Tate v. United States

• Decision Date: 28 March 1966
• Docket Number: No. 19177,19556.,19177
• Citation: 359 F.2d 245,123 US App. DC 261
• Parties: Frank A. TATE, Appellant, v. UNITED STATES of America, Appellee. Robert M. EDELIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

123 US App. DC 261, 359 F.2d 245 (1966)

Frank A. TATE, Appellant, v. UNITED STATES of America, Appellee.

Robert M. EDELIN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 19177, 19556.

United States Court of Appeals District of Columbia Circuit.

Argued November 19, 1965.

Decided March 28, 1966.

Mr. Richard A. Baenen, Washington, D. C. (appointed by this court), for appellant in No. 19177.

Mr. John D. Hawke, Jr., Washington, D. C. (appointed by this court), for appellant in No. 19556.

Mr. Frank Q. Nebeker, Asst. U. S. Atty., for appellee. Mr. John C. Conliff, Jr., U. S. Atty., at the time the brief was filed, was on the brief for appellee in No. 19177. Mr. David G. Bress, U. S. Atty., was on the brief for appellee in No. 19556. Mr. Allen M. Palmer, Asst. U. S. Atty., also entered an appearance for appellee in No. 19177. Mr. John A. Terry, Asst. U. S. Atty., also entered an appearance for appellee in No. 19556.

Before WRIGHT, TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

In these two cases we granted appellants' petitions for leave to appeal from decisions by the District of Columbia Court of Appeals (D. C. Court of Appeals). That court withdrew leave to appeal in forma pauperis from judgments of the Court of General Sessions (General Sessions) in prosecutions brought by the United States, and withdrew appointments of counsel in connection therewith.

These cases present important questions with respect to the handling of in forma pauperis appeals in the D. C. Court of Appeals. We shall first outline the facts of each case, then discuss the general principles pertinent to the questions raised by the cases, and finally dispose of these appeals in the light of the principles adduced. We make clear at the outset that we confine our discussion to prosecutions brought by and in the name of the United States.

I

Edelin v. United States, No. 19556: While he was under arrest on a false pretenses charge, appellant's home was searched by the police pursuant to a search warrant authorizing seizure of a check writing machine and blank payroll checks, the proceeds of the crime with which appellant was charged. What the police found and seized, however, were a hypodermic needle and a silver spoon wrapped in a brown silk stocking. The false pretenses charges were dropped, and appellant was instead charged by information in the Court of General Sessions with possessing narcotics in violation of D.C.Code § 33-402(a). The trial judge denied his motion to suppress the evidence. After a trial without a jury, recorded by a court reporter, at which appellant was represented by retained counsel, he was found guilty and sentenced to 360 days, with 180 days suspended.

On April 21, 1965, the D. C. Court of Appeals granted appellant leave to appeal in forma pauperis, and appointed new counsel to represent him. This attorney submitted a "report" to the court on April 28, 1965. This set forth the chronology of the case in the trial court. Counsel related that on April 26 he had both telephoned appellant's trial counsel, who advised that without funds he would not represent appellant further, and discussed the case with the prosecutor (whom he described as courteous, fairminded and cooperative), and that on April 27 he had consulted with appellant in the rear of the U. S. Branch of General Sessions. He set forth:

The appellant stated to the undersigned that he had the following complaints:

(a) Ineffective Counsel, in that the Attorney did not make the proper motions.

(b) Unfair conviction, since he is a drug addict.

(c) Judge denied appellant\'s motions.

(d) No proof that appellant was in possession of narcotics.

Counsel's report sets forth a two-paragraph conclusion.¹ This report barely takes cognizance of the issues in this case, cites no cases, and lacks any real analysis of the issues (e. g. whether the objects seized were contraband or instrumentalities of crime, seizable without a warrant, or merely evidence of crime). The final conclusion was that "investigation FAILS to establish the denial of a fair and impartial trial to the appellant."

On the same day, April 28, the D. C. Court of Appeals granted appointed counsel leave to withdraw from the case and revoked its permission to appellant to proceed on appeal in forma pauperis. In a subsequent "Show Cause Order," filed pro se on May 3, appellant inquired why appointed counsel, who allegedly told appellant during their conversation that the points of law appellant raised were unfamiliar to him and would require research, devoted less than one day to his case (before submitting his report to the court), and why appointed counsel did not "seek to review the transcript of the trial for errors, instead of asking appellant for his layman's opinion of what points and etc. were raised at the trial." On June 15, the Clerk belatedly sent appellant a copy of counsel's report, reproached him for his "temerity" in inquiring why he was denied leave to proceed in forma pauperis, stated that the order was based on the attorney's report, and that "there will be no action on the irregular Show Cause proceeding."

Tate v. United States, No. 19177: On July 2, 1964, appellant, represented by court-appointed counsel, pleaded guilty in the Court of General Sessions to charges in three informations filed against him that day — for possession of narcotics, D.C.Code § 33-402(a), narcotics vagrancy, D.C.Code § 33-416a, and petit larceny, D.C.Code § 22-2202. The court imposed consecutive sentences for the three offenses, totalling 720 days.

On July 16, 1964, appellant filed a pro se motion to vacate his sentence on the ground that his guilty pleas were involuntary because he was suffering at the time from the effects of narcotics withdrawal. New counsel was appointed to represent appellant on this motion, and a hearing was held on July 28. The motion was denied by the court without opinion, findings of fact, or conclusions of law. No appeal was taken.

On September 18, 1964, appellant, again acting pro se, filed a motion for rehearing of the motion to set aside his pleas of guilty. He alleged that counsel appointed to represent him on that motion had not subpoenaed witnesses and documents which would have supported his allegation that the plea was involuntary. This motion was denied summarily.

On September 25, appellant filed his notice of appeal. The D. C. Court of Appeals granted leave to appeal in forma pauperis from the judgments of conviction² and appointed counsel to represent appellant.

Appointed counsel filed his report to the court on December 1, 1964, two months after he had been appointed. He stated that there was nothing for the court to review, at least for the time being, on the issue of voluntariness vel non of the guilty pleas, since that was an issue of fact which had been determined against appellant by the trial court after hearing and testimony. He recommended, however, that the court retain jurisdiction over the appeal while remanding the case to General Sessions for a hearing on the issue of ineffective assistance of counsel at the July 28 hearing on the motion to vacate for involuntariness of the guilty plea, and if necessary further hearing on the motion to vacate itself. The D. C. Court of Appeals declined to remand as suggested. It revoked appellant's leave to appeal in forma pauperis, and withdrew appointment of counsel "for the reason that it appears that the motions to vacate were denied after full hearing, that the motions for reconsideration presented no new matter, and that the record discloses no basis for an appeal."

The "record" before the D. C. Court of Appeals and this court contains no transcripts of any of the proceedings. Apparently none of the proceedings was recorded by a court reporter.³ Nor does that "record" contain any statement of proceedings and evidence with respect to either the July 2 proceedings on appellant's guilty pleas, or the July 28 hearing on the motion to vacate sentence.

II

We consider for the first time the standards applicable to the conduct and decision of in forma pauperis appeals in the D. C. Court of Appeals. There is concurrent criminal jurisdiction in the District of Columbia in cases other than felonies. The United States District Court for the District of Columbia has original jurisdiction of all "offenses committed within the District" with certain exceptions not here material. D.C.Code § 11-521(a) (Supp. V. 1966). The Court of General Sessions has original jurisdiction, concurrently with the District Court, of offenses punishable by fine only or by imprisonment for one year or less. D.C.Code § 11-963(a) (Supp. V. 1966). We are not here concerned with offenses against municipal ordinances, which are prosecuted in General Sessions by the District of Columbia.⁴ We are concerned with prosecutions by and in the name of the United States, and these are prosecutions for serious crimes, whether technically for violations of the United States Code or the District of Columbia Code. The United States Attorney, it was admitted on oral argument, has prosecutorial discretion in many cases whether to prosecute the defendant in the District Court or the Court of General Sessions.

With respect to appeals by indigent defendants who are prosecuted by the United States in the Court of General Sessions, two sets of problems fraught with constitutional overtones arise: first, to what extent must opportunities and facilities on appeal be equal to those provided nonindigent defendants; and second, to what extent must those opportunities and facilities approximate those of indigent defendants appealing from District Court convictions.

The Supreme Court has made clear that the guiding principle governing indigent appeals in the federal courts and in states which make available appellate review is equality of treatment with paid appeals. Coppedge v. United States, 369 U.S. 438, 446-447, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962...