert A. Waterman, San Francisco, Cal., Earl W. Taylor, in pro. per., for appellant.
Frank J. Hennessy, U. S. Attorney, Robert B. McMillan, Asst., U. S. Atty., Ernest R. Mortenson, Sp. Attorney, Bureau Internal Revenue, San Francisco, Cal., for the United States.
J. Charles Dennis, U. S. Attorney, Guy A. B. Dovell, Asst. U. S. Attorney, Tacoma, Wash., for appellee Squier.
Before STEPHENS, HEALY and BONE, Circuit Judges.
Three appeals involving the same litigant were consolidated for hearing and disposal on appeal.
Earl W. Taylor was indicted in the United States District Court for the Northern District of California, Southern Division, on four counts for violations of the Internal Revenue Code. He pleaded guilty to count two, whereupon the United States Attorney moved for, and was granted, dismissals of the remaining three counts. After imposition of sentence appellant moved to vacate the judgment and set aside the sentence on the grounds that at the time of arraignment he was mentally incompetent, and that at the time of judgment and sentence the trial court was biased and prejudiced against appellant. This appeal is from the order denying the motion.
Prior to ruling on the motion the trial court appointed two reputable psychiatrists (one of whom was named on the recommendation and suggestion of appellant's counsel who ably represented appellant at every stage of the proceedings below) who conducted an examination into appellant's mental condition. They reported that he was highly neurotic but was legally and mentally competent and had been so at the time of sentence and the time of plea and prior thereto. The trial court so found and the record clearly substantiates this finding.
No affidavit of bias and prejudice was filed, and had one been filed at this stage of the proceedings we think it would have been lacking in the timeliness required by 28 U.S.C.A. § 144. A defendant cannot take his chances with a judge and then, if he thinks that the sentence is too severe, secure a disqualification and a hearing before another judge. However, appellant argues that in this case the prejudice grew out of irrelevant and prejudicial hearsay testimony given (over objection) subsequent to the plea and prior to sentence by an agent of the Internal Revenue Bureau which testimony related to alleged unlawful activities which had no exact relation to the crime charged and for which he had never been convicted; that due process of law requires an unbiased tribunal and fair procedure at every stage including pre-sentence proceedings, and that a sentence based in part upon such testimony should be set aside, else the denial of liberty will be without due process of law.
Rule 32 of the Criminal Rules, 18 U.S.C.A., gives the court very wide discretion regarding matters it may take into consideration in determining punishment. Due process of law does not limit the contents of a pre-sentence report to information which would be admissible under rules of evidence applicable to the trial, Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, rehearing denied 337 U.S. 961, 69 S.Ct. 1529. The testimony called for by the court was not inappropriate for its consideration and the fact that it was taken in open court (and the witness cross-examined by appellant's attorney) rather than in chambers or in a written report cannot be said to have injured appellant. In any event, appellant's record of prior criminal convictions fully justified the maximum sentence which was imposed.
The trial court correctly denied the motion.
After Taylor was taken to the United States Penitentiary at McNeil Island, Washington he filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Washington, Southern Division, basing it on the ground that his imprisonment was premature because an appeal was pending and on the additional ground that the prison rules, which prevented access to lawbooks necessary to prepare his appeal, denied him due process of law. This appeal is from the order dismissing that petition.
No appeal was taken from the judgment under which appellant was convicted; as indicated above, the only appeal was from the order denying a motion to vacate the sentence. Therefore, Rule 38 of the Criminal Rules providing for relief pending review had no application. His imprisonment was not premature.
It is not within the province of the courts to supervise the treatment of prisoners in the penitentiary, but only to deliver from prison those who are illegally detained there. Shepherd v. Hunter, 10 Cir., 163 F.2d 872; Sarshik v. Sanford, 5 Cir., 142 F.2d 676. Prison rules concerning the use of lawbooks could not change the legality or illegality of appellant's detention.
The trial court correctly dismissed the petition.
This appeal is from an order of the United States District Court for the Western District of Washington, Southern Divison, dismissing another petition for a writ of habeas corpus. Ground for the petition was that the indictment under which appellant was convicted failed to state an offense because the section of the Code under which the indictment was laid had been repealed by implication by subsequent amendments to the Internal Revenue Code.
The indictment charged appellant with, in...
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