Peppard v. United States, 17050.

• Decision Date: 07 March 1963
• Docket Number: No. 17050.,17050.
• Citation: 314 F.2d 623
• Parties: Fred PEPPARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

314 F.2d 623 (1963)

Fred PEPPARD, Appellant, v. UNITED STATES of America, Appellee.

No. 17050.

United States Court of Appeals Eighth Circuit.

March 7, 1963.

Fred A. Newth, Jr., Little Rock, Ark., for appellant.

Charles M. Conway, U. S. Atty., Fort Smith, Ark., for appellee.

Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.

PER CURIAM.

Appellant, a practicing attorney at Hot Springs, Arkansas, was convicted, under 18 U.S.C. § 2315, of receiving, concealing, and disposing of United States Savings Bonds, in the amount of $12,500.00, alleged to be stolen, known by appellant to be so, and moved in interstate commerce in relation to appellant's unlawful acts. He was given a sentence of eighteen months in prison. The court denied him leave to appeal in forma pauperis on the ground that the appeal was frivolous. He then paid the docketing fee in this court and thereafter made application here for leave to proceed with the appeal in forma pauperis.

His application failed to make any specification of the questions or issues which he sought to raise. We requested him to provide such an indication as a basis for acting on the application. He thereupon filed a statement of the contentions which he desired to have presented, consisting in substance of the following:

(1) The court erred in denying his motion for a bill of particulars,

(2) The court arbitrarily refused to issue a writ of habeas corpus ad testificandum to have the Department of Justice produce an inmate of the Atlanta Penitentiary, named Childs, at the trial as a witness for appellant.

(3) The court improperly ruled that, as a matter of law, "the alleged offense was one involving interstate commerce".

(4) The court's instructions contained numerous errors which "appellant desires this court to review".

(5) Hearsay testimony was admitted on the trial as to statements and conversations about matters of which appellant was not even claimed to have had knowledge at the time they occurred.

(6) The Government was permitted to introduce evidence which was irrelevant and immaterial to the question of appellant's guilt but which was "calculated to inflame and prejudice the jury against the appellant".

We appointed the attorney, who had been employed by appellant on his trial, to represent him on his application here and requested that a statement or summary of the evidence of which he complained be prepared, in collaboration with the United States Attorney, and filed. This has been done, and such statement, the files of the District Court, and a copy of the court's instructions are before us.

From the face of this material, we must hold that each of the questions sought to be presented by appellant is legally frivolous.

No room exists for any contention that the court abused its discretion in denying appellant's motion for a bill of particulars, since plainly what the motion sought was information as to details of the Government's proof and not of particulars going to the description of the offense.

Also, there is no legal basis on which to argue that the court acted arbitrarily in refusing to issue a writ of habeas corpus ad testificandum for the producing of Childs from the Atlanta Penitentiary, since the circumstances involved were, undisputedly, (a) that appellant and his counsel were notified approximately two months before the trial that the case was set for April 16, 1962; (b) that, upon the filing of a motion by appellant to have the Government disclose the prison locations of Childs and two other convicts named Aderholt and Easterling, the court, on March 19, 1962, by letter, advised appellant's counsel that writs of habeas corpus ad testificandum had been issued at the request of the United States Attorney for the production of Aderholt and Easterling, who were confined at other institutions, but not for the production of Childs, who was then at Atlanta, and, if counsel intended to file a motion to obtain the presence of Childs, within the prescriptions of Rule 17(b) of the Rules of Criminal Procedure, the court would give consideration to the motion; (c) that no further motion was filed by appellant until April 12, 1962, four days before the trial; and (d) that the motion so filed merely made allegation that Childs' testimony was "vital and important" to appellant, but did not state, as required by Rule 17(b), "the testimony which he the witness is expected by the defendant to give if subpoenaed" and did not show that "the defendant does not have sufficient means and is actually unable to pay the fees". (Not even here has appellant indicated what testimony he expected Childs to give.)

Passing to appellant's contention 3 — appellant is wholly mistaken in his assertion that the court ruled that, as a matter of law, interstate commerce was involved as to the alleged offense. On the contrary, the instructions specifically left it to the jury to determine, not merely whether the bonds were stolen, and whether, if appellant received,...