Redfield v. United States

• Decision Date: 06 March 1963
• Docket Number: 18168.,No. 18167,18167
• Citation: 315 F.2d 76
• Parties: Lavere REDFIELD, Appellant, v. UNITED STATES of America, Appellee. Lavere REDFIELD, Appellant, v. Raymond W. MAY, Warden of the Federal Correctional Institution at Terminal Island, California, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

315 F.2d 76 (1963)

Lavere REDFIELD, Appellant, v. UNITED STATES of America, Appellee.

Lavere REDFIELD, Appellant, v. Raymond W. MAY, Warden of the Federal Correctional Institution at Terminal Island, California, Appellee.

Nos. 18167, 18168.

United States Court of Appeals Ninth Circuit.

March 6, 1963.

COPYRIGHT MATERIAL OMITTED

Burton Marks, Beverly Hills, Cal., for appellant.

John W. Bonner, U. S. Atty., Thomas R. C. Wilson, II, Asst. U. S. Atty., and Melvin D. Close, Jr., Asst. U. S. Atty., Reno, Nev., for appellee United States.

Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief of Civil Division; and Gordon P. Levy, Asst. U. S. Atty., Los Angeles, Cal. for appellee May.

Before HAMLEY, HAMLIN and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

These two appeals have been consolidated for argument and disposition in this court. One (No. 18167) involves the denial of alternative motions; one, made under 28 U.S.C. § 2255, to vacate, set aside or correct an alleged illegal sentence, and the other, made under Rule 35, Federal Rules of Criminal Procedure, to correct the same sentence. The other appeal (No. 18168) involves the denial of an application for a writ of habeas corpus.

Lavere Redfield, the appellant in both appeals, was convicted on a jury verdict in the United States District Court for the District of Nevada on six counts of an eight-count indictment charging attempted income tax evasion.¹ Three of the counts under which he was convicted (Nos. 1, 2 and 3), charged wilful attempts to evade and defeat income taxes owed by him for the years 1953, 1954 and 1955, computed by Redfield on a community property basis. The other three counts under which he was convicted (Nos. 5, 6 and 7), charged wilful attempts to evade and defeat income taxes in like amounts for the same years owed by his wife, Nell J. Redfield, also computed by Redfield on a community property basis.

Redfield was sentenced to five years imprisonment on each of the six counts, the terms to run concurrently. He was also fined ten thousand dollars on each count, the fines being cumulative and aggregating sixty thousand dollars. A motion for a new trial was denied. United States v. Redfield, D.C.Nev., 197 F.Supp. 559. Redfield appealed, and the judgment was affirmed. Redfield v. United States, 9 Cir., 295 F.2d 249. Certiorari and a rehearing thereon were denied by the Supreme Court. Redfield v. United States, 369 U.S. 803, 863, 82 S.Ct. 642, 7 L.Ed.2d 550, the latter order being entered on April 23, 1962.

Seven days later, on April 30, 1962, Redfield filed, in the United States District Court for the District of Nevada, this motion under section 2255, to vacate, set aside or correct the sentences. Three grounds for such relief were urged: (1) the privilege against self-incrimination had been violated by the trial court during the course of the trial; (2) the sentences on counts 5, 6 and 7, pertaining to income taxes owed by his wife, were illegal, because the reporting of a single community income by separate returns of husband and wife constitutes but one offense in any taxable year where the husband prepares the returns as manager of the community; and (3) counts 5, 6 and 7 actually state offenses under 26 U.S.C. § 7207, 1954 Internal Revenue Code, and the lesser penalties there provided for should have been imposed.

At the same time, and in the alternative, Redfield moved in the same court, under Rule 35, to correct the alleged illegal sentences imposed under counts 5, 6 and 7 on the grounds set out under (2) and (3) above.

The two motions were submitted on briefs and, on June 25, 1962 an order was entered denying both motions. On July 5, 1962, Redfield filed a notice of appeal from this order.

On July 2, 1962, before the time for taking an appeal from the order of June 25, 1962 had expired, Redfield, then incarcerated at Terminal Island, Los Angeles County, California, filed an application for a writ of habeas corpus in the United States District Court for the Southern District of California. In this petition the only ground relied upon was the first ground asserted in the section 2255 proceeding, namely, that his privilege against self-incrimination had been violated by the trial court during the course of the trial.

On the day that the habeas corpus proceeding was instituted, an order to show cause was entered therein, returnable on July 16, 1962. Following a hearing in the California habeas corpus proceeding on July 16, 1962, an order was entered therein on July 20, 1962, denying the application for a writ of habeas corpus. Redfield appealed from this order on July 26, 1962.

The first question presented in the Nevada appeal, No. 18167, and this only by way of the section 2255 motion therein is that, at Redfield's trial, his Fifth Amendment privilege against self-incrimination was violated.² According to appellant this privilege was violated several times during the trial and in three different respects, namely: (1) the trial court, in the presence of the jury, several times advised Redfield that he had a right to take the witness stand; (2) the trial court in the presence of the jury several times told, asked or suggested to Redfield that he take the witness stand; and (3) the trial court, in the presence of the jury, cross-examined Redfield while the latter, acting as attorney pro se, was cross-examining a Government witness.

The Government presents no argument on the merits against these self-incrimination contentions. It urges only that the same contentions were raised in Redfield's motion for a new trial following his conviction. Accordingly, it is argued, these contentions were dealt with and disposed of by the trial court in denying that motion and by this court in affirming on the appeal from the conviction. The Government argues from this that while the doctrine of res judicata is concededly not applicable, the prior determination of the same question is of such weight as to make the district court's rejection of these contentions in the present proceeding "tantamount to conclusive."

On the appeal from his conviction one of Redfield's grounds for reversal was the asserted error of the trial court in allegedly making improper and prejudicial remarks and rulings throughout the trial. Numerous citations were made to the trial court record for the purpose of demonstrating that the trial judge unnecessarily interrupted Redfield, who was acting as his own counsel, belittled and chastised him before the jury, threatened in the presence of the jury, to cite appellant for contempt, improperly curtailed cross-examination, vouched for the credibility of opposing witnesses, and stated in the presence of the jury that Redfield was entitled to take the witness stand. Eight of the twenty-one trial episodes which Redfield now relies upon in this section 2255 proceeding were cited on the prior appeal in support of the ground for reversal described above.

Despite the fact that Redfield and his counsel were fully aware of all of these trial episodes, and made reference to several of them in presenting other arguments, he did not on that appeal expressly invoke the Fifth Amendment privilege against self-incrimination. Either the point did not then occur to Redfield and his then counsel, or they did not consider it worthy of a specification of error. Thus appellant's own past attitude with regard to the matter is a pretty good indication that it is without substance.

Our own consideration of the record and the applicable law substantiates this appraisal.

The privilege against self-incrimination not only forbids employment of judicial process to require a defendant to testify (Adamson v. California, 332 U.S. 46, 50, note 6, 67 S.Ct. 1672, 91 L.Ed. 1903), but also forbids the court or the prosecution from placing the defendant in a position where he must testify in order to avoid an adverse inference on the part of the jury.

Accordingly, the right may be violated by an official statement in the presence of the jury that the defendant is entitled to testify (McKnight v. United States, 6 Cir., 115 F. 972), or by an official suggestion that the defendant take the stand or make an admission. See Johnson v. United States, 318 U.S. 189, 197, 63 S.Ct. 549, 87 L.Ed. 704; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. It may also be violated by the act of the trial judge in cross-examining a defendant. See Brown v. Commonwealth, 335 Mass. 476, 483, 140 N.E.2d 461, 465.

But the privilege against self-incrimination is one which may be waived (Hashagen v. United States, 9 Cir., 283 F.2d 345), and such a waiver occurs when a defendant elects voluntarily to testify. Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054. Examination of the trial record indicates that Redfield persistently testified, though not under oath, throughout his trial. He did this voluntarily while purporting to act in the role of counsel, and in flagrant and contemptuous disregard of repeated admonitions and orders from the bench not to testify without first being sworn.

It was in what proved to be a fruitless effort to prevent Redfield from giving unsworn testimony at a time when he was serving as his own counsel in making argument or examining witnesses, that the trial judge made the remark and suggestions which Redfield now asserts violated his privilege. It was long after Redfield in this manner had waived his privilege that the judge cross-examined Redfield while the latter was cross-examining a witness. That cross-examination, moreover, was actually in the nature of a colloquy between court and counsel in an effort on the part of the court to clarify the testimony of the sworn witness then on the stand.³

We hold that Redfield's privilege against self-incrimination was not violated.

As before stated, the second reason advanced by Redfield why the section 2255 motion should have been granted is that counts...