Farnsworth v. Zerbst

• Decision Date: 23 August 1938
• Docket Number: No. 8711.,8711.
• Citation: 98 F.2d 541
• Parties: FARNSWORTH v. ZERBST, Warden.
• Court: U.S. Court of Appeals — Fifth Circuit

98 F.2d 541 (1938)

FARNSWORTH v. ZERBST, Warden.

No. 8711.

Circuit Court of Appeals, Fifth Circuit.

August 23, 1938.

John Semar Farnsworth, in pro. per., and George S. Hawke, of Cincinnati, Ohio, for appellant.

Lawrence S. Camp, U. S. Atty., and Harvey H. Tisinger and J. Ellis Mundy, Asst. U. S. Attys., all of Atlanta, Ga., for appellees.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

On the original hearing before us the petitioner-appellant was not represented by counsel, indeed had filed no brief. On this motion for rehearing we welcome the able brief of counsel in his behalf and have given it full consideration. His summary of the points mainly relied on is this: "(1) That if any one of the above mentioned Constitutional provisions (Fifth, Sixth and Eighth Amendments, U.S.C.A.Const. Amends. 5, 6, 8) has been violated by the trial court, said court thereby lost all jurisdiction and Farnsworth is entitled to discharge. (2) That if the indictment does not charge any criminal overt act, or is defective in that the co-conspirators named are Japanese diplomats immune to any conspiracy indictment, Farnsworth is entitled to discharge. (3) That if appellant received a sentence not authorized by law (because indeterminate), he is entitled to discharge."

The first point is rested on the case of Johnson v. Zerbst, 58 S.Ct. 1019, 82 L. Ed. ___. We do not understand that case to hold that habeas corpus is a remedy for every deprivation of constitutional right in a criminal trial. It held only that a deprivation of the right of counsel might be thus collaterally enquired into. It may be true, as is argued, that a coerced plea of guilty or of nolo contendere, or an arbitrary refusal to grant a timely application to withdraw such plea and plead not guilty, is tantamount to a denial of a jury trial and within the reasoning of the Johnson Case. But the record here does not show a coerced plea or an arbitrary refusal of its withdrawal. The record, which according to Riddle v. Dyche, Warden, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009, cannot be contradicted on habeas corpus, reads: "Came as well the Attorney of the United States, as the defendant in proper person * * * and by his attorneys Messrs. William J. Hughes, Jr., and William E. Leahy; and thereupon the defendant being arraigned upon the indictment pleads thereto nolo contendere, and submits to the mercy of the court." The docket shows that three days later a motion was made to withdraw the plea and to plead not guilty, and two days after that an answer opposing the motion was filed. The contents of these papers do not appear. Then after three days Messrs. Leahy and Hughes withdrew as counsel and the motion was argued and overruled. Two days later a motion in arrest of judgment was made by other counsel, but was withdrawn the next day and sentence ensued. It is now argued that these apparently regular and deliberate proceedings were forced and unfair, and that Farnsworth so testified on his habeas corpus hearing, and that the District Attorney had his stenographer to take down this testimony and appellant in his praecipe on this appeal specified to be sent up "a transcript of the stenographer's record of the proceedings, including the testimony of petitioner." The Clerk sent up no such transcript. Upon informal enquiry of him we learn that he has never had any such paper. The stenographer is not an officer of court, and is admitted to be only the employee of the District Attorney. The appellant should have made a statement of the evidence and presented it to the Judge for approval under Equity Rule 75, 28 U.S.C.A. following section 723, and thus have secured a record to be sent to this court. Whether a case exists for a discharge on habeas corpus on this ground cannot be determined.

But it is further argued that an absolute right to withdraw the plea was established by the Act of Feb. 24, 1933, amended March 8, 1934, 28 U.S.C.A. § 723a, authorizing the making of rules of procedure after conviction or plea of guilty in criminal cases, because of the proviso: "Provided, That nothing herein contained shall be construed to give the Supreme Court the power to abridge the right of the accused to apply for withdrawal of a plea of guilty, if such application be made within ten days after entry of such plea, and before sentence is imposed." Accordingly Rule 2(4), 28 U.S.C.A. following section 723a, provides: "A motion to withdraw plea of guilty shall be made within ten (10) days after entry of such plea and before sentence is imposed." We are of opinion that a plea of nolo contendere is a plea of guilty within the Act and the Rule, but they do not give any right to withdraw such pleas. They deal only with a limit of time within which the application to withdraw may be filed. The principles on which it may be granted or denied remain unchanged. Farnsworth's application was filed in time and his right to file it was apparently recognized. So far as appears it was denied on the merits. If the present record, asserted to be imperfect, does not fully present the case, the door is not wholly closed against making a better presentation of it on another petition, since res adjudicata is not strictly applied in habeas corpus cases.

The indictment is sufficient to support the sentence. What are the essentials of the crime sought to be charged and whether they have been sufficiently set forth in the accusation are questions for the trial court, and because of the review of the record which the judge is obliged to make before pronouncing sentence, they are adjudicated when he sentences. They are ordinarily not reviewable on habeas corpus. Aderhold, Warden, v. Hugart, 5 Cir., 67 F.2d 247. The habeas corpus court can say that no crime was charged and consequently the imprisonment is unlawful only when it is plain that there is no law to punish the sort of conduct charged. By this record it appears that there was a conspiracy between Farnsworth and two named Japanese, and others unknown, to violate 50 U.S.C.A. Sec. 32 by communicating, delivering and transmitting to a foreign government, Japan, documents, code and signal books, and writings relating to the national defense to be used to the advantage of Japan and the injury to the United States; and in furtherance thereof and to effect its object Farnsworth went on stated days to four stated places in Washington City. This is an offense under 50 U.S.C.A. Sec. 34. Section 32 forbids the doing of or attempting to do the things it names relating to the national defense. Section 34 punishes the conspiring of two or more persons to do them if any one of such persons "does any act to effect the object of the conspiracy." The act done need not be one forbidden by Section 32 or any other law. If it is done to effect the conspiracy it is enough. So, although it is no unlawful thing...