Hanger v. United States

• Decision Date: 25 June 1970
• Docket Number: No. 20133.,20133.
• Citation: 428 F.2d 746
• Parties: Harold HANGER and Gale Mixen, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

428 F.2d 746 (1970)

Harold HANGER and Gale Mixen, Appellants, v. UNITED STATES of America, Appellee.

No. 20133.

United States Court of Appeals, Eighth Circuit.

June 25, 1970.

Harold Hanger and Gale Mixen filed brief and reply brief pro se.

Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., and James M. Gordon, Asst. U. S. Atty., filed brief for appellee.

Before MATTHES, HEANEY and BRIGHT, Circuit Judges.

HEANEY, Circuit Judge.

This is an appeal from a judgment of the Eastern District of Missouri denying without a hearing the § 2255 motion of the petitioners to vacate the judgment and sentences entered on June 16, 1967. We affirm.

The petitioners were convicted in the Eastern District of Missouri, in November, 1966, of bank robbery and conspiracy in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 371. A second trial was granted on the grounds of newly discovered evidence. In June of 1967, the petitioners were again convicted of bank robbery and conspiracy. The convictions were affirmed by this Court on direct appeal. Hanger v. United States, 398 F.2d 91 (8th Cir. 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969).

On this appeal, the petitioners allege: (1) that trial counsel's failure to obtain the grand jury minutes constituted inadequate assistance of counsel; (2) that there were insufficient facts in the affidavit presented to the United States Commissioner to constitute probable cause for the issuance of a search warrant; and (3) that the District Court erred in not holding an evidentiary hearing on the petitioners' § 2255 motion. We will discuss the petitioners' contentions seriatim.

I

Four persons were involved in the robbery of the Chippewa Trust Company of St. Louis on April 8, 1966: the petitioners; a third defendant, Loretta Meyer; and Marvin Riley. Riley confessed to his participation in the robbery, pled guilty to the charges against him in a separate trial, and became the principal witness for the government at both trials of the other three.

In his confession to the F.B.I. on April 13, 1966, Riley stated that he alone committed the robbery. On the motion of his attorney, Riley was sent to the Medical Center at Springfield, Missouri. His first statement to the psychiatrists there was that he had copied the robbery note from a detective magazine; he implicated no one else. Riley's second statement to the psychiatrists was that he was urged into the crime by his associates.

Before the grand jury on September 14, 1966, Riley implicated defendants Hanger, Mixen and Meyer. That same testimony was given by Riley at the first and second trials.

Riley's confession and the psychiatric reports were in the possession of Hanger and Mixen at the first two trials, and his testimony in the first trial was in their possession at the second trial.

On direct appeal to this Court the petitioners argued that the trial court erred in denying their motion to inspect the grand jury minutes. We rejected that contention, Hanger v. United States, supra at 95-98. The petitioners' present appeal appears to ask us to reconsider our former decision. We decline to do so.

The § 2255 petition may also be construed as arguing that trial counsel was inadequate for failing to request the grand jury minutes at the proper time.

The District Court, relying on Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967), rejected this claim on the grounds that (1) the grand jury minutes would have served only as corroborative impeachment evidence; and (2) an error in trial tactics does not give rise to a charge of inadequate assistance of counsel.

In Cardarella v. United States, supra at 230, we stated:

"The rule applicable is that a charge of inadequate representation can prevail `only if it can be said that what was or was not done by the defendant\'s attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court.\' Citations omitted."

See also, Churder v. United States, 417 F.2d 633 (8th Cir. 1969), aff'g per curiam, 294 F.Supp. 207 (E.D.Mo.1968).

While Riley's testimony may have been essential to the government's case, it is difficult to believe that the additional material would have affected the jury. The petitioners' counsel had in his possession and used in cross-examination Riley's confession to the F. B.I., his first and second inconsistent statements to the psychiatrists, and his testimony at the first trial.

II

At both trials, the petitioners moved to suppress evidence seized pursuant to a search warrant. The motion was made on two grounds: (1) that the places searched and the items seized were inadequately described in the affidavit and in the search warrant; and (2) that there were insufficient facts in the affidavit to constitute probable cause for the issuance of a search warrant. At both trials, the motion to suppress was denied. On direct appeal to this Court, the petitioners argued the first ground on the motion to suppress but abandoned the second ground. This Court affirmed the trial court's denial of the motion to suppress.

Now, in their § 2255 motion, the petitioners have raised their previously abandoned claim. While we might be justified in rejecting the claim on the grounds of intentional waiver, see, Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L.Ed.2d 148 (1963), we choose to consider the merits of the claim.

The affidavit presented to the Commissioner is set out in full in Appendix I to this opinion. In our view, the facts therein fully meet the standard of probable cause set out in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

As we read the affidavit, it shows that a crime had been committed, that Riley was involved in the crime, and that Riley had an accomplice. It also shows more than a simple assertion of police suspicion that Hanger was an accomplice. A police officer had seen Hanger riding with Riley in the car which Riley admittedly used for the robbery, at a time between Riley's two trips to the bank, and while Riley was wearing a false moustache. Under a common sense reading of this affidavit, there was probable cause to believe that Hanger was involved in the robbery.

III

The District Court denied the petitioners' § 2255 motion without holding an evidentiary hearing. The court stated:

"A review by this court of the lengthy files and records in these cases in which the defendants were given two trials does not disclose any reason for * * * having an evidentiary hearing, * * *"

It is clear that an evidentiary hearing need not be held where there is no dispute as to the facts or where the allegations of fact can be fully investigated in the files and records of the case without the presence of the petitioner. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Churder v. United States, supra; Taylor v. United States, 282 F.2d 16 (8th Cir. 1960). See also, Sanders v....