McDonald v. United States

• Citation: 282 F.2d 737
• Decision Date: 14 September 1960
• Docket Number: No. 16639.,16639.
• Parties: Kenneth J. McDONALD, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

282 F.2d 737 (1960)

Kenneth J. McDONALD, Appellant, v. UNITED STATES of America, Appellee.

No. 16639.

United States Court of Appeals Ninth Circuit.

September 14, 1960.

Arthur H. Tibbits, David L. Skinner, Jr., San Francisco, Cal., for appellant.

Howard W. Babcock, U. S. Atty., Arthur M. Taylor, Jr., Las Vegas, Nev., for appellee.

Before BARNES and HAMLIN, Circuit Judges, and POWELL, District Judge.

BARNES, Circuit Judge.

Appellant was convicted by a jury of violating 18 U.S.C. § 2421, commonly known as the Mann Act. His conviction was not appealed. After serving two years of his five year sentence, appellant moved to vacate and set aside the judgment under 28 U.S.C. § 2255. After the preparation of the manuscript of the trial proceedings, a hearing was held by the district court, at which appellant was represented by counsel, but was not personally present. After the hearing, this motion to vacate and set aside the sentence was denied. This is an appeal from such denial. This Court has jurisdiction of the appeal.

At the original trial appellant was represented by appointed counsel. At the § 2255 hearing, he was represented by appointed counsel. On this appeal, still other appointed counsel represented him. This Court cannot refrain from expressing satisfaction in reading a record such as that which is now before us, disclosing as it does the willingness of four several counsel to give of their time and energy without compensation, in order that a defendant and appellant with limited funds may have the ingenious and enlightened representation that has so evidently here been received by such appellant. We thank each such counsel for their readiness so to act, in accord with the finest traditions of our legal system.

Appellant relied on five contentions in support of his motion. They were:

1. Appellant was convicted by perjured testimony.

2. Appellant was prejudiced by the publication of a newspaper article.

3. Appointed counsel at the trial neglected and refused to subpoena a witness who would have vindicated appellant.

4. Appointed counsel at the trial was guilty of neglect and malpractice.

5. Petitioner was deprived of his constitutional rights and subjected to cruel and unusual punishment while held in the city jail.

On this appeal, appellant urges for the first time three points not urged below. First, that he had no preliminary hearing, and his arraignment was delayed; second, that his bail was raised from $3,000 to $7,500 in his absence; and third, delay in hearing the motion to vacate sentence resulted in a deprivation of due process. Additionally, appellant urges, as he did below, the following errors: fourth, that inflammatory press reports which appeared in the local newspaper on the day his case was called for trial and commenced, prevented him from having a fair and impartial trial; fifth, appellant did not have the effective assistance of counsel at his trial, or at the hearing of his motion to vacate sentence; and sixth, that appellant was entitled to be present at the hearing on his motion to vacate sentence. We consider each in turn.

So as to avoid confusion, we refer to the five volumes of the "Manuscript of Record" as Transcript I to V, inclusive; the "Supplemental Transcript of Record" as Transcript VI; the "Second Supplemental Transcript of Record" as Transcript VII; and the "Third Supplemental Transcript of Record" as Transcript VIII.

Appellant urges first he had no preliminary hearing, and that his bond was raised to $7,500 in his absence. He says this is so. The "Supplemental Transcript of Record" (Transcript VI) certified by the Clerk of the District Court, contains a copy of the United States Commissioner's "Record of Proceedings in Criminal Cases," dated October 24, 1956, showing that a complaint was filed against appellant, that he was arrested on that day, and charged with a Mann Act violation (18 U.S.C. § 2421); that he was advised on the day of his arrest of the nature of the complaint made against him; of his right to obtain counsel; and of his right to have a preliminary hearing. It further recites he already had counsel, "a Mr. Harry Claiborne," and that he "waived preliminary hearing before the Commissioner."

The "Second Supplemental Transcript of Record" (Transcript VII) shows that on November 21, 1956, appellant appeared in court without an attorney; an attorney was conditionally appointed for him (Mr. Ray Earl); appellant was arraigned and a copy of a grand jury indictment was handed him. It shows appellant entered a plea of not guilty. His attorney moved the court to reduce the previously set $5,000 bond. This motion was granted, and bail was fixed at $3,000. On November 23, 1956, the same transcript shows that Mr. Earl was relieved as appellant's attorney, and that Mr. Harry E. Claiborne was appointed to represent appellant.

Transcript I contains and shows the indictment filed. Transcript VIII contains the stenographic report of the proceedings of November 21st and November 23rd, 1956. These confirm the court's records.

Nowhere, except through appellant's bald statement, is there any evidence that appellant's bail was raised or changed in any way after its reduction to $3,000. In his petition, appellant states: "Later that evening a City Jailor told me my bail had been raised to $7,500." Apparently appellant never sought confirmation of that hearsay, nor did he ever ask his attorney about such an alleged raising of bail, for no mention is made of such inquiry by appellant. The very newspaper story to which appellant makes objection on other grounds (and which will later be considered) stated on the day his trial commenced that his bail was $3,000.

There seems no basis for relief at this time, subsequent to conviction after indictment, even though the appellant had no preliminary hearing on the original complaint, and even though his bail had been raised to $7,500. But we find no credible evidence that either of such events (i. e., failure to arraign and raising of bail) took place. We find no error in the trial court's holding that they did not.

Appellant claims a delay in the hearing of his motion for relief under section 2255. There was delay, but it was occasioned largely by the necessity of obtaining a complete transcript of the evidence given against appellant at the trial. His petition was filed October 16, 1958. On December 30, 1958, the court below appointed Lester H. Berkson, Esq., as counsel for defendant on all matters pertaining to said motion to vacate and set aside the sentence. After conferences between appellant and his attorney, Mr. Berkson asked the court below to order a complete transcript of proceedings at the trial. Such an order was entered on March 4, 1959, "without payment of costs by petitioner." Two continuances of the hearing were then requested by appellant's counsel. (June 3, 1959 to June 18, 1959, and June 18, 1959 to June 29, 1959. Tr. Vol. I, p. 49.) While there was some delay between the filing of the petition on October 16, 1958, to the appointment of counsel, this was a matter requiring thorough preliminary consideration by the district court. He could not drop all business relating to unconvicted prisoners in order to facilitate his consideration of appellant's petition. After the appointment of counsel, any further delay was incidental to the obtaining and study of the transcript and necessary for the protection of, and beneficial to, the appellant. We find no prejudicial delay.

We next turn to the grounds urged below, and decided there. The theme of appellant's first point is that he should have been believed by the jury, and the two witnesses who participated in the sordid happenings should have been disbelieved. That their testimony was "perjured lies" was to be shown, swore appellant, through "new evidence." This "new evidence" was attached as Exhibit A to the petition. It is a purported statement by one Delbert Glenn Holms witnessed by one Ronald E. Anderson. It is dated November 20, 1956, but is witnessed August 15, 1958. (Holms was a jailmate of appellant and one William Elmenhorst.) In it one witness who testified against appellant (William Elmenhorst) is alleged to have spoken to Holms and taken all the blame for forcing his then wife (the second witness against appellant) into prostitution. Elmenhorst is further alleged to have admitted he and his wife "framed" the appellant.

This was not new evidence, either theoretically or actually. The appellant states he showed it to both attorneys appointed before the trial. Appellant thus knew of what Holms would have testified to prior to trial. The attorney who represented appellant (Claiborne) remembered the statement well. It was thoroughly discussed with appellant before his trial. Mr. Claiborne had decided not to use Holms' testimony, for "he was suspicious of it." This suspicion arose from four circumstances: (a) The statement used the same language as had appellant in describing the matters — "it used defendant's words in detail." (b) Appellant had notified no one of the statement until after Holms had left the jail. (c) Holms had been confined in the tank with appellant McDonald. (d) Holms gave his "statement individually" to appellant and not to another inmate or to a jailor.

Whether right or wrong, Claiborne made a decision as to trial strategy, and advised against the use of the witness Holms. Claiborne says appellant agreed Holms should not be used, and Holms was not used as a witness.

In this connection, a letter written by appellant to Claiborne immediately after the trial at which he was convicted was before the district court in the hearing of this motion below. It is of considerable significance. It reads as follows:

"Dear Harry:

I just wanted to drop a line and thank you for the wonderful fight you put up for me. I know losing meant as much to you as it does to me. (Well almost). I have written my father and told him of the fine job you

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