Edwards v. United States, 13743.

• Decision Date: 24 April 1959
• Docket Number: No. 13743.,13743.
• Citation: 265 F.2d 909
• Parties: William EDWARDS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

265 F.2d 909 (1959)

William EDWARDS, Appellant, v. UNITED STATES of America, Appellee.

No. 13743.

United States Court of Appeals Sixth Circuit.

April 24, 1959.

William Edwards, in pro. per.

Fred W. Kaess, U. S. Atty., George E. Woods and Robert E. DeMascio, Asst. U. S. Attys., Detroit, Mich., for appellee.

Before MARIS and MILLER, Circuit Judges, and MATHES, District Judge.

MATHES, District Judge.

This appeal is from a judgment entered upon verdict of the jury convicting appellant of two separate offenses of armed bank robbery in violation of 18 U.S.C. § 2113(d). Although the record discloses that he appeared with and was represented by retained counsel of his choice at all stages of the proceedings in the District Court up to and including the filing of "Notice of Claim of Appeal", appellant has elected to prosecute his appeal in propria persona.

The first ground advanced for reversal is that: "The Court was without jurisdiction to try the cause because (a) appellant was not indicted by Grand Jury as required by the Fifth Amendment of the Constitution, nor, (b) did appellant waive indictment as required by and in compliance with Rule 7(b) of the Federal Rules of Criminal Procedure 18 U.S.C.".

Pointing to the fact that he was prosecuted by information, appellant urges that "Rule 7(b) clearly requires that: (1) appellant be advised of the charge before he may waive, (2) appellant be advised of his rights to indictment before he may waive, (3) appellant must then waive in open court", and asserts that in the case at bar all three requirements of Rule 7(b) were "ignored".

But the record before us shows beyond dispute that at the time of the waiver appellant appeared with his counsel, was advised by the District Judge of the two charges against him, of his constitutional right to be proceeded against by indictment, and of his privilege to waive indictment and consent to prosecution by information. Confronted by the reporter's transcript of the proceedings upon arraignment, appellant's reply is that this record is "a falsification of what actually occurred".

The transcript, as certified by the official reporter, is not to be impugned in this Court by such a sweeping charge. Belt v. Holton, 1952, 90 U.S.App.D.C. 148, 197 F.2d 579. The record is presumptively correct see Butler v. United States, 1951, 88 U.S.App.D.C. 140, 188 F.2d 24; Thomas v. Hunter, 10 Cir., 1946, 153 F.2d 834, and there appears no reason to doubt that appellant's waiver of indictment was voluntarily and understandingly made, as the District Court found, in accordance with the requirements of Rule 7(b). See: Kossin v. United States, 6 Cir., 1956, 235 F.2d 188; United States v. Jones, 7 Cir., 1949, 177 F.2d 476; Barkman v. Sanford, 5 Cir., 1947, 162 F.2d 592.

Appellant next contends that it was prejudicial error to permit one of the witnesses for the prosecution to testify as to conversations and conduct of an incriminating nature and not wholly relevant, involving appellant and the witness, and occurring subsequent to the robbery charged in count one and prior to the robbery charged in count two. Yet the testimony was received without objection from appellant's counsel, it appearing to have been defense strategy to attempt to raise in the minds of the jurors doubt as to whether it might not have been the prosecution witness himself, rather than appellant, who in fact committed the robberies charged.

We are asked nonetheless to consider the admission of this incriminatory testimony to be "plain...