Lampe v. United States

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Citation: Lampe v. United States, 288 F.2d 881, 110 U.S.App.D.C. 69 (D.C. Cir. 1961)
• Decision Date: 09 March 1961
• Docket Number: No. 15383.,15383.
• Parties: Virgil V. LAMPE, Appellant, v. UNITED STATES of America, Appellee.

110 US App. DC 69, 288 F.2d 881 (1961)

Virgil V. LAMPE, Appellant, v. UNITED STATES of America, Appellee.

No. 15383.

United States Court of Appeals District of Columbia Circuit.

Argued November 16, 1960.

Decided March 9, 1961.

Mr. Monroe H. Freedman, Washington, D. C., with whom Mr. Alvin L. Newmyer, Jr., Washington, D. C., was on the brief, (both appointed by this court) for appellant.

Mr. Carl W. Belcher, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Arnold T. Aikens, Asst. U. S. Atty., were on the brief, for appellee.

Before WILBUR K. MILLER, Chief Judge, and EDGERTON, PRETTYMAN, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges sitting en banc.

WASHINGTON, Circuit Judge, with whom WILBUR K. MILLER, Chief Judge, and PRETTYMAN, DANAHER, BASTIAN and BURGER, Circuit Judges, concur.

Lampe was convicted of second degree murder, and on appeal we affirmed the judgment. Lampe v. United States, 1956, 97 U.S.App.D.C. 160, 229 F.2d 43. Later, Lampe filed a series of motions to vacate his sentence, under Section 2255 of Title 28 U.S.C. The District Court, in denying the third of these motions, allowed an appeal in forma pauperis. We appointed counsel, who urged a ground not contained in the petition before the District Court, namely, that a confession by Lampe introduced at his trial "was not the product of any meaningful act of volition." See Blackburn v. State of Alabama, 1960, 361 U.S. 199, 211, 80 S.Ct. 274, 282, 4 L.Ed.2d 242. A panel of this court, by judgment entered May 12, 1960, affirmed the action of the District Court. A rehearing en banc was thereafter ordered.

In the first place, since the petition before the District Court did not raise the point on which counsel now relies, it cannot be raised on appeal. Plummer v. United States, 1958, 104 U. S.App.D.C. 211, 260 F.2d 729. In the second place, the point now at issue was urged at Lampe's trial, was fully explored there, and was decided against him. Lampe took a direct appeal following his conviction, and was represented here by two able court-appointed counsel. In an opinion written for a unanimous division, we said, among other things:

"Lampe\'s counsel objected at the trial to the admission of the confession `on the ground that the man was incompetent to dictate it.\' Thereupon the court heard evidence on that subject in the absence of the jury, after which the jury was recalled and heard six witnesses as to Lampe\'s condition when he confessed. The trial judge carefully charged the jury to decide for itself whether the confession was voluntary, not only as to Lampe\'s competency to make it, but also in all respects. The appellant did not argue here that his confession was erroneously received." Lampe v. United States, supra, 97 U.S.App. D.C. at page 162, 229 F.2d at page 45.

Lampe thus received a full hearing at his trial on the issue of his competency to confess, and the voluntariness of his confession. He had "full opportunity to attack on his trial the evidence now challenged and to appeal on the basis of its erroneous admission if he so desired," Smith v. United States, 1950, 88 U.S.App.D.C. 80, at page 86, 187 F.2d 192, at page 198, certiorari denied, 1951, 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358. He made such an attack at the trial, but did not renew it on appeal. Nevertheless, this court on appeal did notice (as we have seen) the objection made at trial.

Jordan v. United States, 352 U. S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114, reversing 1956, 98 U.S.App.D.C. 160, 233 F.2d 362, is not relevant here. Our opinion there recognized that the contention that the accused had not received a speedy trial might in an extreme case be raised in a Section 2255 proceeding, even though it had not been raised at trial or on appeal from the conviction. But we did not regard Jordan's situation as being so extreme as to point to the setting aside of the conviction, or to require a hearing. The Supreme Court, evidently regarding the facts there raised as being sufficiently exceptional to require an evidentiary hearing, vacated our judgment, without opinion, and remanded the case to the District Court for such a hearing. The Supreme Court's decision is not by any means to be regarded as a holding that where (as in the instant case) a point has been raised at trial, and there fully explored, but abandoned on appeal, the accused is entitled to raise the same point again in a Section 2255 proceeding, and obtain an evidentiary hearing. Such a view is simply not consistent with the orderly administration of justice. The instant case and Jordan's are poles apart. Lampe had a full hearing, at his trial, on the point now urged collaterally. Jordan did not.

It has always been the custom of this court "in cases of serious criminal offenses, to check carefully the record for error prejudicial to defendant which he did not urge," either at the trial or in this court. See Williams v. United States, 1942, 76 U.S.App.D.C. 299, 300, 131 F.2d 21, 22; Tatum v. United States, 1951, 88 U.S.App.D.C. 386, 388, 190 F.2d 612, 614, and cases there cited. The detailed opinion of the division in Lampe's direct appeal shows that the entire record of the trial was scrutinized with care, in accordance with our practice, and found to be free of reversible error. Under the decision in Smith, the admission of the confession cannot now be challenged.

The order of the District Court will be

Affirmed.

FAHY, Circuit Judge, with whom EDGERTON and BAZELON, Circuit Judges, join (dissenting).

The opinion of the court says: "Since the petition before the District Court did not raise the point on which counsel now relies, it cannot be raised on appeal. Plummer v. United States, 1958, 104 U.S.App.D.C. 211, 260 F.2d 729." But in Plummer the District Judge had been "unaware of any such claim" as the appellant sought to assert in this court on his appeal from denial of a motion to vacate sentence under 28 U.S.C. § 2255. Ibid. In Plummer, therefore, a divided court held that orderly procedure required a new motion in order that the District Court might have an opportunity to pass upon the appellant's claim. But Lampe repeatedly asserted in the District Court his claim that a confession used in evidence at his trial was not the product of a meaningful act of volition. He asserted this claim in the trial itself, though he did not urge it on appeal from his conviction. He also asserted it in motions for relief under section 2255, though not in the particular motion the denial of which is now here on appeal. It would serve no useful purpose to postpone ultimate decision in order that what has already been presented several times to the District Court may be presented to it once more.

We would reverse the order of the District Court of August 3, 1959, which denied without a hearing appellant's motion under 28 U.S.C. § 2255. We think appellant should be given an opportunity to prove if he can that the confession used at his trial was made when he was so affected by drink that it was not admissible in evidence because he was incompetent to make it.

In Jordan v. United States, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114, this court had ruled against Jordan's right collaterally to attack his conviction on a ground which he had failed to raise on his earlier appeal from the conviction. 98 U.S.App.D.C. 160, 233 F.2d 362. The Supreme Court reversed this court. The present case arises in similar circumstances.

In Smith v. United States, 88 U.S. App.D.C. 80, 187 F.2d 192, certiorari denied, 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358, we held that error in admitting a confession was not to be corrected on collateral attack where direct attack had not been prevented by lack of representation by counsel, but the opinion recognizes that exceptional circumstances may open such a conviction to collateral attack. Under neither the previous nor later decisions does lack of counsel preempt the possibilities of exceptional circumstances. We think exceptional circumstances are present in our case.

Hodges v. United States, as decided on rehearing en banc, 108 U.S.App.D.C. 375, 282 F.2d 858, 865, certiorari granted, 81 S.Ct. 702, 5 L.Ed.2d 690, appears to us not to be consistent with Smith. Hodges was denied the opportunity to prove that his failure to appeal was due to the absence of representation by counsel after sentence, coupled with ignorance of his appeal rights. And as was pointed out by Judge Edgerton, Judge Bazelon and myself in Hodges,

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