McDonald v. Hudspeth
| Decision Date | 19 April 1941 |
| Docket Number | No. 525.,525. |
| Parties | McDONALD v. HUDSPETH, Warden. |
| Court | U.S. District Court — District of Kansas |
John F. Rhodes, of Kansas City, Mo., for petitioner.
S. S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for the government.
The action is one in habeas corpus, one much out of the ordinary. To the writer of this opinion, it appears that the petitioner Cassius McDonald might be likened to one near a whirlpool who was engulfed by swirling waters. He was indicted with the Bremer kidnappers. He was tried with two other defendants who had participated in the enterprise from its very formation, but guilt of the petitioner was claimed by the Government only on the ground that he entered into the conspiracy months after the kidnapping and for the purpose of exchanging some of the ransom money. In fact, on the trial the Government excluded petitioner from any participation in the kidnapping and transportation of Bremer. He was tried in Minnesota, whereas his part of the crime was claimed by the Government to have taken place in Florida.
The petitioner was indicted in the District Court of the United States for the District of Minnesota (United States v. Alvin Karpis, et al.). The indictment charged that McDonald had conspired with such others to kidnap, transport interstate, and hold for ransom one Edward George Bremer, in violation of 18 U.S.C.A. § 408c. Petitioner was tried, found guilty, and sentenced to imprisonment in the penitentiary for a term of fifteen years. He appealed to the Eighth Circuit Court of Appeals, which affirmed the decision of the lower court. McDonald v. United States, 8 Cir., 89 F.2d 128. Certiorari was denied by the Supreme Court of the United States, 301 U.S. 697, 57 S.Ct. 925, 81 L.Ed. 1352. Petition for rehearing was also denied by the Supreme Court of the United States, 302 U.S. 773, 58 S.Ct. 4, 82 L.Ed. 599, and thereafter that Court denied an application for writ of coram nobis. 303 U.S. 622, 58 S.Ct. 640, 82 L.Ed. 1085.
On October 20, 1938, petitioner filed this petition for writ of habeas corpus. He appeared without counsel. This court first appointed as his attorney John M. Williams, of Topeka, and later John F. Rhodes, of Kansas City, Missouri, who now appears for petitioner and who has devoted much time, energy, and expense on petitioner's behalf.
Edward George Bremer was kidnapped in St. Paul, Minnesota, January 17, 1934. On February 6, 1934, Bremer was released after payment in his behalf of some $200,000 in ransom money. Thereafter, the actual kidnappers, ten in number either died or were apprehended by the government, and some of them were convicted. While petitioner did not participate in the kidnapping, as was admitted by the District Attorney in Minnesota, he was tried on a conspiracy charge jointly with two of those who did participate in that enterprise, and was convicted in January, 1936. He was committed to the United States Penitentiary at Leavenworth, Kansas, where he has since been confined.
The indictment upon which petitioner was tried and convicted charged that the petitioner did unlawfully conspire, confederate and agree with various and divers persons to violate the Act of Congress which forbids transportation in interstate commerce of any person kidnapped or otherwise unlawfully detained. No place, state or locality where he did so conspire was established.
The indictment charged specific overt acts by McDonald as follows:
Petitioner was not charged with knowingly exchanging any ransom money at any time. He was first indicted in Florida for the offense of which he was subsequently indicted and convicted in Minnesota. The Florida indictment was allowed to pend until long after his conviction in Minnesota and was finally dismissed by the government. One of the defendants charged jointly with petitioner in the Florida indictment was later tried, and the court directed the jury to return a verdict of not guilty in his case, which was done.
On petitioner's trial in Minnesota, the question of venue and jurisdiction of that court was not raised and, in my opinion, there was no evidence on the trial of that case warranting the court retaining jurisdiction over the petitioner. He was tried in a jurisdiction wherein no offense was in fact proved against him. Petitioner was charged with a conspiracy. No venue was laid in this respect, but venue of the overt acts was laid in Florida. The evidence on petitioner's trial and conviction showed that if there was a conspiracy, it took place outside the district and state of Minnesota.
On petitioner's trial and conviction in Minnesota, an attorney appeared for him, but it appears clearly to me petitioner had no effective assistance of counsel because of the attorney's continual intoxication. Petitioner was not permitted to testify in his own behalf for the reason the attorney declined to put petitioner on the stand, although requested by him to do so. Likewise, he declined to use witnesses produced by petitioner. The attorney was constantly incapacitated and under the influence of liquor throughout the trial, I am convinced, to an extent that he was wholly incompetent and ineffective on petitioner's behalf. The attorney on several occasions was assisted or led from the courtroom and without halt in the trial proceedings. This inability and intoxication of petitioner's counsel on his trial in Minnesota was established in this proceeding to my mind beyond question not only by petitioner's own testimony but by the testimony of counsel for other defendants on that trial, by representatives of the press, court attaches, and by the transcript of the record of that trial.
The petitioner has strongly urged two main points:
1. That venue was improperly laid in the District of Minnesota and that that court had no jurisdiction of the petitioner Cassius McDonald.
2. That petitioner McDonald was not represented by counsel on his trial in the federal district court of Minnesota as contemplated by the Constitution of the United States and that such right was not waived.
1. Respecting venue and jurisdiction of the federal court in Minnesota. The charge against McDonald was that he conspired to kidnap and transport the kidnapped person in interstate commerce in violation of 18 U.S.C.A. §§ 408a and 408c. These statutes in part read:
"Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away by any means whatsoever and held for ransom or reward or otherwise * * *." Sec. 408a.
"If two or more persons enter into an agreement, confederation, or conspiracy to violate the provisions of sections 408a and 408b of this title, and do any overt act toward carrying out such unlawful agreement, confederation, or conspiracy, such person or persons shall be punished in like manner as provided for by said sections." Sec. 408c.
Specifically, McDonald was charged under the last section above quoted. It was charged that he conspired to violate the first section quoted above. There was no evidence on his trial that McDonald conspired at any time in the state of Minnesota as charged in the indictment, and the Government in the course of the trial exonerated McDonald from any participation in the actual kidnapping; guilt being attributed to McDonald wholly upon the claim that some months after the kidnapping and release of Bremer, McDonald undertook the task of exchanging money paid as ransom for Bremer's release. The overt acts attributed to McDonald, quoted above, were all alleged to have been done in Florida and in Cuba. And, irrespective of the charges set out in the indictment, the evidence produced by the Government to establish the guilt of McDonald was wholly to the effect that if he did anything at all in the way of conspiring, confederating, and committing acts in furtherance thereof, it was all done in Florida and Cuba, and not within the district of Minnesota.
The sixth amendment to the Constitution of the United States carries the mandate that an "accused shall enjoy the right to a speedy public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law."
The law has been established by repeated decisions and by the wording of the statute quoted above, that to conspire is not an offense of itself but that it is the overt act in furtherance of a conspiracy that completes the offense. Dimond v. Shine, 199 U.S. 88, 25 S.Ct. 766, 50 L.Ed. 99; United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211.
The charge of the Government and certainly the only evidence put forth by the Government to support the charge had to do with McDonald's activities in Florida and Cuba. There was neither charge nor proof sufficient to give the court in Minnesota jurisdiction over the petitioner.
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