Johnston v. United States, 15907.

• Decision Date: 24 April 1958
• Docket Number: No. 15907.,15907.
• Parties: Nelson Gene JOHNSTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

254 F.2d 239 (1958)

Nelson Gene JOHNSTON, Appellant, v. UNITED STATES of America, Appellee.

No. 15907.

United States Court of Appeals Eighth Circuit.

April 24, 1958.

Nelson Gene Johnston, pro se.

Edward L. Scheufler, U. S. Atty., and Paul R. Shy, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before SANBORN, JOHNSEN, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

Three counts of an information charged Nelson Gene Johnston with unlawful possession of a narcotic drug on three separate occasions, knowing the same to have been imported into the United States of America, contrary to law, in violation of Title 21 U.S.C. § 174; three counts of the information charged Johnston with unlawful purchase of a narcotic drug, not being in the original stamped package or from the original stamped package, in violation of Title 26 U.S.C. § 4704(a); and three counts of the information charged Johnston with unlawful sale of a narcotic drug in violation of Title 26 U.S.C. § 4705(a). Upon his plea of guilty, which was entered on the 21st day of February, 1957, the court imposed a sentence of five years of imprisonment on Count One, and five years of imprisonment on each of the other eight counts, to run concurrently with the sentence imposed under Count One.

On August 28, 1957, Johnston filed an instrument styled "Motion for new trial and vacating of judgment," which the United States District Court treated as a motion under Title 28 U.S.C.A. § 2255. This motion was overruled, and from that order Johnston has perfected his appeal to this Court.

In his motion appellant contended that he had employed counsel, but that through the influence exerted by a narcotic agent, he was persuaded to forgo the services of the lawyer chosen by him, and to employ one recommended by the narcotic agent; that this resulted in incompetent and inadequate legal representation in the original case. Appellant pursues the point in this Court.

From the record of the original proceeding, it appears that on the hearing of the charge, appellant appeared in person and by Mr. Francis Roach, an attorney employed by him. Mr. Roach was asked if he had discussed the matter of waiving indictment with his client, and replied, "I have, and he desires to waive indictment on all nine counts." Mr. Roach, in response to another question, stated that he had gone over the information with appellant; that he had explained the nature of the charges; that his client understood each count of the information and that he, Johnston, would waive formal reading thereof. The record further establishes that Johnston and his attorney signed the document whereby Johnston waived in open court prosecution by indictment and consented that the proceeding could be by information instead of indictment.

The motion, the files and records herein, fairly considered, do not substantiate the charge that a narcotic agent perpetrated a plan or scheme designed to prevent appellant from being represented by a lawyer of his own choosing. In ruling the motion, the court found that appellant appeared in court "with counsel of his own choosing, who had extensive experience representing clients both in the state and federal courts, * * *."

From the foregoing it is abundantly clear that appellant's constitutional right to "* * * have the Assistance of Counsel for his defence.", Amendment VI, Constitution, was not violated. Story v. United States, 8 Cir., 185 F.2d 952; Burgett v. United States, 8 Cir., 237 F.2d 247, 251, certiorari denied 352 U.S. 1031, 77 S.Ct. 596, 1 L.Ed. 2d 599; Maye v. Pescor, 8 Cir., 162 F.2d 641; Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, certiorari denied 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002, in which the court in an opinion strongly documented by citations, disposed of a similar question by stating, 148 F.2d loc. cit. 670:

"For these reasons we think absence of effective representation by counsel must be strictly construed. It must mean representation so lacking in competence that it becomes the duty of the court or the prosecution to observe it and to correct it. We do not believe that allegations even of serious mistakes on the part of an attorney are ground for habeas corpus standing alone. The cases where the Supreme Court has granted habeas corpus on the ground that there was no fair trial support this interpretation of the absence of effective representation. They are all cases where the circumstances surrounding the trial shocked the conscience of the court and made the proceedings a farce and a mockery of justice."

Appellant also urges that because the Government failed to introduce evidence establishing his guilt, the judgment cannot stand. He attempts to elaborate on this assignment by stating there was no "marked" money, a prerequisite (so says appellant) to a conviction for sale; and that the Government "informer" was a known drug addict whose testimony would have been without value in a "court of justice."

Contentions, similar in effect, where the judgment followed a plea of guilty, have been the subject of concern and consideration of the Courts in other cases, and have resulted in the rule being promulgated that where one enters a plea of guilty to the charge there remains no issue to submit to a jury. By such a plea, the accused admits...