Geise v. United States
Decision Date | 12 December 1958 |
Docket Number | No. 16048.,16048. |
Citation | 262 F.2d 151 |
Parties | Ralph GEISE, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Arthur D. Talbot, Anchorage, Alaska, Edgar Paul Boyko, Los Angeles, Cal., for appellant.
William T. Plummer, U. S. Atty., George F. Boney, Asst. U. S. Atty., Anchorage, Alaska, for appellee.
Before MATHEWS, HEALY and POPE, Circuit Judges.
On April 11, 1950, in the District Court for the Territory of Alaska, Third Division, hereafter called the Alaska court, appellant, Ralph Geise, was indicted under §§ 65-4-12 and 65-4-13 of Alaska Compiled Laws Annotated, 1949,1 for raping an eight-year-old girl, hereafter called the prosecutrix. Appellant was arraigned, pleaded not guilty, had a jury trial and was found guilty as charged. Thereupon, on April 28, 1950, the Alaska court entered a judgment sentencing appellant to be imprisoned for the term of his natural life. A motion for a new trial was filed by appellant on May 2, 1950, and was denied by the Alaska court on July 27, 1950. On August 3, 1950, appellant appealed from the Alaska court's judgment of April 28, 1950, by filing with the clerk of the Alaska court a notice of appeal in duplicate.2 That appeal was not prosecuted.3 No record on it was filed with this court, nor was it docketed. No extension of the time for such filing and docketing was sought or obtained. That time expired on September 12, 1950.4
On March 15, 1951, and at all times thereafter, appellant was a prisoner in custody under his aforesaid sentence and was an inmate of the United States penitentiary on McNeil Island in the Southern Division of the Western District of Washington. On March 15, 1951, appellant applied to the United States District Court for the Western District of Washington, Southern Division, hereafter called the Washington court, for a writ of habeas corpus.5 An order dismissing that application was entered by the Washington court on March 21, 1951. No appeal was taken from that order.6 The time for taking such an appeal expired on April 30, 1951.7
On January 3, 1958, appellant moved the Alaska court to vacate and set aside his sentence — a motion under 28 U.S. C.A. § 2255.8 Briefs in support of the motion were filed by appellant. A brief in opposition thereto was filed by appellee, the United States. The Alaska court filed an opinion9 and a supplemental opinion10 and, on April 9, 1958, entered an order denying the motion. From that order appellant has appealed.
The question presented is whether the Alaska court erred in denying the motion to vacate and set aside appellant's sentence. The stated ground, and the only stated ground, of the motion was that the sentence "was imposed in violation of the Constitution of the United States in that defendant appellant was denied the public trial guaranteed him by the Sixth Amendment of the Constitution."11 That appellant had a trial is undisputed. The question is whether his trial was a public trial. The record shows the following facts:
Six witnesses testified at appellant's trial. The first witness was the prosecutrix, then aged nine years.12 The next two witnesses were girls, aged respectively seven years and eleven years. The remaining witnesses were adults. After the jury was impaneled and before any witness was called, the following colloquy occurred:
Accordingly, all spectators19 were excluded except those who were members of the press or were members of the bar or were relatives of appellant or were close friends of appellant or were relatives of the seven-year-old witness or were close friends of the seven-year-old witness or were relatives of the nine-year-old witness or were close friends of the nine-year-old witness or were relatives of the eleven-year-old witness or were close friends of the eleven-year-old witness. Because of the exclusion, appellant contends that his trial was not a public trial.
Upon the authority of Reagan v. United States, 9 Cir., 202 F. 488, and Callahan v. United States, 9 Cir., 240 F. 683,20 we reject this contention and hold that, despite the exclusion, appellant's trial was a public trial.
Reagan was convicted of raping a fourteen-year-old girl, the prosecutrix in the Reagan case. The record in that case shows that sixteen witnesses testified at Reagan's trial — the fourteen-year-old prosecutrix21 and fifteen adults. At the beginning of that trial, before any witness was called, the trial court made an order excluding from the courtroom all spectators except members of the bar. Because of the exclusion, Reagan contended that his trial was not a public trial. Rejecting that contention, this court, in effect, held that, despite the exclusion, Reagan's trial was a public trial. That holding has not been reversed or overruled.
Callahan was convicted of raping a fourteen-year-old girl, the prosecutrix in the Callahan case. The record in that case shows that nine witnesses testified at Callahan's trial — the prosecutrix, then aged fifteen,22 a girl aged fourteen and seven adults. At the beginning of that trial, before any witness was called, the trial court made an order which, in effect, excluded from the courtroom all spectators except members of the press and members of the bar. Because of the exclusion, Callahan contended that his trial was not a public trial. This court, citing Reagan v. United States, supra, rejected that contention and, in effect, held that Callahan's trial was a public trial. That holding has not been reversed23 or overruled.
It will be noted that all three of the children who testified in the instant case were younger than the child who testified in the Reagan case and younger than either of the two children who testified in the Callahan case, and that the exclusion order in the instant case was less sweeping than that in the Reagan case or the Callahan case. Thus the propriety of the exclusion order was even clearer and more obvious in the instant case than in the Reagan case or the Callahan case.
In support of his contention that his trial was not a public trial, appellant cites Tanksley v. United States, 9 Cir., 145 F.2d 58, 156 A.L.R. 257;24 Davis v. United States, 8 Cir., 247 F. 394, 395;25 and United States v. Kobli, 3 Cir., 172 F.2d 919.26 Actually, as we shall show, none of these cases supports appellant's contention.
Tanksley was convicted of raping a nineteen-year-old married woman, the prosecutrix in the Tanksley case. The record in that case shows that nine witnesses testified at Tanksley's trial — the prosecutrix and eight others, all adults. At the beginning of that trial, before any witness was called, the trial court made an order which, in effect, excluded from the courtroom all spectators except members of the press and Tanksley's father and brother. Because of the exclusion, Tanksley contended, and this court held, that Tanksley's trial was not a public trial. However, this court did not, in the Tanksley case, reverse, overrule or disapprove its holding that Reagan's trial was a public trial or its holding that Callahan's trial was a public trial.27
The Tanksley case was and is distinguishable from the Reagan case, the Callahan case and the instant case in that no child testified in the Tanksley case, whereas, one child testified in the Reagan case, two children testified in the Callahan case, and three children testified in the instant case. The Tanksley case is further distinguishable from the instant case in that the exclusion order in the Tanksley case was far more sweeping than that in the instant case. Obviously, the Tanksley case is not in point here.
Neither the Davis case nor the Kobli case was a rape case. Davis was convicted of a crime which "had connection with a train robbery." Kobli was convicted of violating and conspiring to...
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