Bandy v. United States

• Decision Date: 04 December 1961
• Docket Number: No. 16479.,16479.
• Citation: 296 F.2d 882
• Parties: Roger S. BANDY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

296 F.2d 882 (1961)

Roger S. BANDY, Appellant, v. UNITED STATES of America, Appellee.

No. 16479.

United States Court of Appeals Eighth Circuit.

November 15, 1961.

Rehearing Denied December 4, 1961.

Charles A. Seigel, St. Louis, Mo., for appellant.

John O. Garaas, U. S. Atty., Fargo, N. D., for appellee.

Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

VOGEL, Circuit Judge.

On September 10, 1959, Roger S. Bandy, appellant herein, was convicted by a jury on all counts of a six-count indictment charging violations of 18 U.S.C.A. § 287 in that he unlawfully, under fictitious names, presented to the Treasury Department of the United States, through the District Director of Internal Revenue for North Dakota, fraudulent claims for refunds of income taxes. Bandy attempted to appeal from his conviction and sentence and asked leave to proceed in forma pauperis. The trial judge allowed him to file his notice of appeal without payment of costs but refused to allow him to proceed further in forma pauperis, certifying that the appeal was not taken in good faith. In Bandy v. United States, 8 Cir., 1959, 272 F.2d 705, this court appointed counsel to represent Bandy in relation to his motion. Therein we stated, at page 706:

"In the responsibility thus imposed of assisting appellant to make manifest the basis of his claim that the district judge was not warranted in certifying that the appeal was not taken in good faith, it is hoped that counsel may, with the cooperation of the United States Attorney, be able to work out an agreed statement, such as was suggested by us and effected in Weber v. United States, 8 Cir., 254 F.2d 713; Id., 8 Cir., 256 F. 2d 119, 120."

Counsel so appointed (on December 10, 1959) was Mr. Ralph B. Maxwell, of West Fargo, North Dakota, who had served as court-appointed counsel for appellant at the time of his trial before a jury in District Court. Subsequently, and on December 21, 1959, this court on its own motion appointed Mr. Francis J. Magill, of Fargo, North Dakota, to assist Mr. Maxwell in representing Bandy. Thereafter an agreed statement of the case was worked out through counsel, submitted and filed with this court. Based upon that agreed statement and the record and the briefs of counsel, this court in Bandy v. United States, 8 Cir., 1960, 278 F.2d 214, 216, held that the certificate of the trial judge was not arbitrary, unwarranted or erroneous and dismissed the appeal as frivolous.

On petition for writ of certiorari to the Supreme Court of the United States, it was discovered that an error had occurred in the "Agreed Statement of the Case" entered into by counsel, in that it was indicated in the agreed statement that at the arraignment of the appellant on August 12, 1959, at which time a plea of not guilty was entered as to all counts, the trial court had ordered that defense counsel could select and employ a handwriting expert of his own choice at government expense. The date was incorrect. In truth and in fact it was not until September 2, 1959, at a hearing on Bandy's motion for discovery and inspection of government documents, etc., that the trial court stated to Bandy's counsel that he would authorize the employment of a handwriting expert of Bandy's own selection at government expense "and an order will be made when one is selected". This was six days before trial, which had been set for September 8, 1959. On September 4, 1959, the trial court formally executed an order providing that counsel for Bandy could select and employ at the expense of the United States a handwriting expert of his own choice and directing the Marshal to pay the expense thereof. Based on this error in date and on other assertions of Bandy, the Supreme Court in Bandy v. United States, 1960, 364 U.S. 477, 81 S.Ct. 244, 5 L.Ed.2d 34, ordered

"The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. In light of the circumstances pointed out by the Government surrounding the alleged inability of the petitioner to secure the services of his own handwriting expert, the error which occurred in the `Agreed Statement of the Case\' and which was repeated by the Government in its brief and the Court of Appeals in its opinion, the failure to subpoena witnesses with respect to petitioner\'s alibi, and the dispute which arose with respect to representation of petitioner by his appointed counsel on appeal, the judgment is vacated and the cause is remanded to the Court of Appeals for a hearing of the appeal."

We have proceeded with a hearing on the appeal and in connection therewith appointed Mr. Charles Alan Seigel of St. Louis, Missouri, to prosecute the matter in Bandy's behalf.

The case has been presented here on the original files, a complete transcript of the testimony taken during the trial and at the sentencing of the appellant, the briefs of counsel and oral arguments.

On this appeal there are presented and argued the following claimed errors:

1. The court having determined that it was necessary for appellant to have the services of a handwriting expert in order to properly conduct the defense of his case, and in the interest of justice, and appellant having been convicted solely on the opinion testimony of the government's handwriting expert, appellant was deprived of a fair trial and of due process of law by not being allowed sufficient time or opportunity by the court to retain the services of his own handwriting expert.

2. The court in denying appellant's request to subpoena witnesses to support his defense of alibi deprived appellant of a fair trial and of due process of law.

On June 2, 1959, Roger S. Bandy was arrested in New York City upon a complaint issued in North Dakota charging the filing of false and fraudulent claims for income tax refunds. At the time, Bandy was also being sought as a parole violator. On June 5, 1959, Bandy was taken before a United States Commissioner where he waived examination and bail was fixed at $10,000. On June 16, 1959, Bandy was taken before a United States District Court in Brooklyn, New York, and his removal to the District of North Dakota was ordered. He arrived in Fargo, North Dakota on July 11, 1959, and for want of bail was placed in the Cass County Jail. Bandy was an indigent defendant. On July 17, 1959, Ralph B. Maxwell, a former United States Attorney and former Assistant United States Attorney, was appointed to represent him. On July 31, 1959, a grand jury returned a six-count indictment, Count 1 of which charged that on or about January 14, 1959, Bandy, in violation of 18 U.S.C.A. § 287, had made and presented for payment to the District Director of Internal Revenue at Fargo a claim against the United States in the amount of $193.41, in the form of a fraudulent income tax return falsely claiming a refund when he knew that he was not entitled to such refund. The other five counts were substantially identical with Count 1 except as to amounts and dates. All of the offenses were alleged to have been committed in January, 1959. Arraignment was had on August 12, 1959, Bandy entering a plea of not guilty as to all counts. Bail was reduced to the amount of $7500. It was not furnished. At the time of arraignment counsel for Bandy moved for a prompt trial, whereupon the District Judge ordered a special jury term of court for the purpose of trying Bandy, directing that it commence on September 8, 1959, at Fargo, North Dakota.

On August 26, 1959, Mr. Maxwell filed in behalf of Bandy a motion for discovery and inspection, requesting access to and right to copy and photograph various records, documents and writings and specimens of Bandy's handwriting in the possession of the United States that would be used as a basis of expert testimony at the trial. The accompanying affidavit, executed by Bandy, expressed the belief that the government's case would be based on testimony of one or more handwriting experts and that he was

"* * * entirely destitute and without any funds whatsoever to employ handwriting experts of his own; that he will therefore have to rely entirely upon cross examination and impeachment of the government\'s handwriting experts whose testimony will be adverse to him; that in order to adequately prepare for such cross examination it is essential and material that the Defendant know well in advance of trial, the handwriting specimens that will be used, the charts and diagrams that have been prepared to be used against him and the substance of any reports and conclusions of any handwriting experts and reasons therefor; that the lack of time to develop properly the course of cross examination of the said experts (which under defendants (sic) financial circumstances will have such immense importance in the defense of this case) will unfairly penalize Defendant and deprive him of a fair trial; * * *."

No request was made under Rule 17(b), Federal Rules of Criminal Procedure, 18 U.S.C.A., or otherwise for a handwriting expert at government expense. No request was made to subpoena any other witnesses.

At the hearing on Bandy's motion for discovery and inspection on September 2, 1959, the trial court inquired of Mr. Maxwell in the presence of the appellant Bandy

"* * * whether he considered the assistance of a handwriting expert essential to the defense of the Defendant, to which said Counsel replied in the affirmative, but stated the Defendant had no funds with which to amploy (sic) such an expert."

The trial court thereupon advised Mr. Maxwell and appellant that he would authorize the employment of a handwriting expert of the appellant's own selection at government expense. A formal order to such effect was entered on Friday, September 4, 1959. At this point it should be noted that the trial court's unsolicited offer to allow the employment of a handwriting expert at government expense was made on Wednesday morning, September 2, 1959, that the trial had been set (early at the request of the...