Cox v. United States

• Decision Date: 05 November 1962
• Docket Number: No. 17033.,17033.
• Citation: 309 F.2d 614
• Parties: Robert G. COX, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

309 F.2d 614 (1962)

Robert G. COX, Appellant, v. UNITED STATES of America, Appellee.

No. 17033.

United States Court of Appeals Eighth Circuit.

November 5, 1962.

Robert G. Cox, appellant, pro se.

F. Russell Millin, U. S. Atty., Kansas City, Mo., and John Harry Wiggins, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before VOGEL and VAN OOSTERHOUT, Circuit Judges, and VAN PELT, District Judge.

VAN PELT, District Judge.

This case, brought under Title 28 U.S. C.A. § 2255, raises the claim that appellant, who appears pro se, is being unlawfully incarcerated. Appellant asks the vacation and reversal of the conviction under which sentence was imposed.

Appellant Cox and five others were indicted upon three counts in the Western District of Missouri. Following a trial and conviction, Cox appealed to this court. The affirmance is reported as Cox v. United States, 8 Cir., 284 F.2d 704. The opinion sets forth the contents of the indictment, a brief recital as to the evidence, and fully discusses the claimed errors.

Thereafter, a motion to vacate and set aside judgment and sentence was filed which began the proceedings now in this court.

Appellant claimed in the trial court that:

1) during the original trial testimony was received in the judge's chambers in his absence; and

2) the trial judge was aware before the verdict was reached of the contents of a probation report relating to appellant's prior criminal record and his so-called "ill name among his neighbors," in violation of his rights under Rule 32 (c) of the Federal Rules of Criminal Procedure.

In this court he claims violation of his constitutional rights under both the Fifth and Sixth Amendments to the Constitution, by the trial judge's receipt of testimony of government witnesses and a co-defendant in the court's chambers in his absence. Appellant alleges that he was denied permission to go into the court's chambers in violation of Rule 43, Federal Rules of Criminal Procedure.

With reference to the second point he now claims that the trial judge was so prejudiced that a fair trial with due process of law was impossible and that the trial judge had been his "bitter enemy" for the last sixteen years.

The trial court denied relief. We affirm.

The transcript of the testimony at the trial shows that on the first afternoon, after an objection by appellant's counsel that the government counsel was trying to impeach a government witness, the court announced a ten minute recess. The presiding judge then said: "Come into chambers, gentlemen." The official transcript then recites:

"(Whereupon, the following proceedings were had in court chambers, out of the presence and hearing of the jury:)".

The trial judge then asked the Assistant United States Attorney what he was trying to do and whether he was surprised. Upon hearing the answer he then asked the attorney to read into the record the grand jury testimony to which he was referring. The questions and answers read are set forth in the transcript as is the objection of counsel for appellant Cox, the objection being: "My only objection was that he is impeaching his own witness." This objection was overruled. This was assigned as error and is discussed in this court's prior opinion in this case.

Objection was not made at any time that the appellant Cox was not present. Error was not assigned in the former appeal raising the objection that the appellant Cox had not been present. The record nowhere gives support for appellant's contention that he was denied the right to be present. It does not appear that he asked to be present.

It is clear from reading the record that this was a conference with the attorneys and was not a part of the actual trial before the jury. It was held at the court's invitation to permit the trial judge to find out what government counsel was trying to do by his questioning, and, as it developed, to acquaint the trial judge with the nature of the testimony the government intended to offer. After returning to the courtroom, in the presence of the appellant and the jury, the questions and answers read to the court in chambers, were read. The recess and the proceeding in chambers were to protect the rights of the appellant Cox by not allowing a witness to be questioned in the jury's presence about matters which did not affect his testimony and which did not refresh his recollection. Such conferences are usual trial court procedure. Frequently, a trial judge will ask for an exhibit such as the grand jury transcript, take it to his chambers and alone and out of the presence of counsel, will read it and prepare for a ruling. The proceeding here was no different except that the judge had counsel present and instead of reading the transcript himself had counsel read it.

As stated, the record does not bear out appellant's claim that he was denied the right to be present. No request to be present is shown and objection was not made as to his absence when the trial resumed. He was not deprived of any of his rights in the trial before the jury.

This court, in Glouser v. United States, 296 F.2d 853, had before it in a Section 2255 appeal, a claimed violation of Rule 43, Federal Rules of Criminal Procedure, and held that the right to be present could be waived and further that the test "under a § 2255 proceeding is whether the appellant was deprived of the substance of a fair trial." We conclude that the proceedings which occurred in chambers were not in the nature of a trial at which, under Rule 43, the defendant is entitled to be present. It is not unusual for a judge to call counsel into chambers and discuss matters of evidence, the form of questions, instructions proposed, and other matters looking to a more orderly trial, without having a defendant present. Appellant's help was not needed by the judge in order to make a ruling. His presence could hinder an orderly discussion. This conference was not a part of the trial within the meaning of Rule 43.

We hold that appellant was not deprived of the substance of a fair trial in the holding of this conference in his absence.

Other courts have reached similar conclusions. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, the United States Supreme Court held, Mr. Justice Cardozo speaking for the Court, that the defendant in a murder trial was not assured, under the Fourteenth Amendment, the right to be present when the jury inspected the scene of the alleged crime. This was true even though at the view "the essential features may be pointed out by the counsel." It was there said:

"* * * The Fourteenth Amendment has not said in so many words that he must be present every second or minute or even every hour of the trial. If words so inflexible are to be taken as implied, it is only because they are put there by a court, and not because they are there already, in advance of the decision. Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results. `The due process clause does not impose upon the States a duty to establish ideal systems for the administration of justice, with every modern improvement and with provision against every possible hardship that may befall.\' Ownbey v. Morgan, 256 U.S. 94 supra, p. 110 41 S.Ct. 433, 65 L.Ed. 837. What is fair in one set of circumstances may be an act of tyranny in others. This court has not yet held that even upon a trial in court the absence of a defendant for a few moments while formal documents are marked in evidence will vitiate a judgment.* Cf. Commonwealth v. Kelly, 292 Pa. 418, 141 Atl. 246." 291 U.S. at pages 116, 117, 54 S.Ct. at page 336.

The footnote which appears at this point refers to two cases relied upon by appellant, namely, Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262, and Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 as follows:

"*What was said in Hopt v. Utah, supra, and Schwab v. Berggren, supra 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218 on the subject of the presence of a defendant was dictum, and no more. See this opinion, ante, p. 106 54 S.Ct. 332, 78 L.Ed. 678. We may say the same of Lewis v. United States, supra, with the added observation that it deals with the rule at common law and not with constitutional restraints."

The Snyder case was followed by Johnson v. United States, 318 U.S. 189, 201, 63 S.Ct. 549, 555, 87 L.Ed. 704, where Mr. Justice Douglas, speaking for the Court, stated:

"It is claimed that the expulsion of petitioner from the court room while counsel were arguing the question of the propriety of the cross-examination on his 1938 income deprived him of his right to be present during the trial. Cf. Snyder v. Massachusetts, 291 U.S. 97 54 S.Ct. 330, 78 L.Ed. 674. It is also urged that petitioner was denied the advice of counsel in that the court directed that when he resumed the stand he do so without having an opportunity to confer with his counsel about claiming the privilege. But there is a simple answer to these objections. Not only were no exceptions taken to these rulings; it also appears that they did not result in a loss of the privilege which the court had indicated it would recognize."

There is no difference of substance between objections relating to the propriety of cross-examination, and objections dealing with the propriety of impeachment or refreshment of recollection, so far as the right of a defendant to be present is concerned. The Court of Appeals for the Tenth Circuit has said:

"The final question is whether conferences of the court and counsel on questions of law at the bench or in chambers, out of hearing of the appellant and the jury, denied appellant his constitutional right to be present at every stage of the trial. In the first place, neither appellant nor his counsel made a specific request for appellant to be present at these conferences, and no

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