Glouser v. United States

• Decision Date: 05 December 1961
• Docket Number: 16836.,No. 16798,16798
• Citation: 296 F.2d 853
• Parties: Larry C. GLOUSER, Appellant, v. UNITED STATES of America, Appellee. Raymond P. GEARHART, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

296 F.2d 853 (1961)

Larry C. GLOUSER, Appellant, v. UNITED STATES of America, Appellee.

Raymond P. GEARHART, Jr., Appellant, v. UNITED STATES of America, Appellee.

Nos. 16798, 16836.

United States Court of Appeals Eighth Circuit.

December 5, 1961.

Larry C. Glouser, pro se.

Raymond P. Gearhart, Jr., pro se.

Robert S. Erdahl, Beatrice Rosenberg, and Sidney M. Glazer, Attorneys, Department of Justice, Washington, D. C., on the brief, for appellee.

Before SANBORN, MATTHES and RIDGE, Circuit Judges.

MATTHES, Circuit Judge.

These appeals are from the denial of appellants' separate motions under Title 28 U.S.C.A. § 2255 to vacate and set aside the sentences imposed upon them on January 9, 1959, following a jury trial in which appellants were found guilty under a three-count indictment.¹ The court adjudged that each of the appellants serve a sentence of five years on each count, to run consecutively for a total of fifteen years. Later and upon motion, the court by order entered March 5, 1959, suspended the sentence on Count III as to each appellant and directed that as to said count appellants be placed on probation for a five-year period, thus reducing the prison term of each to ten years. Appellants did not appeal from the judgments of conviction.

Before attending to the points which appellants urge for our consideration, we briefly summarize the facts giving rise to the original prosecution.

On the evening before the offenses were committed, Linford R. Fitch and Gearhart agreed upon a plan to burglarize a federally insured bank at Fontanelle, Iowa. During the same evening Glouser joined the illegal scheme. Thereafter the three conspirators, armed with weapons and possessing a sack of tools, drove to Fontanelle, where Gearhart reconnoitered the bank and the adjoining post office. On this trip it was agreed that if the bank burglary proved unsuccessful, the post office would be burglarized. Having thus laid the plans, appellants and Fitch drove to a motel where they registered. Virginia Sue Tabor, who was Glouser's girl friend, remained at the Fitch home, where the illegal plan was entered into, and took care of the Fitch children.

At about 2:30 o'clock A. M. on October 8, appellants and Fitch drove back to Fontanelle and climbed onto the roof of the post office which adjoined the bank. Glouser acted as a lookout while Fitch and Gearhart broke into the bank through a stairway. However, when they attempted to break open the bank vault, tear gas was released, and they were forced to leave the bank building. Pursuant to their plan, they then broke into and entered the post office, but were unsuccessful in their attempt to open the post office safe. However, Glouser opened boxes in the post office and stole about $8. Gearhart and Fitch later reentered the bank but again failed in their attempt to open the vault and the project was abandoned. Shortly thereafter the three were apprehended. During the trial, Fitch, who had previously pled guilty, testified to all of the foregoing and other details surrounding the plan to commit the offenses, and the method of carrying it into effect. Virginia Sue Tabor also testified as a Government witness. The circumstances under which she testified became a matter of deep concern to Glouser in one form or another, as we shall presently see.

Glouser's Appeal

Glouser filed a motion for relief under § 2255 on October 3, 1960. Therein he contended, in essence, that his conviction resulted from improper and illegal evidence, in that the court permitted his common law wife, Virginia Sue Tabor, to give testimony against him and that this error robbed the trial of due process requirements in violation of his constitutional rights. On November 10, 1960, Glouser filed an amended and supplementary motion to vacate in which the additional contention was made that the court improperly permitted the Assistant United States Attorney to cross-examine the witness Tabor by use of her grand jury testimony.

On or about February 15, 1961, the Honorable Robert Van Pelt, United States District Judge for the District of Nebraska, sitting by designation in the Southern District of Iowa, appointed Patrick D. Kelly, Esq., a member of the Des Moines, Iowa, Bar, to represent Glouser in connection with his applications for § 2255 relief. Mr. Kelly thereafter and on February 20, 1961, filed another amendment to Glouser's previous motions and in this motion the claim appeared that, in the absence of Glouser, the trial judge conducted a hearing in his chambers on the question of whether Virginia Sue Tabor was his common law wife, and that this proceeding contravened Glouser's constitutional right to be present at all stages of the trial.

Glouser, acting pro se in this court, while attempting to present six points for consideration, is placing special emphasis on the proceeding in the trial court's chambers which developed in this manner: During preliminary questioning of Virginia Sue Tabor, a Government witness, Roy W. Meadows, Esq., court-appointed attorney for Glouser, questioned her competency to testify on the ground that she was Glouser's wife by virtue of a common law marriage. The Judge announced that he would hear the matter in his chambers. Neither defendant nor his lawyer raised any objection to this suggestion. In chambers, with Glouser remaining in the court room, the court permitted Mr. Meadows to exhaustively examine Virginia Sue Tabor in an effort to establish the common law marriage.² At the conclusion of the hearing in chambers, the court ruled against the common law marriage contention. The trial was then resumed in the court room with Glouser present. The Government examined Tabor and elicited testimony pertinent to the offenses. Upon cross-examination of this witness Mr. Meadows was again permitted to delve into the relationship between the witness and appellant as it bore significance to the common law marriage issue but he did not renew the objection to Tabor's competency.

Rule 43 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides that "(t)he defendant shall be present * * * at every stage of the trial * * * except as otherwise provided by these rules." This provision is in accord with the cardinal principle that pervades the law of criminal procedure that after the indictment is found, nothing shall be done in felony cases except in the presence of the accused. 14 Am. Jur., Criminal Law, §§ 189-190; 23 C. J.S. Criminal Law, § 973; Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011; Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500; Ah Fook Chang v. United States, 9 Cir., 91 F.2d 805, 809; cf. Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, involving the rights of the defendant under the Fourteenth Amendment in a prosecution commenced under the laws of Massachusetts. But this right, even though derived from the constitution, may be waived in felony cases, not capital, generally on the theory that the right to be present is essentially for the benefit of the accused. 23 C.J.S. Criminal Law § 975; 14 Am.Jur., Criminal Law, § 199; Parker v. United States, 4 Cir., 184 F.2d 488, 489, 490; Johnson v. United States, 318 U.S. 189, 201, 63 S.Ct. 549, 87 L.Ed. 704, rehearing den. 318 U.S. 801, 63 S.Ct. 826, 87 L.Ed. 1164; United States v. Gore, D.C., 130 F.Supp. 117, aff'd Gore v. United States, 6 Cir., 234 F.2d 658, cert. den. 352 U.S. 982, 77 S.Ct. 384, 1 L.Ed.2d 365.³ In the instant case the facts and circumstances indicate a solid basis for the trial court's conclusion that "the Petitioner herein Glouser had sufficient knowledge of the facts to waive his presence and did so by proceeding with the trial without objection." However, the test for reviewability under a § 2255 proceeding is whether the appellant was deprived of the substance of a fair trial. This principle as stated by the Fourth Circuit in Howell v. United States, 172 F.2d 213, 215, cert. den. 337 U.S. 906, 69 S.Ct. 1048, 93 L.Ed. 1718, is apropos here:

"It is elementary that neither habeas corpus nor motion in the nature of application for writ of error coram nobis can be availed of in lieu of writ of error or appeal, to correct errors committed in the course of a trial, even though such errors relate to constitutional rights. It is only when there has been the denial of the substance of a fair trial that the validity of the proceedings may be thus collaterally attacked or questioned by motion in the nature of a petition for writ of error coram nobis or under 28 U.S.C.A. 2255." (Emphasis supplied.)

See also Taylor v. United States, 8 Cir., 229 F.2d 826, cert. den. 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500; Kyle v. United States, 2 Cir., 266 F.2d 670, cert. den. 361 U.S. 870, 80 S.Ct. 131, 4 L.Ed.2d 109; United States v. Walker, 2 Cir., 197 F. 2d 287, 288, cert. den. 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679; United States v. Angelet, 2 Cir., 255 F.2d 383, 384.

The examination of the witness Tabor is clear manifestation that Mr. Meadows was firmly conversant with all of the essential circumstances forming the basis for the alleged common law marriage. Thus it is difficult to perceive how defendant's presence could have been of material aid in developing facts which would have called for a different ruling on the question. Moreover, as we have seen, when the trial was resumed in the court with the appellant present, no additional objection was made to the witness testifying and, indeed, Mr. Meadows further probed the common law marriage issue. Upon careful consideration of the whole course of events, the conclusion is...