Michener v. Johnston, 10598.
| Decision Date | 28 February 1944 |
| Docket Number | No. 10598.,10598. |
| Citation | 141 F.2d 171 |
| Parties | MICHENER v. JOHNSTON, Warden. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edward F. Treadwell, of San Francisco, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and A. J. Zirpoli, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Before GARRECHT and HEALY, Circuit Judges, and McCORMICK, District Judge.
This is an appeal from an order discharging a writ of habeas corpus. The factual question involved is whether the petitioner competently waived his right to the assistance of counsel upon an arraignment. The court below held that he did.
In 1935 an indictment in two counts was returned in the United States Court for the district of Minnesota charging (1) that the petitioner and one Franzeen "did cause and procure to be made" a certain plate in likeness of a plate designed and prepared by direction of the Secretary of the Treasury for the printing of federal reserve notes, and (2) that the accused possessed the plate with intent to use the same in counterfeiting such notes. To this indictment, in May 1936, the petitioner pleaded guilty and was sentenced to imprisonment for fifteen years on each count, the terms of imprisonment to run consecutively. Petitioner was not represented by counsel at the time of his arraignment and sentence.
Application for release on habeas corpus, alleging that the petitioner had not competently waived his right to the assistance of counsel, was filed below in August 1942, and the writ was thereafter issued. At the hearing on return of the writ petitioner testified in his own behalf and was represented there, as he is here, by able and conscientious counsel appointed by the district court. In summary, his testimony was this: He was twenty-nine years of age at the time he was sentenced on the counterfeiting charges. He was then serving a sentence of thirty-five years in the Wisconsin state penitentiary pursuant to a judgment entered in 1935 on a plea of guilty to a charge of forgery.1 While so confined he was visited by an agent of the Treasury, who asked him to plead guilty to a charge of counterfeiting and who gave him to understand that the penalty was fifteen years, which was the most that would be given him. Several months later, after having been brought to Minnesota, petitioner spoke with Assistant United States Attorney Heisey in the latter's office, at which time Heisey asked petitioner and his co-defendant, Franzeen, to plead guilty to the counterfeiting charge. In this conversation Heisey made no mention of counsel or constitutional rights.
Further, petitioner testified that when he was taken before the court for arraignment on the counterfeiting charge the indictment and both counts thereof were read to him by the clerk, and petitioner stated that he understood the charges. He was asked what his plea was and he replied "guilty." Before sentence was passed he pleaded for leniency for his co-defendant Franzeen, and the court then sentenced him as above indicated. He made no protest or comment at that time relative to the sentence imposed; and no mention was made by the court or any of the officials present, either then or previous thereto, of his right to the assistance of counsel. He did not know that he was entitled to have counsel furnished to him on arraignment. Until after sentence was pronounced, he did not know that he was pleading to two separate counts of an indictment punishable as such. Petitioner admitted that at the time of his arraignment he was willing to receive a federal sentence, and preferred that rather than continue serving in the state penitentiary. He makes no claim of coercion.
From the petitioner's testimony it further appears that in 1926 he had been tried and convicted on a felony charge in an Oregon state court, on which occasion he had counsel, employed by his mother. At the time of his plea of guilty to forgery in Wisconsin in 1935, he had $300 and understood he could hire a lawyer if he wanted one, but the charges and possible penalties were fully explained beforehand, and he preferred to plead guilty. He did not, he said, see any need for a lawyer. The matter of counsel was not mentioned at all in the Wisconsin court. Petitioner had had a high school education, and while in the army had studied for admission to the military academy at West Point.
On the other side two depositions were introduced, one of the Treasury agent, Strout, and the other of Assistant United States Attorney Heisey. Strout testified that he visited petitioner twice on consecutive days in the Wisconsin penitentiary, and took notes on the interviews. The conversations pertained to the alleged counterfeiting offenses and other offenses. Strout did not know how many counts there were in the counterfeiting indictment, did not recollect being asked as to the possible sentence, and stated that he could not have told petitioner the extent of the penalty since he did not know what was in the indictment.
Heisey testified that when petitioner and his co-defendant were removed to Minnesota for trial on the counterfeiting charge, he had them brought to his office. According to his "invariable practice" he informed them with reference to the two charges contained in the pending indictment. He says: "I ascertained that they were without any substantial funds, and I told them that they were entitled to the assistance of counsel in the event they were not guilty and wanted to stand trial, and that they were entitled to a fair and impartial trial in any event." Upon being assured of this, petitioner in substance stated to Heisey that neither he nor Franzeen, on account of their previous records, had a chance of acquittal, and that it would be unwise for them to cause all of the trouble and expense that would be involved, should they contest their guilt. Petitioner, who wanted to do the bargaining (more especially to bargain on behalf of Franzeen), indicated that both men would be willing to plead guilty to one count, but Heisey insisted that they plead to the whole indictment. He told them that he would make no recommendation of leniency, but that if the men decided to plead guilty to both counts it was his duty to tell the court the whole story of their previous convictions and earlier criminal activities. The two men wanted a few days to think the matter over, and they were thereupon returned to jail. Heisey saw them again on the day of the arraignment and asked them what their decision was. They had decided, they said, to enter pleas of guilty to the whole indictment. Upon the arraignment Heisey informed the court, among other things, that the two defendants "had been informed of their constitutional rights fully, so far as I was concerned, and that both of them had indicated that they did not want counsel." Also, that petitioner was particularly anxious that Franzeen be shown leniency....
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...defendant has not met the burden of proof which the above-cited cases place upon him. Accordingly, we find as fact, Michener v. Johnston, 9 Cir., 1944, 141 F.2d 171, 175, that defendant waived his right to counsel in a competent, intelligent and understanding IV. Defendant was not Denied a ......
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