Hopkins v. United States

• Decision Date: 21 April 1965
• Docket Number: No. 17844.,17844.
• Citation: 344 F.2d 229
• Parties: Gordon R. HOPKINS and Joseph J. Bongiorno, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

344 F.2d 229 (1965)

Gordon R. HOPKINS and Joseph J. Bongiorno, Appellants, v. UNITED STATES of America, Appellee.

No. 17844.

United States Court of Appeals Eighth Circuit.

April 21, 1965.

Gordon R. Hopkins and Joseph J. Bongiorno, appellants pro se.

Donald A. Wine, U. S. Atty., Des Moines, Iowa, for appellee.

Before VOGEL and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

REGISTER, District Judge.

This appeal is from a final order filed September 1, 1964, denying appellants' motion to vacate and set aside judgment and sentence pursuant to 28 U.S.C.A. § 2255.

The bases of appellants' present motion,¹ as therein set forth, are in the form of questions, and are as follows:

"I. Is a proceeding before a Federal Grand Jury a necessary step in a criminal case, `where the accused must be represented by counsel\', if he is compelled to appear personally in open court before such Grand Jury?

"II. Does a United States District Court have power and authority to compel an accused to appear personally in open court before a Federal Grand Jury `without violating his constitutional privilege against self incrimination?\'"

In their brief on appeal, appellants have restated their "points presented for reversal" in the following language:

"1. It is a violation of the Fifth Amendment to require a defendant in a criminal case, without his permission to appear before the Grand Jury for the purpose of asking him anything.

"2. An appearance before a Grand Jury by a defendant in a criminal case for any purpose is a stage in a criminal prosecution which under the Sixth Amendment requires that the defendant be allowed to consult with counsel.

"3. (a) A Grand Jury, or a member thereof, may not be challenged once it has been sworn.

(b) A defendant, unschooled at law, may not be said to waive his right to challenge a Grand Jury where his request to consult with counsel is denied."

All of these "points" or contentions of the appellants arise from the same incident or occurrence. The facts involved are brief, are undisputed, and are fully disclosed by the record.

On September 11, 1959, the appellants were escorted by the United States Marshal from the city jail in Council Bluffs, Iowa, where they were then being held on a federal charge, to the courtroom of the United States Courthouse in that city. Present in open court, along with appellants and two other federal prisoners (who were jointly charged with appellants), were the judge and other members of the court staff, members of the United States Attorney's office, and the persons comprising the grand jury. What transpired at that time and place, as regards appellants, is best revealed by quoting from the transcript:

* * * * * *

"The Court: The Grand jury is all here. Ladies and Gentlemen! You have all been sworn and have served in a previous term of court, and I think it\'s within your time or within the time for which you were drawn, and for that reason you have been summoned to serve again. Now are the defendants in court?

"Mr. Stephenson: There are some defendants in court. Before we take that up, Your Honor, the * * *"

Following some discussion, one of the members of the grand jury was excused.

"Mr. Stephenson: Your Honor, there are four defendants who have been charged in a preliminary complaint with burglarizing the Mineola State Bank.

"The Court: Where is Mineola?

"Mr. Stephenson: It is in southwest Iowa, Your Honor. I don\'t know exactly where.

* * * * * *

"Mr. Stephenson: Any of these defendants challenge the panel of the grand jurors as drawn?

"Mr. Taylor: No challenge.

"Mr. Bongiorno: Could you get our counsel here?

"The Court: You may have counsel after you are indicted, of course. If you are indicted!

"Mr. Gordon R. Hopkins: No challenge.

"Mr. Joseph J. Bongiorno: No challenge.

"Mr. Robert Le Roy Engler: No challenge.

"The Court: There are no challenges."

The Court then proceeded to charge the Grand Jury, and explained to them their duties and responsibilities. At the conclusion of the Court's charge, he directed the marshal to return the prisoners to the city jail, and excused the members of the Grand Jury, who thereupon retired to their Grand Jury room to commence their deliberations.

The Grand Jury returned a two count indictment on September 14, 1959, charging the appellants with the violation of certain laws of the United States. Subsequently, appellants were arraigned and entered pleas of not guilty. At the arraignment appellants were represented by counsel of their own choice. On November 3, 1959, appellants again appeared in court with their counsel and, as to Count I of the indictment, each appellant changed his plea to that of "Guilty". Thereafter, upon motion of the United States Attorney, Count II of the indictment was dismissed. Judgment was thereafter duly pronounced, and sentence imposed. Neither appellant contends that, except for the appearance in open court on September 11th, hereinbefore referred to, he was not afforded every desired opportunity to consult with his counsel. The record discloses that neither appellant, at any time, challenged the array of jurors or any individual juror, on any alleged ground, or moved to dismiss the indictment upon any basis. Appellants contend that the court's denial of the request to have counsel present was a violation of Rule 44 of the Federal Rules of Criminal Procedure, and of the Sixth Amendment to the Constitution of the United States.

Rule 44 of the Federal Rules of Criminal Procedure provides:

"If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel."

The Sixth Amendment to the Constitution of the United States, insofar as is here applicable, provides that "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence." In this appeal we are concerned primarily with the constitutional issue.

Appellants cite Powell et al. v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, as holding that an accused "requires the guiding hand of counsel at every step in the proceedings against him", and Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110, as holding that "A Grand Jury investigation is a step in the criminal prosecution of a defendant".

The quotation from Powell, supra, must be read in the light of the facts of that case, and of the critical question involved. The crime with which appellants therein were charged was a capital offense. Appellants were without employed counsel. The Court said (287 U.S. p. 56, 53 S.Ct. p. 59): "It thus will be seen that until the very morning of the trial no lawyer had been named or definitely designated to represent the defendants", and (p. 57, 53 S.Ct. p. 59) "* * * the circumstance lends emphasis to the conclusion that during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself."² The Court further stated: "Neither they (counsel) nor the court could say what a prompt and thorough-going investigation might disclose as to the facts. No attempt was made to investigate. No opportunity to do so was given. Defendants were immediately hurried to trial. * * * Under the circumstances disclosed, we hold that defendants were not accorded the right of counsel in any substantial sense."

In Counselman, supra, appellant appeared before a grand jury which was then in official session, in response to a subpoena served upon him, and, after having been duly sworn, was interrogated. As to several questions, he replied "* * * I decline to answer * * on the ground that it might tend to incriminate me." For such refusal, he was adjudged to be in contempt of court, and was duly sentenced. From an order discharging his writ of habeas corpus, he appealed. The Supreme Court, in commenting upon the proceedings before the grand jury, said: "The matter under investigation by the grand jury in this case was a criminal matter * * *. If Counselman had been guilty of the matters inquired of in the questions which he refused to answer, he himself was liable to criminal prosecution under the act. The case before the grand jury was, therefore, a criminal case. * * *". Appellee contended that the investigation before the grand jury was not a "criminal prosecution", and that appellant was not entitled to the assistance of counsel under the provisions of the sixth amendment to the constitution. The Court, with reference to such contention, said:

"But this provision (the Sixth Amendment) distinctly means a criminal prosecution against a person who is accused and who is to be tried by a petit jury. A criminal prosecution under article 6 of the amendments is much narrower than a `criminal case,\' under article 5 of the amendments. It is entirely consistent with the language of article 5 that the privilege of not being a witness against himself is to be exercised in a proceeding before a grand jury."³

Appellant was ordered discharged from custody, on the writ of habeas corpus.

We have carefully examined the other cases cited by appellants in support of their contentions. Lee v. United States, 5 Cir., 322 F.2d 770, involved interrogation of the accused by police officers, after indictment, and in the absence of counsel. Wood et al. v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1318, involved the right of an accused to have counsel at the time of his preliminary...