Bistram v. United States, 15872.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation253 F.2d 610
Docket NumberNo. 15872.,15872.
PartiesArthur Earl BISTRAM, Appellant, v. UNITED STATES of America, Appellee.
Decision Date04 April 1958

Arthur Earl Bistram filed brief pro se.

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

Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

In this proceeding instituted by authority of Title 28 U.S.C.A. Sec. 2255, Arthur Earl Bistram has appealed from the order of the Court denying his motion to vacate sentence and application for writ of habeas corpus ad testificandum. In view of the contentions advanced by appellant, it is deemed advisable to review the proceedings antedating the original judgment and commitment.

While a fugitive, appellant, his brother, and one Allen Hartman, were stopped by a police officer at Mandan, North Dakota, on June 5, 1949. They unlawfully and with force seized the officer and transported him by automobile into the State of Nebraska where he was released. On June 6, 1949, a complaint was filed by a special agent of the Federal Bureau of Investigation before Aaron Aronson, United States Commissioner for the District Court of North Dakota, charging appellant and his cohorts with violation of Title 18 U.S.C.A. Sec. 1201. Thereafter, and on the same day, a warrant was issued by the United States Commissioner for the arrest of appellant. On June 6, 1949, by a telephone call, the Sheriff at West Point, Nebraska, was notified that appellant desired to surrender, and pursuant thereto, he was taken into custody and placed in the West Point, Nebraska, jail. On June 7, 1949, appellant was taken by officers of the United States Government before United States Commissioner George W. Dittrick at Norfolk, Nebraska, and in default of a $20,000 bond for his appearance before said Commissioner, was committed to jail. On June 14, 1949, appellant again appeared before Commissioner Dittrick, at which time, pursuant to Rule 40(b), F.R.C.P., 18 U.S.C.A., appellant waived hearing and consented to removal to the District of North Dakota, Southwestern Division. He appeared before Honorable James A. Donohoe, a Judge of the United States District Court, District of Nebraska, on June 15, 1949, who issued Warrant of Removal on that day commanding that appellant be removed to the District of North Dakota. Thereafter, and on July 15, 1949, appellant appeared before the Honorable Charles J. Vogel, Judge of the United States District Court for North Dakota, and requested appointment of a lawyer to represent him. By an indictment returned on September 22, 1949, appellant was charged with transporting in interstate commerce from Mandan, North Dakota, to vicinity of Laurel, Nebraska, one Ralph Alex Senn, who had theretofore been unlawfully seized, abducted and kidnapped by appellant and others, in violation of Title 18 U.S.C.A. Sec. 1201. To that charge, with his lawyer present, appellant entered a plea of guilty on September 27, 1949, but sentence was deferred until October 28, 1949, when the Court assessed a penalty of 25 years' imprisonment.

On July 25, 1957, appellant filed motion to vacate the sentence and application for writ of habeas corpus ad testificandum, and, as stated at the outset, he has appealed from the order denying both applications.

Appellant contends that he was denied the constitutional rights and due process as guaranteed by the IV, V, VI, and XIV Amendments to the Constitution. In support of this broad and general charge, appellant takes the position that the government officers who removed him from the West Point, Nebraska Jail, were not armed with a warrant for his arrest; that therefore his arrest was illegal, and, being so, the District Court of North Dakota, which ultimately rendered the judgment sentencing appellant to prison, lacked jurisdiction of his person; that this want of jurisdiction rendered the proceedings void, and consequently the sentence must be vacated.

We are not impressed with the urgency of these contentions. The fact of the matter is when appellant was taken from the Nebraska jail on June 7, 1949, a warrant for appellant's arrest was in existence, for the record shows that on June 6, such a warrant was issued by the United States Commissioner. Rule 4 (c) (3), Federal Rules of Criminal Procedure, 18 U.S.C.A., clearly and explicitly provides that the arresting officer need not have the warrant in his possession when the arrest is made, but upon request shall exhibit the warrant to the defendant as soon as possible. If the officer does not have the warrant in his possession at time of arrest, it is necessary that he inform the defendant of the offense charged and of the fact that a warrant has been issued. Whether this last requirement was met in the instant case we are unable to determine. The record is silent in that regard, but we do observe that a return was made by the United States Marshal for the District of Nebraska, which shows that appellant was arrested at Omaha, Nebraska, on June 8, 1949, which of course was one day following appellant's appearance before the United States Commissioner.

But even though appellant may be correct in his assertion that the warrant was not shown to him, and that the officers failed to inform him of the existence of a warrant or of the nature of the offense charged, his basic claim of no jurisdiction of his person must fail.

Rule 12(b) (2), Federal Rules of Criminal Procedure, 18 U.S.C.A., provides:

"Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver."

In Pon v. United States, 1 Cir., 1948, 168 F.2d 373, the court was concerned with the precise question here presented, i.e., Pon attacked the jurisdiction of the court over his person on the ground that the officers arrested him without a warrant, having no reasonable cause to believe that he had committed a felony. In ruling the point against the appellant, the court stated, loc. cit. 374, "The defendant went to trial on his plea of not guilty without objecting to the jurisdiction of the court over his person, and thereby waived such objection. He cannot question the legality of his arrest at a later stage in the proceeding. This has long been the rule and the practice. `While the competency of any court to adjudicate the subject matter may always be questioned, jurisdiction of the person, if not challenged upon appearance, is equivalent to consent.' Chapman v. Scott, D.C., 10 F.2d 156, 159, affirmed 2 Cir., 10 F.2d 690; Ford v. United States, 273 U.S. 593-606, 47 S.Ct. 531, 71 L.Ed. 793." The Court also considered Rule 12(b) (2) supra, and interpreted the phrase, "lack of jurisdiction," appearing therein to refer to jurisdiction over the subject matter, which a defendant has no power to waive. See also United States v. Rosenberg, 2 Cir., 195 F.2d 583, certiorari denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687, which unequivocally holds that personal jurisdiction can be waived in a criminal as well as a civil case.

For an equally cogent reason, appellant's contention must be disallowed. It has long been a firmly entrenched principle of federal jurisprudence that if the accused is personally before a court having jurisdiction of the subject matter, that court has jurisdiction over the accused regardless of how he was brought into the presence of the Court. Strand v. Schmittroth, 9 Cir., 233 F.2d 598, appeal dismissed, 355 U.S. 886, 78 S.Ct. 258, 2 L.Ed. 186, and cases cited in footnote 11, at page 604 of 233 F.2d; Robinson v. United States, 6 Cir., 144 F.2d 392, loc. cit. 396, affirmed, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944; Chandler v. United States, 1 Cir., 171 F.2d 921, certiorari denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081; Hardy v. United States, 8 Cir., 250 F.2d 580. In Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, the Supreme Court considered the claim of respondent Shirley Collins that while he was living in Chicago, Michigan officers "forcibly seized, handcuffed, blackjacked and took him to Michigan." The contention was that the trial and conviction under such circumstances was in violation of the Due Process Clause of the Fourteenth Amendment and the Federal Kidnapping Act. In ruling the point, the Court stated, 342 U.S....

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    ...process as to deprive the sentencing court of jurisdiction to accept a plea of guilty, citing Frisbie v. Collins. In Bistram v. United States, 253 F.2d 610 (8 Cir. 1958), the prisoner contended that he was denied his constitutional rights and due process guaranteed by the 4th, 5th, 6th and ......
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