Shepherd v. United States, 13501.

• Decision Date: 30 October 1947
• Docket Number: No. 13501.,13501.
• Citation: 163 F.2d 974
• Parties: SHEPHERD v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

163 F.2d 974 (1947)

SHEPHERD v. UNITED STATES.

No. 13501.

Circuit Court of Appeals, Eighth Circuit.

October 30, 1947.

Gordon Allen Shepherd, pro se.

Joseph T. Votava, U. S. Atty., of Omaha, Neb., for appellee.

Before GARDNER, WOODROUGH and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from an order denying a motion to vacate a judgment of conviction or set aside the sentence in a criminal case. Appellant will be referred to as defendant.

On March 25, 1944, a grand jury sitting in the Omaha Division of the District of Nebraska, indicted defendant on two counts, charging violations of Section 76, Title 18 U.S.C.A., and Section 1393, Title 10 U.S.C. A. On April 10, 1945, he entered a plea of guilty to each of the two counts of the indictment and was sentenced to confinement in the Federal Prison for eighteen months on Count 1, and for six months on Count 2, the sentences to run concurrently and to commence at the expiration of the sentence which defendant was currently serving in the United States Prison at Leavenworth, Kansas. On July 9, 1946, defendant filed his motion to vacate the judgment and on November 9, 1946, filed a motion requesting that he be brought before the court at the hearing on his motion to vacate the judgment. This latter motion, on hearing and on proofs adduced, the court denied. The court also denied his motion to vacate the judgment and set aside the sentence. He was represented by counsel appointed by the court on both of these motions.

It was contended in the trial court, and the contentions are renewed here, (1) that he was denied a speedy trial within the Sixth Amendment to the Constitution, and (2) that the sentence of eighteen months could not legally be imposed to commence at the expiration of the sentence which he was then serving but could only be imposed so as to commence at the time he was committed to the Federal Prison thereunder, and that if it had been so imposed the term would now have expired and he could not longer be held thereunder.

The right to a speedy trial in federal courts has been secured by the Sixth Amendment to the Federal Constitution. The constitutional provision was intended to prevent the oppression of the citizen by delaying criminal prosecution for an indefinite time and to prevent delays in the administration of justice by requiring the judicial tribunals to proceed with reasonable dispatch in the trial of criminal prosecutions. A speedy trial, generally speaking, is one conducted according to prevailing rules, regulations and proceedings of law, free from arbitrary, vexatious and oppressive delays. The right does not require a trial immediately upon the return of an indictment, nor on arrest made under it, but it does require that the trial shall be had as soon as reasonably possible after the indictment is found, without depriving the prosecution of a reasonable time in which to prepare for trial. Delays which have been caused by the accused himself can not, of course, be complained of by him. The right of the accused to a discharge for failure of the prosecution to give him a speedy trial is a personal one to him and may be waived. He must assert the right if he wishes its protection and if he does not make a demand for trial or resist a continuance of the case, or if he goes to trial without objection that the time limit has passed, or fails to make some kind of effort to secure a speedy trial, he will not ordinarily be in position to demand dismissal because of delay in prosecution, and it has been held that an accused who becomes a fugitive from justice can not demand discharge for delay when the delay is the result of his own conduct. Phillips v. United States, 8 Cir., 201 F. 259; Pietch v. United States, 10 Cir., 110 F.2d 817, 129 A.L.R. 563; State v. Swain, 147 Or. 207, 31 P.2d 745, 32 P.2d 773, 93 A. L.R. 921.

Turning now to the basic facts in the instant case, defendant was arrested on September 22, 1943, on a charge of violating Section 76, Title 18 U.S.C.A. He was given a preliminary hearing before a United States Commissioner at Grand Island, Nebraska, and was held for trial under a $2,000 bond. In default of bond he was committed to the Douglas County jail at Omaha, Nebraska. On October 14, 1943, he wrote a letter to the United States Attorney for the District of Nebraska requesting trial. Up to that time no indictment had been returned against defendant and the United States Attorney promptly so advised the defendant, advising him that the return of an indictment was a prerequisite to trial. On November 6, 1943, defendant was released on bond. The next session of the grand jury was March 25, 1944, at which time the grand jury returned an indictment charging defendant with violation of Section 76, Title 18 U.S.C.A., and Section 1393, Title 10 U.S.C.A. At the first session of the court following the return of this indictment, July 31, 1944, this case was subject to trial, and on July 15, 1944, notice was sent by the United States Attorney to the surety on defendant's bond, directing him to produce defendant for trial on July 31, 1944. The bondsman, however, was unable to produce defendant.

Subsequent to his release on bond, defendant went to Texas, whence he embarked in service on the "Oklahoma." His service on that ship was from December 25, 1943, to January 20, 1944, and subsequently he served on the "Charles Wilson Peale." On February 9, 1944, he deserted this ship at Cardiff, Wales following which desertion he served on British ships for a period of several months, returning to England about the last of March, 1944. A few days after the Allied invasion of France, he was arrested in London by British immigration officials and was released to the United States Coast Guard on June 11, 1944. He was court-martialed for deserting an American ship on June 12, 1944, which resulted in his seaman's papers being suspended for the period of June 12, 1944 to June 12, 1945. He remained in the custody of the Coast Guard until he was released to the War Shipping Administration, which was on July 2, 1944. Arriving in New York July 11, 1944, he turned in his seaman's papers to the Coast Guard, worked for a towing company from Portland, Maine, to Boston, Massachusetts, as a deckhand on a tow boat from July 15, 1944 to August 31, 1944. He appeared on October 5, 1944 before a United States Commissioner at Lancaster, New Hampshire, charged with a violation of Section 76, Title 18 U.S.C.A....