Kuhl v. United States, 19989.

• Decision Date: 18 November 1966
• Docket Number: No. 19989.,19989.
• Citation: 370 F.2d 20
• Parties: Edward C. KUHL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

370 F.2d 20 (1966)

Edward C. KUHL, Appellant, v. UNITED STATES of America, Appellee.

No. 19989.

United States Court of Appeals Ninth Circuit.

November 18, 1966.

Edward C. Kuhl, in pro. per.

Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges.

DUNIWAY, Circuit Judge:

On April 18, 1962, Edward C. Kuhl was convicted, after a jury trial, on five counts alleging violations of federal counterfeiting laws — four substantive (18 U.S.C. § 474 1964) and one conspiracy count (18 U.S.C. § 371 1964).¹ We affirmed on September 12, 1963. Kuhl v. United States, 9 Cir., 322 F.2d 582.

Kuhl thereafter filed in the same criminal proceeding the two motions which are before us on this appeal. One of these motions is denominated, "Motion to Hear Facts and Witnesses and to Determine the Validity of Illegally Seized Evidence." The other, which is supported by an affidavit and a statement containing allegations of fact and arguments, is entitled, "Motion for Hearing to Determine Legality of Search of Dwelling where Evidence Seized therefrom was Prejudicial to Petitioner."

By means of these motions, Kuhl questions the admission at his trial of exhibits consisting of articles obtained as the result of a search and seizure which took place at the home and garage of his co-defendant Edward R. Heisler. Among the items in question were the aluminum plates and photographic negatives referred to in the indictment, a photograph of Kuhl, photographic solutions and developing equipment, graph paper, a Multigraphic machine, and other materials. Kuhl asserts that the search and seizure was unlawful because it was general and exploratory, made solely to find evidence of Heisler's and Kuhl's guilt, and was therefore not reasonably incident to the arrest of Heisler.

The district court, treating the two motions as one (as we shall likewise do), and as made either under Rule 41(e), Federal Rules of Criminal Procedure, to suppress evidence, or under 28 U.S.C. § 2255 (1964), to vacate the judgment of conviction and sentence, denied them without hearing. This appeal followed.

I.

The district court correctly determined that the motion if treated as one made under Rule 41(e) to suppress evidence, must be denied. Such a motion must be made before or during the criminal trial.²

Treating the motion as made under 28 U.S.C. § 2255, the district court held that such a motion is not a proper vehicle for attacking the admission of evidence on the ground of unlawful search and seizure.

The district court is supported in this ruling by a long line of decisions of this court, the most recent being Williams v. United States, 9 Cir., 1962, 307 F.2d 366. We ordered a hearing en banc for the purpose of considering the view of District Judge William T. Sweigert, as expressed in his opinion in United States v. Winstead, N.D.Cal., 1964, 226 F.Supp. 1010, 1011, that this position must be re-examined in the light of Mapp v. Ohio, 1961, 367 U.S. 643, 655, 657, 81 S.Ct. 1684, 6 L.Ed.2d 1081, decided in 1961, and People of State of California v. Hurst, 9 Cir., 325 F.2d 891, decided in 1964.³ These cases stand for the proposition that federal habeas corpus is the means available to a state prisoner to get his constitutional search and seizure question before a federal trial court. On the other hand, a federal prisoner can get that question before a federal trial court at his criminal trial. It has been suggested that, for this reason, the federal courts would be justified in granting such relief to state prisoners in habeas corpus, while denying it to federal prisoners in section 2255 proceedings.⁴ For reasons hereafter stated, we do not reach this question.⁵

The Government argues that Kuhl does not have standing to raise the search and seizure question because he was not present at the Heisler premises at the time of the search, he did not reside on the premises, and there is no evidence showing he was connected with the renting of the premises.⁶ For the same reasons, we do not reach the question of standing.

II.

In support of its denial of the section 2255 motion without a hearing, the district court stated these additional reasons:

"The record is completely set forth in the transcripts of the trial and hearing on motion to suppress and has been reviewed on appeal. No further hearing is necessary. Petitioner was aware of the facts concerning the search of the Heisler residence. He was represented by counsel who was also aware of the facts but elected not to move to suppress. Petitioner acquiesced in the admission of this evidence at the trial. He appealed from the judgment of conviction and raised the question of illegal search and seizure. He cannot now relitigate the question by a motion under section 2255."

On Kuhl's direct appeal, he assigned as error the overruling of his objection to use of the evidence taken from Heisler's home and garage. This court did not reach the merits of that contention because it found that no such objection had been made either by way of a pretrial motion to suppress, or during the course of the trial. Kuhl v. United States, 9 Cir., 1963, 322 F.2d 582, 586. It follows that the search and seizure question which Kuhl now seeks to raise was not dealt with on the merits at either the criminal trial, or on the appeal therefrom.

The question remains whether, by failing to raise the search and seizure question on a pretrial motion to suppress evidence, or at the trial, Kuhl has deliberately by-passed procedures available to him in the criminal prosecution and, if so, whether this precludes him from raising the search and seizure question in this section 2255 proceeding.⁷ We hold that he has, and that it does. His counsel has effectively waived his claim.

It is urged in the dissent that we should order a hearing on these questions. We think that to do so here, in a case in which a defendant had a fair trial and was represented by competent counsel, would be to reach out to find support for a collateral attack on his conviction when his counsel elected, at the trial, not to assert the claim now made, and that we would be doing so on the basis of the flimsiest kind of allegations. These allegations are flatly contradicted by the record of his trial, which at most merely shows that counsel made a mistake of law. This is retrial by hindsight. We are against it.

In Kuhl's moving papers, the only allegations relating to the issue (apart from a description of the search of the Heisler house) are these:

"1. That the court erred in not ordering a motion to determine the validity of the search of the premises on its own, particularly after petitioner\'s attorney made a substancial sic objection to the search of the house, which brought to the attention of the court that there was a possible gross violation of petitioner\'s rights involved."

"Petitioner Alleges: That the United States District Court (Hon. Judge Sweigert presiding) erred in not ordering a hearing to determine the validity of the search of petitioner\'s alleged co-defendants (Edward R. Heisler\'s) premises located at 1914 Pablo Vista in San Pablo, California, particularly after noting that petitioner\'s attorney, (Mr. Preovolos) made a substancial sic objection to the search of the premises, (1914 Pablo Vista) which brought to the attention of the court that the search of the premises could be a violation of petitioner\'s rights guaranteed to him by the United States Constitution Amendments Four and Five."

* * * * * *

"Petitioner herein submits then, that the District Court erred in overruling his court appointed Attorney\'s objection to the exploratory search of his alleged co-defendant\'s premises at 1914 Pablo Vista without ordering a hearing to determine the legality of said search after it was thus brought to the attention of the court."

In support of these claims, Kuhl offered an affidavit of his trial attorney, Mr. Preovolos, reading in pertinent part as follows:

"On March 14, 1962, he filed with said Court on behalf of said defendant, EDWARD C. KUHL, a Motion to suppress evidence seized from defendant\'s automobile.

At the hearing of said Motion on April 12, 1962, before the Honorable WILLIAM T. SWEIGERT, United States District Judge, he attempted to object to introduction by the Government of evidence seized from the premises of EDWARD HEISLER, defendant\'s co-defendant, and was prepared to cite authority and fully argue the matter. However, his objection was peremptorily denied by Judge Sweigert; that in view of the Judge\'s attitude he saw no point in attempting to argue the matter further or to file a further motion to suppress the evidence found in the Heisler house.

No motion to suppress had been filed prior to hearing on the motion to suppress the evidence seized from defendant\'s car for the reason that it was not known until the hearing that the Government would attempt to use the evidence seized from the Heisler premises against the defendant Kuhl."

The present motion was made in the case in which Kuhl was convicted. The trial court, in considering the motion, was entitled to and did examine the trial transcript. This court has also examined it, on Kuhl's direct appeal (see our opinion, 322 F.2d 582). We have again examined it on this appeal. What does it reveal? It shows:

1. The only times that the question now sought to be raised was even mentioned to the trial court were two. The first time was during a pretrial motion to suppress other evidence taken from Kuhl's car, rather than the evidence taken from Heisler's house, and the only reference then made to a possibility that there might be a question as to the search of the Heisler house is this: A police officer who arrested Heisler and searched his home was on the stand.

"Q. by government counsel What, if anything, did you ascertain upon the

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