Burley v. United States

• Decision Date: 08 September 1961
• Docket Number: No. 6663.,6663.
• Citation: 295 F.2d 317
• Parties: James G. BURLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

295 F.2d 317 (1961)

James G. BURLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 6663.

United States Court of Appeals Tenth Circuit.

September 8, 1961.

Eugene Deikman, Denver, Colo., for appellant.

D. L. Giacomini, Denver, Colo. (Donald G. Brotzman, U. S. Atty., Denver, Colo., on the brief), for appellee.

Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

Appellant filed a motion to vacate and set aside a sentence imposed upon him for violation of the Narcotic Drugs Import and Export Act, 21 U.S.C.A. § 171 et seq. (See Lewis v. United States Burley v. United States, 10 Cir., 277 F.2d 378), asserting that proceedings leading to his conviction were conducted without his presence and in violation of Rule 43, Rules of Criminal Procedure, 18 U.S.C. A.,¹ and the due process clause of the Fifth Amendment. The motion was filed with the sentencing court pursuant to 28 U.S.C.A. § 2255 and the requested relief denied, the trial court holding that "nothing appears in the motion, files and records of this case indicating lack of the fair trial guaranteed by the due process clause of the Fifth Amendment."

Inasmuch as the appellant contended that the record in Criminal Action No. 15945, by which he was convicted and sentenced, did not demonstrate his presence in the courtroom at certain stages of the trial, the prosecution has had certified portions of that record and submitted them as a portion of the record in this appeal. Appellant therefore objects to the consideration of this record on appeal since it was not introduced at a hearing on the motion filed. In fact, no hearing was held, as is permitted by Section 2255, by reason of which appellant makes further complaint.

Clearly, the language of Section 2255 contemplates the denial of hearing and review based on the record of conviction² and appellant's contention that he is entitled to a hearing in all instances upon the averments of his motion is clearly without merit.

The record reveals that the appellant was present during the examination of the jury, contrary to his claim, and that he was present on each day of the trial which followed.

He complains that he was not present at motion before trial, the trial setting, and matters considered in chambers during the course of the trial. Of these contentions, the trial court stated:

"The record discloses in the instant case that defendant\'s absences were `the decision of his retained counsel, as a matter of trial strategy\' and that defendant `made no effort at the trial or on direct appeal to raise the point.\' Under these circumstances defendant is not entitled to relief under 28 U.S.C. Sec. 2255. Kendrick v. United States, D.C.Cir. 102 U.S.App.D.C. 296, 252 F.2d 860.

"Furthermore, the record fails to reveal any prejudice to defendant caused by his absences. The Court\'s handling of the matter of the continuance considered during defendant\'s absence was approved on direct appeal. Lewis v. United States Burley v. United States, 10 Cir., 277 F.2d 378. Defendant next alleges that he was absent when the Court denied a dismissal of the case by reason of the absence of a prosecution witness. Only an issue of law was presented and no advantage would have come from defendant\'s presence. See United States v. Johnson, 3 Cir., 129 F.2d 954; Stegall v. United States, 6 Cir., 259 F. 2d 83. The next allegation is that an offer of proof relating to Burley\'s defense of entrapment was made outside his presence. Defendant\'s counsel was present and the offer of proof also presented only an issue of law. And the matter contained in that offer was later testified to in Open Court in the presence of the defendant. * * *

"Defendant was represented by his retained counsel, no prejudice to defendant resulted from any absences, and there is no allegation that defendant ever asked to be

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