Smith v. United States, 17425.

• Decision Date: 15 June 1959
• Docket Number: No. 17425.,17425.
• Citation: 265 F.2d 14
• Parties: Willis SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

265 F.2d 14 (1959)

Willis SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 17425.

United States Court of Appeals Fifth Circuit.

April 3, 1959.

Certiorari Denied June 15, 1959.

Joseph A. St. Ana, Miami, Fla., for appellant.

David C. Clark, Jr., O. B. Cline, Jr., Asst. U. S. Attys., Miami, Fla., James L. Guilmartin, U. S. Atty., Lavinia L. Redd, Asst. U. S. Atty., Miami, Fla., for appellee.

Before RIVES and TUTTLE, Circuit Judges, and SIMPSON, District Judge.

Certiorari Denied June 15, 1959. See 79 S.Ct. 1297.

TUTTLE, Circuit Judge.

This is the second appearance of this case here. Smith was convicted under the Harrison Narcotics Law, 26 U.S.C.A. §§ 2550 et seq., 3220 et seq., and sentenced to five years imprisonment. After his sentence he engaged new counsel who filed a motion for new trial, the principal basis of which was considered by the Court in Smith v. United States of America, 5 Cir., 252 F.2d 120. This ground was that, in open court in the presence of prospective jurors, the trial court made comments claimed to be highly prejudicial to appellant just prior to commencement of the trial.

Answering a motion of appellant's then counsel O'Quin for a list of the government's witnesses, the court said:

"You know the Federal Rules. The list of government witnesses are not furnished in criminal cases for very cogent reasons, in my opinion. Some of them would probably disappear during the trial."

Mr. O'Quin:

"I don\'t see how the court —"

The Court:

"Here we have a narcotics case. Grave penalties are involved. There is a great temptation to interfere with witnesses."

Mr. O'Quin:

"The government has ways of punishing them."

The Court:

"That doesn\'t bring back a fellow that might disappear some night. There are plenty of people in this court that would be glad to interfere with witnesses. I know you wouldn\'t do it.

"It has long been settled in Federal cases that a list of witnesses is not furnished except in civil cases."

The trial court overruled the motion and we affirmed, saying as to this particular ground:

"The accused fails to show that the Court\'s criticized answer to his motion was made within the hearing of any person who was later chosen and sworn as a juror in the case."

On motion for rehearing in this Court, appellant sought to prove by affidavit the fact that the court's remarks had been heard by jurors who actually sat in the case. This motion was overruled. It was not competent for this Court, of course, to review a denial of motion for new trial by considering facts not presented to the trial court in the motion. The Supreme Court denied certiorari, 357 U.S. 908, 78 S.Ct. 1151, 2 L.Ed.2d 1157.

Appellant then filed this motion under 28 U.S.C.A. § 2255, asserting that there are facts dehors the record that go to the validity of the trial itself. This contention is that the trial court, by making the quoted remarks within the hearing of the jurors who had already been accepted and were sitting in the jury box¹ in a small courtroom indicated his belief that this defendant would be a party to a physical assault on prospective government witnesses; that this colloquy so disturbed appellant's counsel O'Quin as to cause him to leave the courtroom without consulting with the accused, leaving him in the hands of an associate, whom neither the accused nor his wife had ever before seen and with whom they had had no consultation; that the lawyer, under no authority from them, then proceeded to attempt the defense without protecting appellant's rights by moving for a continuance or other relief because of the court's remarks in the presence of the jury.

The trial court dismissed the petition without a hearing.

It is too well established to require elaboration or comment that a petition under Section 2255 cannot serve the office of an appeal on the merits. So, too, is it clear that issues disposed of on a previous appeal will not be reviewed again on petition. Malone v. United States, 6 Cir., 257 F.2d 177.

In order to make effective appellant's contention that he had been prejudiced it was necessary for him in his motion for new trial to supplement the record to show that persons who later served on the trial jury had at least heard the criticized remarks of the trial judge. This could have been done by the filing, in support of his motion for new trial, of the affidavits which are now filed in support of the Section 2255 petition. This is, thus, simply a second effort to obtain an appeal on the merits on a ground that was insufficiently raised on the motion for new trial. This remedial statute was not intended to and it cannot accomplish that result. No reason is assigned why the affidavits now submitted in support of this motion could not have been obtained and submitted in support of the motion for new trial. The motion, therefore, does not present such a state of facts as to warrant the use by the court of the extraordinary powers granted under Section 2255.

In the previous appeal we did not reach the further objection urged by the government for disregarding this ground of appeal: that counsel made no motion for continuance or for interrogating the venire as to whether they had heard the court's remarks, in order to prevent any possible adverse effect on the jury. This objection is again made here by the government. It is countered by appellant by his assertion that a subsequent colloquy with the trial judge left his counsel in such a state that, following a short recess, he failed to return to the courtroom and left appellant's defense in the hands of an unauthorized associate. (This lawyer's name was entered on the docket as an associate of O'Quin's firm.)

The fallacy of this argument is that it is in conflict with the petition and affidavits when coupled with that part of the record which stands approved by appellant. The brief for appellant asserts that:

"* * * Subsequently, a heated exchange took place between the district judge and attorney O\'Quin which does not appear in the record. During this exchange, the district judge threatened to hold attorney O\'Quin in contempt of court. Thereupon a recess was called and upon the reconvening of court, attorney O\'Quin was no longer present. These facts do not appear in the original record but if they did, they would appear at the bottom of page 11 of the original record just prior to the jury being sworn at the opening statement." (Emphasis added.)

Assuming the correctness of this statement by counsel as to what occurred and the time it occurred, then the record completely refutes the contention that no one was given a reasonable opportunity to protect appellant's interest following the court's statement. Immediately after the court made its statement, O'Quin said:

"All right, your Honor, we are ready for trial. We take exception to the Court\'s ruling."

He then made a motion that the rule be invoked as to witnesses. This was granted. He then made a motion to exclude the government's principal witness which the court denied. The court then said:

"If you insist that Mr. Rudd testify first so that you may save his hearing the other witnesses before he testifies, I will consider that motion."

Mr. O'Quin:

"I know Mr. Rudd. If he was the prosecutor I wouldn\'t mind him being in here but being the witness, I do."

The Court:

"Your motion will be denied. Somebody from the Government should be here."

It is at this point then that counsel says that there was omitted from the record the colloquy and the recess.

We think it is without dispute that there was ample time and ample opportunity for appellant's personally chosen counsel to take whatever protective steps were indicated before he left the courtroom. Appellant does not argue that anything that was done thereafter during the trial by the associate gives rise to any basis for attacking the validity of the trial. Ordinarily, of course, failure by trial counsel to make an appropriate motion for relief in such a situation leaves nothing to appeal from, for the appellate courts are for the purpose of reviewing errors of law caused by orders and rulings of the trial court. Normally the trial court is not put in error for acts or omissions that are not brought to its attention by motion or request for ruling. Rule 51, F.R.Cr.P., 18 U.S.C.A. Moore v. United States, 5 Cir., 161 F.2d 932. See Thompson v. United States, 3 Cir., 283 F. 895.

Especially since, even with the affidavits taken at their face value, there is still no assertion that any juror realized that the court's statement in any way related to the case they were later to try, since they had not yet been sworn, we conclude that this is not such a case as would warrant our dealing with it under the plain error provisions of Rule 52, F.R.Cr.P. This weakness in appellant's case is fatal even though the point could be considered following our previous affirmance of the denial of the motion for new trial, which we have already indicated it cannot be.

The trial court was not required to hold a hearing on the Section 2255 petition since it conclusively appeared from the "files and records" of the case that appellant was entitled to no relief.

The judgment is affirmed.

RIVES, Circuit Judge (dissenting).

This appellant is serving a five-year penitentiary sentence imposed as the result of a jury verdict. Five members of the jury have sworn that they heard the trial judge reply to the motion of appellant's counsel for a list of the Government's witnesses, that, if furnished, "some of them would probably disappear during the trial. * * * That (ways of punishing) doesn't bring back a fellow that might disappear some night. There are plenty of people in this court that would be glad to interfere with witnesses."

The record shows that the judge made those statements. There has been no hearing to ascertain whether all or others of the jurors also heard them, but from the size of the courtroom, approximately 20 feet by 47...