Adams v. United States Cann

Decision Date21 December 1942
Docket NumberNo. 79,79
PartiesADAMS, Warden of City Prison of Manhattan, et al. v. UNITED STATES ex rel. McCANN
CourtU.S. Supreme Court

As Amended on Denial of Rehearing Jan. 18, 1943.

Mr. Chas. Fahy, Sol. Gen., for petitioners.

Mr. Robert G. Page, of New York City, for respondent.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

This is a review of an order by the Circuit Court of Appeals for the Second Circuit discharging the relator McCann from custody. We accept as facts, as did the court below, those set forth in the untraversed return to the writ of habeas corpus in that court.

McCann was indicted on six counts for using the mails to defraud, in violation of Section 215 of the Criminal Code, 18 U.S.C. § 338, 18 U.S.C.A. § 338. From the time of his arraignment on February 18, 1941, to the prosecution of his appeal in the court below, McCann insisted on conducting his case without the assistance of a lawyer. When called upon to plead to the indictment, he refused to do so; a plea of not guilty was entered on his behalf. The district court at that time advised McCann to retain counsel. He refused, however, 'stating in substance that he desired to represent himself, that the case was very complicated, and that he was so familiar with its details that no attorney would be able to give him as competent representation as he would be able to give himself'.

When the case came on for trial on July 7, 1941, McCann repeated, in reply to the judge's inquiry whether he had counsel, that he wished to represent himself. In response to the court's further inquiry whether he was admitted to the bar, McCann 'replied that he was not, but that he had studied law, and was sufficiently familiar therewith adequately to defend himself, and was more familiar with the complicated facts of his case than any attorney could ever be.'1 McCann 'then moved to have the case tried without a jury by the judge alone. There was a brief discussion between the Court, the petitioner, and the Assistant United States Attorney', after which McCann submitted the following over his signature: 'I, Gene McCann, the defendant herein, appearing personally, do hereby waive a trial by jury in the above entitled case, having been advised by the Court of my constitutional rights.' The Assistant United States Attorney consented, and the judge (one of long trial experience and tested solicitude for the civilized administration of criminal justice) entered an order approving this 'waiver'.

The trial then got under way. It lasted for two weeks and a half, and throughout the entire proceedings McCann represented himself. He was convicted on July 22, 1941, and was sentenced to imprisonment for six years and to pay a fine of $600. He took an appeal, and the trial judge fixed bail at $10,000. Being unable to procure this sum, he remained in custody. Then followed applications to the Circuit Court of Appeals, likewise pressed by McCann himself, for extending the time for filing a bill of exceptions. In these proceedings both the trial and appellate courts again suggested to McCann the advisability of being represented by counsel. After having personally made these numerous applications, McCann finally secured the assistance of an attorney. The latter applied to the Circuit Court of Appeals for reduction of bail. It was so reduced. But at the same time the court suggested that McCann take out a writ of habeas corpus, returnable to the court, to raise the question whether, in the circumstances of the case, 'the judge had jurisdiction to try him'.

As is pointed out in the opinion of the Circuit Court of Appeals (126 F.2d 774, 775), 'At no time did he (McCann) indicate that he wished a jury or that he repented of his consent—either while the cause was in the district court or in this court—until the attorney, who now represents him, in March, 1942, raised the point' at the court's invitation. The 'point' thus projected into the case by the Circuit Court of Appeals was presented, in its own words, 'in the barest possible form; Has an accused, who is without counsel, the power at his own instance to surrender his right of trial by jury when indicted for felony?'2 The Circuit Court of Appeals, with one judge dissenting, answered this question in the negative. It held that no person accused of a felony—who is himself not a lawyer—can waive trial by a jury, no matter how capable he is of making an intelligent, informed choice and how strenuously he insists upon such a choice, unless he does so upon the advice of an attorney. 2 Cir., 126 F.2d 774. The obvious importance of this question to the administration of criminal justice in the federal courts led us to bring the case here. 316 U.S. 655, 62 S.Ct. 1048, 86 L.Ed. 1735.

A jurisdictional obstacle to a consideration of this issue is pressed before us. It is urged that the Circuit Court of Appeals had no jurisdiction to issue the writ of habeas corpus in this case. The discussion of this question took an extended range in the arguments at the bar, but in the circumstances of this case the matter lies within a narrow compass. Uninterruptedly from the first Judiciary Act (Section 14 of the Act of September 24, 1789, 1 Stat. 73, 81), to the present day (Section 262 of the Judicial Code, 28 U.S.C. § 377, 28 U.S.C.A. § 377), the courts of the United States have had powers of an auxiliary nature 'to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law'. In Whitney v. Dick, 202 U.S. 132, 26 S.Ct. 584, 50 L.Ed. 963, this Court held that where no proceeding of an appellate character is pending in a circuit court of appeals, the authority to issue auxiliary writs does not come into operation. A circuit court of appeals cannot issue the writ of habeas corpus as 'an independent and original proceeding challenging in toto the validity of a judgment rendered in another court'. But the Court also recognized that there was power to issue the writ 'where it may be necessary for the exercise of a jurisdiction already existing'. 202 U.S. at pages 136, 137, 26 S.Ct. at page 586, 50 L.Ed. 963. In the case at bar a proceeding of an appellate character was pending in the Circuit Court of Appeals, for McCann had already filed an appeal from the judgment of conviction. There was, therefore, 'a jurisdiction already existing' in the Circuit Court of Appeals. But could the issuance of the writ be deemed 'necessary for the exercise' of that jurisdiction?

Procedural instruments are means for achieving the rational ends of law. A circuit court of appeals is not limited to issuing a writ of habeas corpus only when it finds that it is 'necessary' in the sense that the court could not otherwise physically discharge its appellate duties. Unless appropriately confined by Congress, a federal court may avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it. Undoubtedly therefore, the Circuit Court of Appeals had 'jurisdiction', in the sense that it had the power, to issue the writ as an incident to the appeal then pending before it. The real question is whether the Circuit Court of Appeals abused its power in exercising that jurisdiction in the situation that confronted it.

Of course the writ of habeas corpus should not do service for an appeal. Glasgow v. Moyer, 225 U.S. 420, 428, 32 S.Ct. 753, 755, 56 L.Ed. 1147; Matter of Gregory, 219 U.S. 210, 213, 31 S.Ct. 143, 55 L.Ed. 184. This rule must be strictly observed if orderly appellate procedure is to be maintained. Mere convenience cannot justify use of the writ as a substitute for an appeal. But dry formalism should not sterilize procedural resources which Congress has made available to the federal courts. In exceptional cases where, because of special circumstances, its use as an aid to an appeal over which the court has jurisdiction may fairly be said to be reasonably necessary in the interest of justice, the writ of habeas corpus is available to a circuit court of appeals.

The circumstances that moved the court below to the exercise of its jurisdiction were the peculiar difficulties involved in preparing a bill of exceptions. The stenographic minutes had never been typed. The relator claimed that he was without funds. Since he was unable to raise the bail fixed by the trial judge, he had been in custody since sentence and therefore had no opportunity to prepare a bill of exceptions. The court doubted 'whether any (bill) can ever be made up on which the appeal can be heard. * * * In the particular circumstances of the case at bar, it seems to us that the writ is 'necessary to the complete exercise' of our appellate jurisdiction because * * * there is a danger that it cannot be otherwise exercised at all and a certainty that it must in any event be a good deal hampered'.

The court below recognized, however, that a bill of exceptions might be prepared which would be confined to the single point raised by the writ of habeas corpus. This is the basis for the contention that the writ of habeas corpus in this case performs the function of an appeal. But inasmuch as McCann was urging a number of grounds for the reversal of his conviction, including the sufficiency of the evidence, the Circuit Court of Appeals was justified in concluding that it would not be fair to make him stake his whole appeal on the single point raised by this writ. We cannot say that the court was unreasonable in the view it took of the situation with which it was presented and with which it was more familiar than the printed record alone can reveal. The writ of habeas corpus was not a substitute for the pending appeal, and was therefore not improvidently entertained by the court below.

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