Bistram v. United States, 15745.

• Citation: 248 F.2d 343
• Decision Date: 16 October 1957
• Docket Number: No. 15745.,15745.
• Parties: Carl Harvey BISTRAM, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

248 F.2d 343 (1957)

Carl Harvey BISTRAM, Appellant, v. UNITED STATES of America, Appellee.

No. 15745.

United States Court of Appeals Eighth Circuit.

October 16, 1957.

Carl Harvey Bistram, pro se.

Robert Vogel, U. S. Atty., Fargo, N. D., for appellee.

Before GARDNER, Chief Judge, and JOHNSEN and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Chief Judge.

This case is before us for the second time. Appellant, his brother, Arthur Earl Bistram, and another were indicted for the crime of kidnapping as defined by Section 1201(a), Title 18, U.S.C. Each of the defendants entered a plea of guilty. Thereafter Carl Harvey Bistram, appellant herein, filed a motion to vacate and set aside the judgment on the ground that the sentencing court lacked jurisdiction in that the indictment failed to negative an exception contained in Section 1201(a), Title 18, U.S.C. This motion the trial court overruled and appellant again filed a motion to vacate and set aside the judgment on the ground that his plea of guilty was coerced and obtained by threats and promises. This motion was likewise overruled by the trial court. On appeal we sustained the trial court in overruling the first of these motions but held that on the second motion the appellant was entitled to a hearing and we reversed and remanded the case for that purpose. Bistram v. United States, 8 Cir., 237 F.2d 243.

Subsequent to the remand of the case to the District Court appellant applied to the court for a writ of habeas corpus ad testificandum. On his application the District Court issued the writ directed to the warden of the United States Penitentiary at Alcatraz, California, pursuant to which appellant was returned to the District of North Dakota on or about December 1, 1956. At that time he was represented by counsel of his own choice and on December 11, 1956, the court heard a motion by appellant for writ of habeas corpus ad testificandum directed to the warden of the United States Penitentiary at Leavenworth, Kansas, to produce his brother, Arthur Earl Bistram, as a witness at the hearing to be held on December 18, 1956. The court denied his application for such writ. Thereafter the deposition of the witness Arthur Earl Bistram was taken at Leavenworth, Kansas, and in the taking of the deposition appellant was represented by counsel of his own choice and the deposition was offered in evidence in support of appellant's motion and became a part of the original record in this case. Subsequent to the taking of this deposition and before the hearing on his motion to vacate and set aside the judgment of conviction appellant filed a motion to retake the deposition of Arthur Earl Bistram, which motion the court denied. Hearing on the motion to vacate and set aside the judgment of conviction was had on January 7, 1957, at which hearing appellant personally testified, was represented by counsel and offered the deposition of his brother and the testimony of his former attorney, following which hearing the court made and entered the following, among other, findings:

"I.

"That on or about the 6th day of June, 1949, movant was charged in a criminal complaint filed in the District of North Dakota, together with one Arthur Earl Bistram and one Chester Allen Hartman, with having transported in interstate commerce one Ralph Alex Senn after the said Senn had been seized, abducted and held by the defendants. He was thereafter arrested in the District of Nebraska and removed to the District of North Dakota to answer said charge.

"II.

"That on the 28th day of June, 1949, he and his co-defendants aforesaid were before the United States District Court for the District of North Dakota and given an opportunity to have the Court appoint attorneys to represent them. Movant advised the Court he desired to obtain his own counsel and was attempting to raise funds therefor.

"III.

"That on the 20th day of September, 1949, movant for the first time advised the Court that he desired court appointed counsel, and on the following day the Court appointed as his counsel A. R. Bergesen, an experienced, able and conscientious attorney. That on the 22nd day of September, 1949, the movant and the aforesaid co-defendants were indicted by a grand jury in the District of North Dakota charged with transporting the said Senn in interstate commerce after being seized, abducted and held by them, to escape arrest and with a violation of the National Motor Vehicle Theft Act 18 U.S. C.A. §§ 10, 2311-2313.

"IV.

"The aforesaid cases against the movant and his co-defendants were triable at Bismarck, North Dakota, Southwestern Division of the District of North Dakota, and prior to the 27th day of September, 1949, a jury had been ordered to report at Bismarck to try all cases there pending on October 5, 1949.

"V.

"That on the 27th day of September, 1949, during the morning, by pre-arrangement all three defendants with their individual counsel appeared before the Court. Upon arraignment the defendants Chester Allen Hartman and Arthur Earl Bistram entered pleas of guilty and movant Carl Harvey Bistram pleaded not guilty. At this time, the three prisoners were brought into court by the former United States Marshal C. M. Foresman. Prior to this time movant had consulted with his attorney.

"VI.

"That during the proceedings in the morning of September 27, 1949, the Assistant United States Attorney, Harry Lashkowitz, used certain language which the movant claims constituted threats and coercion, but which in fact showed only a concern over the limited time available to obtain witnesses before the opening of the Bismarck term. That nothing was said by Mr. Lashkowitz which could, or did, have the effect of coercing or threatening or deceiving either the movant or his counsel. Before the close of said session of court, the Court advised movant it was entirely up to him and his attorney whether or not he wanted to change his plea.

"VII.

"That the claims of movant that certain threats were made against him and his brother by former Assistant United States Attorney Harry Lashkowitz immediately after the recessing of court on the morning of the 27th of September, 1949, were denied by Mr. Lashkowitz. The witness C. M. Foresman, who was present and within hearing distance of movant at all times during and after this session of court, denied that any such threats were made in his presence and testified that they could not have been made without being overheard by him. That the claim of said threats were not corroborated by deposition of Arthur Earl Bistram, movant\'s brother.

"VIII.

"That Mr. A. R. Bergesen, movant\'s former attorney, was not called upon to corroborate movant\'s allegation that prior to his entry of his plea of guilty he had informed said counsel of the alleged threats made by Mr. Lashkowitz, and upon this hearing no evidence whatsoever was offered in support of the allegations in movant\'s moving papers to the effect Mr. Bergesen had advised him he could not have a fair trial due to the attitude of Mr. Lashkowitz, Assistant United States Attorney, then in charge of his cases in behalf of the Government.

"IX.

"That movant, between the recessing of court on the morning of the 27th of September, 1949 and 2:00 in the afternoon, after further consultation with his attorney, appeared in court and asked the Court for leave to withdraw his plea of not guilty, which was granted, and he thereupon entered a free and voluntary plea of guilty.

"X.

"That he was sentenced on said charges on the 28th day of October, 1949. During the period of one month and one day that

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