Pigford v. U.S.

• Decision Date: 01 July 1975
• Docket Number: No. 75-1627,75-1627
• Citation: 518 F.2d 831
• Parties: Richard Thomas PIGFORD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 831

518 F.2d 831

Richard Thomas PIGFORD, Appellant, v. UNITED STATES of America, Appellee.

No. 75-1627.

United States Court of Appeals Fourth Circuit.

Submitted Feb. 17, 1975.

Decided July 1, 1975.

Richard Thomas Pigford, petitioner pro se.

Thomas P. McNamara, U. S. Atty., for respondent.

Before RUSSELL, FIELD and WIDENER, Circuit Judges.

PER CURIAM:

Petitioner, Richard Thomas Pigford, was convicted on a criminal information charging bank robbery and armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d). The convictions were affirmed by this Court in United States v. Pigford, 461 F.2d 648 (4th Cir. 1972). Petitioner subsequently filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. The district court denied the motion, and this appeal follows.

Petitioner's motion to vacate sentence was filed on November 1, 1972 and was amended on November 20, 1972 and again on May 21, 1973. Considering all three petitions, the claims raised by petitioner are as follows: (1) lack of subject-matter jurisdiction; (2) indictment invalid because not returned in open court; (3) statement indicating prejudice made by juror prior to trial; (4) suppression of evidence; (5) hearing on motion for continuance held in presence of venire; (6) insufficiency of criminal information; (7) vagueness of jury verdict; and (8) insufficiency of evidence.

Petitioner's first two claims were dismissed by the district court in an order dated February 9, 1973. The Court then held an evidentiary hearing on claims (3), (4) and (5); an additional issue, denial of right to be tried on indictment, was raised at the hearing. Claims (6), (7) and (8) were decided on the record. Relief was denied as to all of these claims by order dated February 8, 1974.

With respect to his first claim, lack of subject-matter jurisdiction, petitioner contends that the United States does not have the pecuniary interest in the Federal Deposit Insurance Corporation (FDIC) required to support federal jurisdiction over the crime of robbing a bank insured by the FDIC. Citing 28 U.S.C. § 1349, which provides that

(t)he district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock,

petitioner alleges that the FDIC retired the capital stock owned by the government in 1947-48, and that the United States therefore no longer has jurisdiction to prosecute bank robbery cases under 18 U.S.C. § 2113.

This contention is without merit. Section 1349 pertains only to civil actions, not criminal prosecutions. All that is required here for jurisdiction under Section 2113 is that it be established that the bank in question was insured by the FDIC on the date of the robbery. This was stipulated at petitioner's trial. Nor is there any merit in petitioner's contention that there is no jurisdiction because the FDIC insures only against losses caused by bad banking practices or "financial irregularities," not against robbery. The use of the term "insured by the (FDIC)" in Section 2113(f) is for the purpose of identifying which banks are covered by Section 2113, and warrants no inference as to the coverage of FDIC insurance.

Petitioner's second claim is that an indictment was not returned in open court. This claim is without merit, since petitioner waived prosecution by indictment and elected to be tried on a criminal information instead. The additional claim raised at the evidentiary hearing on this petition, relating to the denial of his right to be tried on an indictment, is without merit for the same reason.

With regard to his third claim, petitioner alleges that before his trial one of the male jurors, in a conversation with a United States deputy marshal, stated that he knew petitioner was guilty, and this statement was allegedly overheard by one Willie Smith, a prisoner in the custody of the marshal at the time of the conversation. Smith testified at an evidentiary hearing held in the district court. He identified Lee W. Tart as the deputy marshal involved in the conversation. However, while he stated that one of the alternate jurors resembled the man who made the statement, he was unable to make a positive identification, and he stated positively that none of the other jurors had made the statement. In addition to Smith's testimony, the district court heard testimony by all male members of the jury that tried petitioner's case, including the alternates, and by Deputy Marshal Tart, to the effect that they had not participated in the alleged conversation. The record also includes affidavits to the same effect on the part of all the deputy marshals present for the term of court at which petitioner's trial took place.

On the basis of the above evidence, the district court found as a fact that the alleged conversation between a male juror and a deputy marshal did not occur. This Court will not set aside a district court's findings of fact unless they are "clearly erroneous." Fed.R.Civ.P. 52(a); Glasscock v. United States 323 F.2d 589 (4th Cir. 1963). In light of the evidence presented, we cannot say that the finding in question here was erroneous. In any event, even assuming arguendo petitioner's allegation to be true, the juror in question was an alternate juror who did not participate in the deliberations and verdict of the jury, and thus no prejudice resulted to petitioner from any failure to exclude him as a juror.

As to his fourth claim, petitioner contends that the government suppressed evidence that would have tended to prove that the pistol used in the bank robbery was incapable of being fired, and therefore not a dangerous weapon. Petitioner alleges that one Francis Mulholland, an FBI agent, told petitioner's attorneys after the trial that the pistol was not capable of being fired, and claims that although Mulholland was present at the trial, he made no attempt to correct testimony to the contrary. Mulholland, however, testified at the evidentiary hearing that it was his opinion that the pistol was capable of being fired, that he would have testified to that effect at petitioner's trial if he had been asked about the pistol, and that he never told anyone that the pistol was a harmless weapon. The district court found as a matter of fact that the government did not suppress any evidence tending to prove that the pistol used in the bank robbery was not a dangerous weapon. Again, in light of the evidence presented, we cannot say that this finding was clearly erroneous. Cf., United States v. Shelton, 465 F.2d 361, 362-3 (4th Cir. 1972).

Petitioner's fifth contention is that he was prejudiced because the court heard his motion for a continuance in the presence of the venire. However, petitioner made no request that the venire be excused during the hearing on the motion; nor did he challenge the panel selected from that venire. Petitioner knew or should have known at the time the jury was empanelled that the venire had been present during the hearing, and thus his failure to object at that time operated as a conclusive waiver of his right to challenge the panel. Batsell v. United States, 217 F.2d 257, 260 (8th Cir. 1954).

In any event, even assuming arguendo that statements made in the course of the hearing were potentially prejudicial and that they were in fact heard by members of the jury that was later empanelled, the jurors presumably were examined on voir dire as to their ability to render an impartial verdict, and were sworn to decide the case on the evidence, without regard to prior prejudicial information. Cf. Beck v. Washington, 369 U.S. 541, 556-57, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Stroble v. California, 343 U.S. 181, 194-95, 72 S.Ct. 599, 96 L.Ed. 872 (1952); United States v. Sawyers, 423 F.2d 1335, 1344 (4th Cir. 1970). Petitioner has the burden of proving that any one or more jurors were in fact prejudiced, Beck v. Washington, supra, 369 U.S. at 558, 82 S.Ct. 955, and this burden cannot be met by a conclusory allegation.

As to his sixth claim,...