Austin v. United States, 23140.

• Decision Date: 30 April 1969
• Docket Number: No. 23140.,23140.
• Citation: 408 F.2d 808
• Parties: Robert John AUSTIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.2d 808 (1969)

Robert John AUSTIN, Appellant, v. UNITED STATES of America, Appellee.

No. 23140.

United States Court of Appeals Ninth Circuit.

March 5, 1969.

Rehearing Denied April 30, 1969.

Robert John Austin, in pro. per.

Wm. M. Byrne, Jr., U. S. Atty., Robert L. Brosio, John W. Hornbeck, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES, MERRILL and CARTER, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

This is an appeal from an order of the district court denying relief on a petition under 28 U.S.C. § 2255 without holding an evidentiary hearing.

Appellant was indicted for bank robbery under 18 U.S.C. § 2113(a). Appellant, represented by counsel, entered a plea of guilty to the charge. On May 3, 1965, he was sentenced to a term of ten years, under the provisions of 18 U.S.C. § 4208(a) (2). The court recommended he be considered for parole after serving two years.

His § 2255 petition filed February 17, 1967, set forth three grounds: (1) that he was denied assistance of counsel when taken before the United States Commissioner for arraignment, and waived a preliminary hearing; (2) that he was sentenced erroneously in that the trial court considered prior offenses of which the appellant alleges he was unaware; (3) that he was induced to make a confession and subsequently to plead guilty by agents of the FBI.

On March 3, 1967, the district court denied the petition under 28 U.S.C. § 2255 without an evidentiary hearing. Appellant filed notice of appeal from the order denying him relief. On June 1, 1967, appellant filed a motion to set aside the court's order of March 3, 1967. Since this court had jurisdiction of the appeal from the March 3, 1967 order, the district court denied the motion of June 1, 1967, on the ground that it lacked jurisdiction. The appellant then withdrew his earlier appeal, and requested the court to reconsider its March 3, 1967 order. The district court again reviewed the allegations of the petition and denied relief.

LACK OF COUNSEL BEFORE COMMISSIONER

Waiver of Preliminary Hearing

Appellant alleges in his § 2255 petition, "I did waive that right to counsel since I had no funds to retain counsel." We assume for argument that there was no valid waiver of counsel, but this does not end the inquiry.

Under the Criminal Justice Act, 18 U.S.C. § 3006A(b), there is a right in the Federal court to counsel at every stage of the proceedings. However, lack of counsel at proceedings before a commissioner, either on arraignment or preliminary hearing, does not ipso facto constitute a denial of the Sixth Amendment right to counsel. This Court in Marcella v. United States, 344 F.2d 876 (9 Cir. 1965), cert. denied 382 U.S. 1016, 86 S. Ct. 630, 15 L.Ed.2d 531 (1965) stated: "* * * the accused is denied rights afforded him under the sixth amendment when he is subjected to an arraignment or to a preliminary hearing without the assistance of counsel, where events transpired that are likely to prejudice his ensuing trial." This Court in Marcella considered Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed. 2d 114 (1961) and White v. Maryland. 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). The arraignment in Hamilton, and the preliminary hearing in White, was in each case, a "critical" stage in the proceedings. See De Toro v. Pepersack, 332 F.2d 341 (4 Cir. 1964), cert. denied 379 U.S. 909, 85 S.Ct. 198, 13 L.Ed.2d 181 (1964), (Maryland law) and Tynan v. Eyman, 397 F.2d 53 (9 Cir. 1968), cert. denied 393 U.S. 954, 89 S.Ct. 383, 21 L.Ed.2d 366 (1968).

In the case at bar, no events transpired before the commissioner which would have prejudiced appellant had he gone to trial. No admissions were made. No prejudice was shown.

Appellant further claims that his waiver of a preliminary hearing was predicated on advice from an FBI agent, and that his failure to have a preliminary hearing resulted in prejudice to him. There is no constitutional right to a preliminary hearing before a commissioner. Sciortino v. Zampano, 385 F.2d 132, 134 (2 Cir. 1967), cert. denied 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872 (1968). A defendant is deprived of no substantial rights when the government by-passes a preliminary hearing. Woykovsky v. United States, 336 F.2d 803, 806 (9 Cir. 1964), cert. denied 379 U.S. 1004, 85 S.Ct. 728, 13 L.Ed.2d 705 (1965).

The return of an indictment establishes probable cause, and eliminates the need for a preliminary examination. Jaben v. United States, 381 U. S. 214, 220, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965). Accord, Byrnes v. United States, 327 F.2d 825, 834 (9 Cir. 1964), cert. denied 377 U.S. 970, 84 S.Ct. 1652, 12 L.Ed.2d 739 (1964); Sciortino v. Zampano, supra. Since here an indictment was returned against appellant and established probable cause, he had no right to a preliminary examination; therefore, he cannot complain of his involuntary waiver of the proceeding.

THE SENTENCING

Appellant contends that the United States Attorney misstated his criminal record at the time of sentencing. The probation report,¹ which was before the court, shows a conviction for simple assault. The arrest which preceded that conviction, had been for an assault with a deadly weapon and was brought to the court's attention by the Assistant United States Attorney at the sentencing hearing. The true facts were developed. Appellant had been arrested for the felony and was convicted of a misdemeanor. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) and United States v. Doyle, 348 F.2d 715 (2 Cir. 1965) as to the matters a sentencing court may consider. The court did not err when it considered the nature of the arrest which preceded the prior conviction.

THE PLEA OF GUILTY

Appellant contends that his plea of guilty was involuntary and induced by promises made by two FBI agents. He alleges that one agent told him he would receive only a one year sentence; also that the second agent told him he could re-roof the agent's house after his release from prison, and thereby get a new start in life after serving the one year sentence.

Appellant alleges that as a result of their promises, he refused to cooperate with his attorney and assured the court when questioned at the time of his guilty plea, that his plea was voluntary and that no promises or threats of any kind had been made to him.²

This is an unusual case. The record demonstrates the correctness of the district court's ruling. In his motion under 28 U.S.C. § 2255, appellant admits he committed the offense with which he was charged. He states in his petition:

"The F.B.I. agents knew of the circumstances involved because a week after I had taken the money from the bank I had phoned the F.B.I. office in Los Angeles and was going to turn myself in. I had told the F.B.I. agent I talked to on the phone how I had applied for county aid and was turned down and with no food or money I didn\'t care what happened to myself so I robbed a bank."

Appellant stated further:

"So that testimony of both Government and defense witnesses would have proven beyond a doubt that petitioner did not use force, violence or intimidation to get the money ($630.00) from Anna K. Munro teller of said National Bank. But in fact said witnesses\' testimony would have instead proved that petitioner simply asked teller, Anna K. Munro, to give him all the tens and twently dollar bills. Her reply was (you\'re kidding) and petitioner said (I\'m sorry I\'m not) from the tone of the words used by petitioner, and the manner in itself used to get the money from Anna K. Munro, was in no way and could have in no way been considered as (force, violence nor intimidation) (such 3-words being the meat so to speak, of sec. 2113(a) title 18."³

In his brief, appellant states that on the day of his arrest, and after a Sergeant of the Los Angeles Police Department had warned him of his rights (and before the alleged promises of the FBI agents), "I told agent Tuggy I had robbed the bank."

In the probation report, appears the following: "Defendant's statement. Defendant states he was under financial pressure and became discouraged. He related that he decided he would steal and, if necessary, pay the consequences, rather than to see his children go without food." Later there appears the following: "Mr. Austin states that he did have several hundred dollars worth of bill sic previous to the instant offense. After robbing the bank of $630.00, he proceeded to pay his creditors with the bulk of this money."

In Sanders v. United States, 373 U.S. 1, 21, 83 S.Ct. 1068, 1080, 10 L.Ed.2d 148 (1962) the Court stated "* * * we think it clear that the sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing." In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), the Court stated:

"What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the statute itself recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner.⁴ (emphasis added).

If there ever was a case where the trial court might use its discretion in determining whether to afford a convicted defendant an evidentiary hearing, this is that case.

The appellant admits the following: (1) Shortly following the robbery, and prior to apprehension, and without any governmental coercion or influence of any kind, he voluntarily called the FBI and told them he had robbed the bank; (2) On the date of his arrest after being warned of his rights, and before the alleged promises by the FBI agents, he...