Michener v. United States, 13909.

• Decision Date: 24 April 1950
• Docket Number: No. 13909.,13909.
• Citation: 181 F.2d 911
• Parties: MICHENER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

181 F.2d 911 (1950)

MICHENER v. UNITED STATES.

No. 13909.

United States Court of Appeals Eighth Circuit.

April 24, 1950.

Elliott W. Michener, pro se.

John W. Graff, former United States Attorney, C. U. Landrum, present United States Attorney, and James J. Giblin, Assistant United States Attorney, St. Paul, Minn., were on the briefs for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal was submitted at a former term, and it appearing that no findings of fact and conclusions of law accompanied the final order sought to be reviewed, we remanded the case to the trial court with directions to make such findings and conclusions on the record as it then stood without retrial. Michener v. United States, 8 Cir., 177 F.2d 422. Our mandate was complied with and the record now includes the required findings and conclusions. Supplemental briefs have been filed and the reinstated appeal is again submitted for determination.

Statement.

It appears that the Minnesota federal court sentenced appellant on his plea of guilty on two counts of an indictment charging him with violation of 18 U.S.C.A. § 264, 1948 revision, Sec. 474, the appellant not being represented by counsel at either arraignment or sentence. The sentence dated May 12, 1936, was fifteen years imprisonment on each count of the indictment, to run consecutively. The first count charged that 170 F.2d 973, 974, "`* * * on or about August 25, 1934, at Number 316½ West First Street, in the City of Duluth, in the County of St. Louis, in the state and district of Minnesota, and within the jurisdiction of this Court,' the appellant and another `then and there being, unlawfully did cause and procure to be made a certain plate in the likeness of a plate designated and prepared by the direction of the Secretary of the Treasury of the United States, for the printing in the Bureau of Printing and Engraving of the United States, of that certain obligation of the United States, to wit:' * * *".

The second count charged that, "Appellant and another on the same date `* * * unlawfully did have in their control, custody and possession that certain plate * * * with intent then and there on the part of defendants to use said plate in counterfeiting Federal Reserve Notes * * *.'"

Appellant was twenty nine years of age at the time of the sentence and was then serving a thirty-five year sentence in the Wisconsin State Penitentiary pursuant to a judgment entered against him in Wisconsin in 1935 on his plea of guilty to a charge of forgery. The record shows that he was released from the Wisconsin Penitentiary in 1939 and was then taken into federal custody and is serving his federal sentence.

In 1942 appellant made application to the District Court in California for the writ of habeas corpus alleging that he had not competently waived his right to assistance of counsel at his arraignment and sentence. The writ was issued, and after a hearing on the return, at which time appellant was represented by counsel, the trial court ordered the writ discharged. On appeal, the Court of Appeals for the 9th Circuit remanded the cause for appropriate findings on the subject of appellant's competent waiver of assistance of counsel, that court holding "* * * A conclusion that there was an intelligent waiver of the right to the assistance of counsel upon arraignment could not properly be predicated merely on the finding that petitioner had been informed of his right to counsel `in the event he is not guilty and wants to stand trial.'" Michener v. Johnston, Warden, 141 F.2d 171, 175. Upon remand the lower court made and entered a finding that "petitioner intelligently, competently and intentionally waived his right of assistance of counsel." On second appeal to the 9th Circuit, Michener v. Johnston, Warden, 146 F.2d 129, 130, that court held that finding sufficient and affirmed denial of the writ.

On March 26, 1946, appellant filed a motion in the sentencing court in Minnesota to vacate judgment and sentence on the second count of the indictment, "for the reason that arraignment upon that Count was in violation of the former jeopardy clause as set forth in the 5th Amendment to the Constitution of the United States, and that said judgment and sentence are void." Appellant contended that "the same evidence which proves a violation of the first provision of the statute against manufacture is in itself sufficient to prove a violation of the second provision against (1) possession of a plate with (2) the intent that it is used or suffered to be used in printing counterfeit notes." From an order denying appellant's motion appeal was taken to this court which reversed and remanded the cause with direction to modify and correct the sentence and judgment by vacating that part which adjudged appellant guilty under count two of the indictment. Michener v. United States, 8 Cir., 157 F.2d 616. The Supreme Court reversed, 331 U.S. 789, 67 S.Ct. 1509, 91 L.Ed. 1818.

On December 5, 1947, appellant filed a motion in the sentencing court to vacate judgment and sentence on count one of the indictment "for the reason that that Count is lacking in essential averments and fails to charge a crime" * * * and that "defendant was thus deprived of the protection of the 6th Amendment." On appeal from a denial of the motion, we affirmed, Michener v. United States, 8 Cir., 170 F.2d 973.

On November 9, 1948, appellant filed the motion in the sentencing court, the denial of which is here appealed from, to vacate judgment and sentence under count two of the indictment, supra, on substantially the following grounds: (1) defendant's plea of guilty to count two was obtained by means of misrepresentations made to him by the Assistant United States Attorney; (2) defendant was deprived of his constitutional rights to due process because Assistant United States Attorney misstated to the trial court before the plea was entered that defendant had been fully informed of his constitutional rights; (3) the trial court failed in its solemn duty to protect the constitutional rights of the defendant; (4) defendant's plea of guilty to count two was not understandingly or voluntarily made. In support of his motion appellant attached thereto certified copy of the transcript of testimony of the Assistant United States Attorney who was alleged to have made the misrepresentations, appellant's own affidavit, the affidavit of the co-defendant Richard C. Franseen, and a copy of a letter from the United States Marshal addressed to appellant.

Opinion.

(1) Appellant contends that his plea of guilty to count two of the indictment was obtained by means of misrepresentation made to him by the Assistant United States Attorney, George A. Heisey, in that Heisey informed him that if appellant pleaded guilty to the indictment, that he, appellant, "would doubtless be allowed to begin service of his sentence in a federal penitentiary instead of being returned to Wisconsin." That Heisey gave appellant every reason to think that the matter lay within the trial court's discretion when Heisey well knew that the trial judge had no control over the same. That Heisey further informed appellant that "he would not be permitted to plead guilty to a part of the indictment, but only to the whole indictment." Relative to this issue of misrepresentation, the trial court made the following findings of fact, all of which appellant contends have no support in the evidence:

Finding VIII.

"That said defendant Michener was removed from Wisconsin State Prison to Duluth, Minnesota, for the purpose of arraignment in this case, and he was at that time serving a sentence or sentences of some 35 years and had several years at least, left to serve therein, and defendant then knew that no matter what happened in the case at Duluth, he would have to be returned to Wisconsin immediately after sentence in this case was imposed, to continue serving the remainder of his sentence there."

Finding X.

"That said defendant was not prejudiced or misled by the statement of Mr. Heisey that if he pleaded `guilty' at all, that he would have to plead `guilty' to both counts."

Finding XI.

"That said Heisey made no promise or representation to the defendant that if he entered a plea of `guilty' he could commence service of his Federal sentence immediately, other than to express a possibility thereof that he would speak to the Court about defendant's desire therein, and Mr. Heisey did advise the Court about defendant's desire in the matter and defendant was neither prejudiced nor misled in the premises."

Finding XII.

"That Mr. Heisey did not mislead said defendant into believing that it lay within the discretion of the Federal Judge to determine whether defendant would have to continue serving his sentence in Wisconsin State Prison, and defendant knew when he entered his plea of `guilty' that he would be returned to Wisconsin, and he believed that whether and when he would be released for service of the federal sentence would rest with the Wisconsin authorities."

Finding XIII.

"That defendant Michener was willing to plead `guilty' to any and all charges that were laid in the Indictment, and he desired no leniency because he believed that when he would be released from Wisconsin State Prison to commence service of the Federal sentence, would depend upon his receiving a long sentence in this case."

Finding XIV.

"That defendant's plea of `guilty' to count two was not obtained by any misrepresentation by Mr. Heisey to the defendant, or to the Court."

From a careful examination of the record we are unable to find any merit in the appellant's contentions that the court's findings are not supported by the evidence. There is nothing in the record to indicate Heisey made any promises to appellant in relation to appellant's desire of not returning to the Wisconsin Penitentiary. In the deposition by Heisey, attached to both...