Bozel v. Hudspeth

• Decision Date: 03 March 1942
• Docket Number: No. 2411.,2411.
• Citation: 126 F.2d 585
• Parties: BOZEL v. HUDSPETH, Warden.
• Court: U.S. Court of Appeals — Tenth Circuit

126 F.2d 585 (1942)

BOZEL v. HUDSPETH, Warden.

No. 2411.

Circuit Court of Appeals, Tenth Circuit.

March 3, 1942.

Emmet H. Bozel, pro se.

Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

This is an appeal from a judgment denying a writ of habeas corpus. According to the petition for the writ and the exhibits attached thereto, the petitioner was indicted in the District Court of the United States for the Northern District of Ohio, Eastern Division. The indictment returned on June 14, 1939, contained three counts, each charging a violation of 18 U.S.C.A. § 338 (using the mails to defraud).

On September 9, 1939, petitioner's attorney entered his formal appearance, and on September 15, 1939, petitioner appeared personally and by his attorney, was tried and convicted on each count of the indictment, and was on the same date sentenced by the court to serve a term of five years on count one and five years on count two, to begin at the expiration of the sentence on count one; five years on count three, to begin at the "same time" and run concurrently with sentences on counts one and two, or a total of ten years on the three counts. Petitioner was delivered to the custody of the Warden of the United States Penitentiary at Leavenworth, Kansas, on January 26, 1940.

The petition is voluminous and incoherent; the points raised are many, but those warranting consideration are that the trial court was without jurisdiction to try or impose sentence because: (1) a. each and all of the counts in the indictment failed to charge an offense punishable under 18 U.S.C.A. § 338 (scheme to use the mails to defraud); b. the acts complained of in the indictment constituted offenses exclusively within the jurisdiction of the Federal Trade Commission Act, 38 Stat. 717, as amended 52 Stat. 111, 15 U.S. C.A. §§ 41-51; (2) evidence introduced against him was secured by illegal search and seizure, consisting of copies of telegrams and other prejudicial data taken from his person at the time of his arrest; (3) illegal removal from the state of Virginia, the place of his arrest, to the trial district in Ohio, deprived the trial court of jurisdiction over his person; (4) the sentence is void for uncertainty, and (5) the denial of the right to have witnesses produced in his behalf.

Upon the filing of the petition for writ of habeas corpus the court appointed counsel for the appellant; issued an order to the Warden to show cause, but ordered that the custody of the appellant be not disturbed pending determination of the issues raised on the petition as filed. The trial court denied the writ on the grounds that the petition and the return on the order to show cause did not state any grounds warranting the issuance of the writ.

The return of the Warden on the order to show cause raises no controverted issues of fact, the determination of which are essential or necessary to the legal questions presented in the petition for the writ. The presence of the petitioner at the trial is not an essential requisite to the proceedings upon the issues raised by the petition. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, and Minnec v. Hudspeth, 10 Cir., 123 F.2d 444. Cf. O'Keith v. Johnston, 9 Cir., 122 F.2d 554.

It is sufficient to say that each count in the indictment clearly charges a scheme to use the mails to defraud, punishable under 18 U.S.C.A. § 338, and the offenses charged are neither colorless nor impossible ones under the law, and are entirely sufficient to give the court jurisdiction of the subject matter. Huntley v. Schilder, Warden, 10 Cir., 125 F.2d 250; Rosenhoover v. Hudspeth, 10 Cir., 112 F.2d 667; Moore v. Aderhold, 10 Cir., 108 F.2d 729, and Garrison v. Hudspeth, 10 Cir., 108 F.2d 733. Neither is it a bar to prosecution under this section of the Act that such acts are condemned by the Federal Trade Commission Act, supra, for the obvious reason that violations under the Federal Trade Commission Act are not criminal offenses, but if they were it would not be a bar to the prosecution under the mail fraud statute. Cf. Troutman v. United States, 10 Cir., 100 F.2d 628, and Lee v. United States, 5 Cir., 91 F.2d 326, 327.

A motion to suppress and for the return of certain papers, circulars, and advertising matter, together with all memoranda containing various names and addresses taken from the petitioner at the time of his arrest was made to the trial court, by his attorney before trial. The petitioner alleges that such matter was taken from him without a valid search warrant and was used against him in the trial of the case in violation of his rights under the 4th and 5th Amendments.

Assuming that the motion to suppress was overruled by the trial court and that such papers and advertising matter were introduced as evidence in the trial of the case, it plainly appears from the pleadings that the evidence was obtained as an incident to a valid and lawful arrest and was a part of the fruits of the crime for which he was charged and was, therefore, clearly admissible in evidence and no constitutional right against unreasonable search and seizure was denied to him. 6 C.J.S., Arrest, § 18, p. 620. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652.

Assuming further that the search was illegal and that the evidence thus obtained was introduced in evidence against him in violation of his constitutional right against illegal search and seizure, it may be seriously questioned whether the evil can be reached in a habeas corpus proceedings. While the remedy afforded by habeas corpus is ever ready as a safeguard for human liberties under the Constitution and its exercise is amenable at all times to the processes of justice, yet it cannot be used to correct errors of law occurring in the trial of a cause over which the court has jurisdiction, unless it affirmatively appears that in the course of the proceedings the court lost jurisdiction because it transgressed the constitutional safeguards in the trial of the case. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Ex parte Parks, 93 U. S. 18, 23 L.Ed. 787; Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, and Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455.

Here the petitioner was represented by counsel of his own choice in the trial of the case. He filed a timely motion to suppress the evidence on the grounds that it was illegally obtained by an unlawful search and seizure. If the motion was well taken and the court erred in the admission of the testimony, the orderly processes of review were available to the petitioner and the usual procedure for attack has been to assign as erroneous the admission of the illegally obtained evidence to the appellate court of...