Smith v. United States, 16068.

• Citation: 240 F.2d 347
• Decision Date: 01 February 1957
• Docket Number: No. 16068.,16068.
• Parties: Johnny Ray SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

240 F.2d 347 (1957)

Johnny Ray SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 16068.

United States Court of Appeals Fifth Circuit.

February 1, 1957.

William B. Moore, Jr., Montgomery, Ala., for appellant.

Hartwell Davis, and Robert E. Varner, Asst. U. S. Attys., Montgomery, Ala., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.

PER CURIAM.

The motion for rehearing is denied.

We take notice, however, of counsels' professed inability to find any support in the record for the court's statement that the government's prosecuting agent and the district judge "conferred privately in chambers with regard to defendant's guilt and the punishment to be imposed therefor", and refer them to Agent Lill's testimony,¹ in which, after he had stated, "Quite frequently the Assistant United States Attorney or the United States Attorney requests that the background concerning the defendant be familiarized with the judge ahead of his sentencing":, the following colloquy appears on page 92:

"Q. Well, did you talk to the judge in order to give him the background? A. That\'s right.

"Q. In relation to possible sentencing? A. That\'s right.

"Q. That is why you were in there? A. That\'s right."

Further, while we are not convinced that the last sentence in the opinion, which counsel refer to as "the remanding order of the court", needs clarifying, in deference to their view that it does, the last paragraph of the opinion is amended to read:

"The judgment is reversed and the cause is remanded with directions to set aside the conviction and sentence and to proceed further and not inconsistently herewith, including, if the district judge is of the opinion that the ends of justice require it, permitting the defendant to withdraw his waiver of counsel and his plea of guilty and to stand trial."

RIVES, Circuit Judge (dissenting).

I think that the petition for rehearing should be granted, and therefore respectfully dissent. For reasons expressed on the original hearing of this appeal, it is still my opinion that the jurisdiction of the district court over the offense was never properly invoked. However, the majority has now made the present law of this case otherwise, and no longer can I assume want of jurisdiction on the part of the district court, and thereby excuse myself from considering the other questions ruled on by the majority. If the majority is correct in ruling that the offense charged could not be punished by death, and hence, was not required to be prosecuted by indictment under Rule 7 (a), Fed.Rules Crim.Proc., 18 U.S.C.A., then it seems to me that the judgment should be affirmed.

My brothers think that the district judge was "perhaps to some extent misled by the importance attached, in the opinion of this court on the former appeal, to the charge that Lill had made false statements." 238 F.2d 928. As the organ of the Court on the former appeal, it was my duty to know what was decided, and, with deference, I submit that the district judge was not misled for that was precisely what was then held, my opinion for the Court concluding:

"If, as the motion alleges, the defendant had not been convicted of, and had not committed, the crimes about which it is alleged that Agent Lill informed the district court, and if Agent Lill did in fact give false information as alleged to the district court, then the defendant\'s sentence would be lacking in due process, and subject to attack under Section 2255." Smith v. United States, 5 Cir., 223 F.2d 750, 754.

Further, that is the limit of the holding relied on in Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690;

"* * * this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand."

After a full and fair hearing, with appellant represented this time by able counsel, Judge Johnson found that the appellant was physically and mentally fit at the time he waived counsel, venue and indictment, pleaded guilty and was sentenced by Judge Kennamer, and, further, that at the time of the conference of Agent Lill with Judge Kennamer in chambers preceding the plea of guilty, Agent Lill did not intentionally or unintentionally make false statements of fact. I agree with those findings and my brothers do also, according to my understanding.

Nevertheless, my brothers hold that the conviction and sentence should be set aside. I cannot follow them that far. If the holding is that the trial lacked due process merely because it was speedy, and it was, such a holding does not seem to me to be supported by past precedents applicable to the circumstances of this case, and I think that it establishes a bad precedent for the future....