Bistram v. United States, 16452.

• Decision Date: 24 October 1960
• Docket Number: No. 16452.,16452.
• Citation: 283 F.2d 1
• Parties: Carl Harvey BISTRAM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

283 F.2d 1 (1960)

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

No. 16452.

United States Court of Appeals Eighth Circuit.

October 24, 1960.

Carl Harvey Bistram, pro se.

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

Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.

SANBORN, Circuit Judge.

Carl Harvey Bistram, on his plea of guilty, entered September 27, 1949, to an indictment charging him with the crime of kidnapping in violation of 18 U.S.C. § 1201(a), was sentenced by the District Court on October 28, 1949, to imprisonment for thirty years. He has unsuccessfully moved that court three times, under 28 U.S.C. § 2255, for the vacation of his sentence. This appeal is from an order denying Bistram's third such motion. The District Court has stated fully the grounds for the denial in Bistram v. United States, D.C., 180 F. Supp. 501.

The first motion of Bistram to vacate his sentence was filed February 20, 1956. It challenged the sufficiency of the indictment. It was denied by the District Court without a hearing. On April 4, 1956, Bistram filed a second such motion, asserting (1) that his plea of guilty was coerced, (2) that he was deprived of effective assistance of counsel, and (3) that he was innocent. This motion was also denied, without a hearing, by the District Court. Bistram took an appeal from each denial. His appeals were consolidated, and in Bistram v. United States, 8 Cir., 237 F.2d 243, the order denying the motion attacking the validity of the indictment was affirmed. The order denying, without a hearing, the second motion, which charged coercion and deprivation of effective assistance of counsel, was reversed and that case was remanded for further proceedings.

Upon remand of the case, the District Court on January 7, 1957, gave Bistram a full hearing upon his second motion, at which he appeared in person and was represented by counsel of his own choice. He testified in his own behalf and offered the testimony of others in support of his motion. At the close of the hearing on the second motion of Bistram, the court asked him if he had any further statement or evidence "of any kind, nature or description" to offer. Bistram replied, "No, nothing now." The court said, "What do you mean, `nothing now?'" Bistram's response was: "Figure of speaking. Nothing." 180 F. Supp. 509 The court found the facts against Bistram and denied his motion. He appealed from the denial. This Court affirmed on October 16, 1957, 248 F.2d 343.

On February 7, 1959, Bistram filed his third motion to vacate sentence, asserting that it "was imposed in violation of the laws and Constitution of the United States by reason that the petitioner was insane at the time of plea of guilty and imposition of the thirty (30) year sentence," and that upon a hearing he would produce evidence to show: (1) that he was mentally incompetent at the time of his plea and the imposition of sentence; (2) that there is a history of hereditary insanity on the maternal side of his family; (3) that he was "determined" to be mentally incompetent while confined in a Minnesota institution; and (4) that he suffered a concussion of the brain "shortly before his trial" which aggravated his mental incompetency.

The District Court on March 23, 1959, ruled that Bistram's third motion should be denied without prejudice to his proceeding under 18 U.S.C. § 4245 or to his renewing his third motion on a documentary showing that he had been determined to be mentally incompetent and that there was hereditary insanity in his family. On June 15, 1959, Bistram renewed his third motion to vacate on the ground of his asserted mental incompetency. Attached to the motion was his affidavit stating that his mother was committed to the Minnesota State Hospital for the insane at St. Peter, Minnesota, because of dementia praecox; that his maternal uncle was committed to the Fergus Falls State Hospital, Fergus Falls, Minnesota, as mentally ill; that he (Bistram) was "determined" to be mentally ill while confined in the Red Wing training school for juvenile male delinquents at Red Wing, Minnesota, from 1937 to 1940; and that he had suffered a head injury shortly before his plea of guilty. He furnished some official letters indicating that his mother had been, on May 29, 1935, committed to the Minnesota State Hospital for the insane at St. Peter, Minnesota, because of mental illness, and died at that institution on July 7, 1935; that his uncle, a Mr. Meacham, was committed to the Fergus Falls State Hospital as mentally ill on August 28, 1922, was released on May 24, 1923, on provisional discharge, and was given a final discharge on December 6, 1933; that Bistram himself was admitted to a hospital at Marysville, Kansas, on June 7, 1949, for "multiple lacerations and concussion", and dismissed the following day "into the custody of the U. S. Marshal Campbell."

Bistram's statement that he had been "determined" to be mentally incompetent was untrue, as shown by a letter from the Superintendent of the State Training School at Red Wing, Minnesota. The letter, with an accompanying psychological report, does indicate that Bistram was an automobile thief at the age of fifteen, and was classified as a moron....