Sherman v. United States

• Decision Date: 16 December 1966
• Docket Number: Civ. No. 2577.
• Citation: 261 F. Supp. 522
• Parties: Thomas J. SHERMAN, Jr., Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Hawaii

261 F. Supp. 522

Thomas J. SHERMAN, Jr., Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 2577.

United States District Court D. Hawaii.

December 16, 1966.

David L. Irons (court appointed), Honolulu, Hawaii, for petitioner.

Herman T. F. Lum, U. S. Atty., James F. Ventura, Deputy U. S. Atty., District of Hawaii, Honolulu, Hawaii, for respondent.

DECISION

PENCE, Chief Judge.

Statement of the Case

On July 7, 1966, Thomas Joseph Sherman, Jr., with his appointed attorney Raymond J. Tam present, entered a plea of guilty before United States District Judge C. Nils Tavares to an indictment charging that on October 13, 1965, he, Sherman, made a long distance telephone call from Honolulu to California by (falsely) representing himself to be the owner of a telephone credit card, and thereby violated 18 United States Code § 1343. Within an hour after his plea, he was sentenced for a term of five years (the maximum) and for a study under 18 United States Code § 4208(c). Before sentence, the court did not ask Sherman if he wished to say anything before sentence, nor did Sherman ask for or make any allocution under Rule 32(a) (1) of the Federal Rules of Criminal Procedure.

While awaiting transportation to the Federal Correctional Institution at Lompoc, California, on July 10, 1966, Sherman sent to this court a "letter motion" for a new trial. The "letter motion" was sent without the advice or knowledge of his attorney, Tam, and in it Sherman indicated that he desired to proceed in pro. per. without Tam. Judge Tavares being absent, at a hearing on July 14, without Tam present, Sherman's motion was construed by visiting Judge Lindberg as a motion for withdrawal of his plea of guilty. Upon Judge Lindberg's indicating that since Judge Tavares would be back the following week — July 21 or 22 — he would order the United States Marshal not to transfer Sherman outside the district until Judge Tavares returned, Sherman said:

"I think this would defeat the purpose of my petition, your Honor. Under those conditions, if it would have to be heard before Judge Tavares, I withdraw the petition." (Tr. p. 37.)

Sherman stated further:

"Let the record reflect that the defendant withdrew his petition at this time. * * *" (Tr. p. 38.)

On July 19, 1966, a "letter motion" for change of plea was received by the court. The letter was dated July 17, 1966, and was apparently mailed in the afternoon of July 18, 1966, and by the time the court received it on July 19th, the defendant was already on his way from Hawaii to Lompoc. On August 3, 1966, Judge Tavares wrote Sherman that he would defer acting upon the "letter motion" until after Sherman's return to Hawaii following the study.

While at Lompoc, Sherman filed in this court a motion (incorrectly naming Warden Minton, of the Federal Correctional Institution at Lompoc, as Respondent) dated September 27, 1966 and filed October 12, 1966, under 28 United States Code § 2255, urging:

(a) that the sentence imposed upon him was invalid because he had not been allowed allocution, with an added objection that no presentence report had been made before sentencing;

(b) that he "was drugged with dangerous narcotics at plea time", with narcotics given to him by the "United States Marshal and the warden of the Honolulu Hawaii County Jail" whereby he was rendered "almost senseless at the time of plea" and therefore compelled "to give a plea under extreme duress and not in full control of his powers of understanding";

(c) that he had "made application to stop imposition of sentence and to `correct a manifest injustice', two applications were denied by inaction and petitioner was removed to California out of the district."

In this motion, Sherman stated that the facts supporting it were that (a) he "was sentenced mute and did not waive right to make a statement in his own behalf"; (b) he "clearly stated for the record that he was in fact under medication at the time of plea"; and (c) he had "made application for change of plea on July 7, 1966, July 17, 1966 and July 19, 1966."

Sherman was returned to this district for sentence following study and (with Judge Tavares being ill) on October 12, 1966, appeared before this court (with Chief Judge Pence presiding) together with his court-appointed attorney Tam, at which time the court set October 25, 1966 for a full hearing on all of Sherman's motions.

During the October 12 session, Sherman's attorney, Tam, requested that he be allowed to withdraw as counsel. In one of his many letter communications to Judge Tavares, on August 20, 1966, Sherman had requested that Tam "be removed" as his attorney. On October 12 however, Sherman protested that he was satisfied with Tam. Tam, nevertheless, urged that in view of Sherman's motions and letters he was "not sure whether I Tam could justifiably represent" Sherman; that he, Tam, had "consulted with him Sherman at length on the plea * * * and it is * * * somewhat disturbing to myself that these events have come up since that time. And these are not based on my advice, but, frankly, on Mr. Sherman's own volition." (Tr. pp. 49-50.) This court, foreseeing from the nature of the allegations set forth in Sherman's motions that Sherman's testimony at the hearing might well reflect upon the integrity of Tam and the effectiveness of his representation, permitted Tam to withdraw and appointed new counsel.

The trial on Sherman's motions and § 2255, beginning October 25, 1966, consumed almost three days. From the records in the court's open files and the testimony at trial, and exhibits introduced, this court makes the following

Findings of Fact:

On October 26, 1965, Sherman was arrested in this district (see file in Criminal No. 12,105) and charged with fraud by wire under 18 U.S.C. § 1343.

Tam, as indicated, was promptly appointed by the U. S. Commissioner as Sherman's attorney. Tam has been a member of the bar of this court since 1958, has had broad and general experience, including some 15 to 20 criminal cases, five of which involved trial. Four of his criminal cases were in the Federal court.

Following preliminary legal skirmishes, Sherman was indicted in this district for the same crime here involved. Tam filed a motion for a bill of particulars, and in response thereto the United States Attorney disclosed to Tam the data and information concerning Sherman's acts which made the bill of particulars unnecessary. Sherman's bail had been originally fixed at $500, which Sherman could not procure, but Tam was successful in getting it reduced to $1.00. During the months of December 1965 and January 1966, Sherman, through Tam, endeavored to have his case transferred to Pennsylvania under Rule 20, for a plea of guilty there. This endeavor came to naught because Sherman had been arrested and held in this district.

Without advising his attorney — or the government — before March 1966 Sherman left Hawaii, without permission of his attorney or anyone in authority. The more particularized indictment of the present case was returned on April 14, 1966, a bench warrant was issued, and he then being under arrest in Miami, Florida, on other charges, Sherman was returned to Hawaii on June 4, 1966. On June 7, he was arraigned and Tam was again appointed as his counsel on this second indictment. (The first indictment was subsequently dismissed.)

Sherman claims that he became an epileptic in about 1962 and states that when he was returned from Florida to Hawaii he brought back with him about 50 capsules of sodium dilantin combined with ¼ grain of phenobarbital. He also brought back a psychiatric report made in December 1964 — so the court understands (the report never having been offered in evidence) — by a Doctor Haber, a court-appointed psychiatrist in Maryland, wherein Sherman was determined to be incompetent to stand trial at that time on another criminal charge, there. The copy which Sherman had with him in Hawaii was not signed or certified.

On June 14, 1966, the U. S. Attorney moved the court for a judicial determination of the mental competency of the defendant and on June 15 the court ordered a mental examination by Dr. Wm. J. T. Cody, a psychiatrist. Dr. Cody's report was dated June 30, 1966, and was received by Judge Tavares at 8:00 A.M. on July 5. Dr. Cody found Sherman to be "mentally competent and * * * able to understand the proceedings against him * * * as well as assist in his own defense * * * provided he is not permitted to act as his own counsel." Dr. Cody further stated that "Sherman deserves the benefit of extended and intensive psychiatric care or study in a mental hospital at some point in the near future." A copy of this report was made available to the U. S. Attorney and to attorney Tam several days before July 7, 1966, when, at 11:00 A.M., Sherman, together with his attorney Tam, appeared in court for plea.

Judge Tavares then, July 7, stated that, subject to objections based upon Dr. Cody's report, he was prepared to hold that the court was in a position to go to trial. Tam thereupon said: "We do not question the medical report at all. This plea today is being made at the request of the defendant. He wants to make his plea at this time." (Tr. pp. 21-22.) Upon the court inquiring of Sherman what was his plea, Sherman responded: "Guilty, your Honor." (Tr. p. 22.)

Judge Tavares, before accepting the plea, inquired of Sherman if he was "influenced in any way by any threats or other compulsion, attempts of coercion made on him by anyone in the service of the Government" to force him or to try to get him to plead guilty, by threats or pressure, and Sherman replied: "No, your Honor", that he was making the plea voluntarily. Judge Tavares then inquired: "You don't claim to be under the influence of * * * drugs * * * this morning?" Sherman replied: "No, your Honor, except the normal medication." (On June 22 there had been a court conference, with Sherman, Tam and Assistant U. S. Attorney Donahoe,...