United States ex rel. Clark v. Anderson

• Decision Date: 12 March 1973
• Docket Number: No. 182.,182.
• Citation: 356 F. Supp. 445
• Parties: UNITED STATES of America ex rel. Sidney J. CLARK, Petitioner. v. Raymond W. ANDERSON, Warden Delaware Correctional Center, Respondent.
• Court: U.S. District Court — District of Delaware

356 F. Supp. 445

UNITED STATES of America ex rel. Sidney J. CLARK, Petitioner. v. Raymond W. ANDERSON, Warden Delaware Correctional Center, Respondent.

No. 182.

United States District Court, D. Delaware.

March 12, 1973.

James M. Tunnell, Jr., and Paul P. Welsh, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for petitioner.

Francis A. Reardon, Deputy Atty. Gen., Wilmington, Del., for respondent.

OPINION

LATCHUM, District Judge.

Sidney J. Clark, the petitioner in this habeas corpus proceeding, seeks relief from two state court convictions and sentencings. In 1969 Del. Criminal Action No. 210, he was tried on December 16, 1970 in the Superior Court of the State of Delaware in and for New Castle County and convicted by a jury of embezzling the sum of $56,626.55 between April 7, 1967 and February 28, 1968 in violation of 11 Del.C. § 635. Clark was sentenced on this charge on January 29, 1971 to serve a five year term of imprisonment. In 1969 Del. Criminal Action No. 776, Clark was tried and convicted on May 18, 1971 of violating the same code section by embezzling $8,146.90 between May 17, 1968 and September 28, 1968. On October 8, 1971, he was sentenced to serve a term of five years imprisonment on that charge as well. Both convictions were affirmed by the Delaware Supreme Court on January 14, 1972.¹

The principal issues raised by Clark before this Court were presented and decided adversely to him in the state court proceedings. Consequently Clark's state remedies have been effectively exhausted and the present petition is properly before this Court. Brown v. Allen, 344 U. S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), rehearing den. 345 U.S. 946, 73 S.Ct. 827, 97 L.Ed. 1370 (1953).

Clark raises two main points: first, that the state trial court violated substantive due process conferred by the Fourteenth Amendment by applying Delaware's old embezzlement statute to his conduct after it determined that the amended embezzlement statute promulgated in 1955 was unconstitutional for vagueness; second, that he was denied procedural due process because the jury was biased by pre-trial publicity.

From the state court records, the following facts emerge: In Criminal Action No. 210, evidence was presented that Clark served as attorney for Allen Roy, Sr., next of friend of Allen Roy, Jr., his minor son, in a suit brought in the United States District Court for the District of Delaware against the Pennsylvania Railroad Company to recover damages for personal injuries suffered by the minor.² Following a trial in the District Court judgment was entered against the Railroad in favor of Roy, Sr., as next of friend for Roy, Jr., in the amount of $92,000. The Railroad delivered a check to Clark for $92,000 in payment of the judgment made out "to the order of Allen Roy, Sr., next friend of Allen Roy, Jr., and Sidney J. Clark and Harold Leshem, his attorneys."³ Thereafter the attorneys applied to the District Court for an award of attorneys' fees. A fee of $30,660 was allowed and the Court directed that $61,340, the remaining balance of the $92,000 judgment, be deposited in the Registry of the District Court to be withdrawn on order of the Court only by a guardian duly appointed by the Orphans Court of the State of Delaware.⁴ The Delaware Orphan's Court appointed Roy, Sr. as guardian of Roy, Jr., authorized Roy, Sr. to accept the sum of $61,340 as guardian from the Registry of the District Court, authorized the guardian from the amount so received to pay hospital bills and litigation expenses for Roy, Jr., authorized the payment of $1,000 to Roy, Sr. for lost time from work and ordered the remaining sum of $56,626.55 to be deposited in a guardianship account in the Delaware Trust Company, for the benefit of Roy, Jr.⁵ Upon appointment of Roy, Sr. as guardian by the Orphan's Court, the District Court issued a check for $61,340 payable to Roy, Sr., as guardian of Roy, Jr.⁶ Clark then induced Roy, Sr. to endorse the check with the promise to pay Roy, Sr. $1,000 for his expenses, to pay the other expenses and to deposit the remaining $56,626.55 in trust for the minor.⁷ However, Clark did not deposit the $56,626.55 in trust for Roy, Jr., but instead converted the funds to his own personal use.⁸

In Criminal Action No. 776, the evidence revealed that Clark performed similar legal services for Buford Manlove, guardian for his six year old minor daughter, Linda Manlove. In that instance Clark engineered a $20,500 settlement of a personal injury claim of the minor. The Orphan's Court in and for New Castle County approved the settlement and ordered the guardian to pay Clark's attorney fees of $5,125, to pay $6,228.10 in medical expenses, and to pay the remaining $8,146.90 into a trust account for the minor.⁹ When Clark received the $20,500 settlement check payable to the order of himself and the guardian, he induced the guardian to endorse the check, telling him it was Clark's duty to deposit all moneys and to take care of all bills.¹⁰ However, Clark never deposited the remainder in trust for the minor but converted the money to his own personal use.

The indictments in Criminal Action Nos. 210 and 776 were returned on March 4 and September 5, 1969, respectively. Clark moved to dismiss the indictment in Criminal Action No. 210 on the ground that the statute which he was charged with violating was unconstitutional for vagueness. The embezzlement statute, 11 Del.C. § 635 as amended by 50 Del.Laws, Ch. 299, § 1, eff. June 20, 1955 read as follows:

"Whoever embezzles money or other property which may be the subject of larceny, to the value of $100 or more; or whoever receives, conceals, or retains the same knowing it to have been embezzled, is guilty of a felony and shall be fined in such amount or imprisoned for such term, or both, as the Court, in its discretion, may determine."

In a letter opinion rendered on June 9, 1970, the late Judge Messick of the Superior Court held that the amended embezzlement statute was unconstitutionally vague because it failed to define embezzlement and because there was no common law definition of embezzlement which might be referred to in order to cure the statutory defect. However, Judge Messick refused to dismiss the indictment. He held that since the amended embezzlement statute ("new § 635") was invalid, the former embezzlement statute, which did define embezzlement, was never repealed, and the indictment properly charged a crime under the former embezzlement statute ("old § 635"). Old § 635 reads as follows:

"Whoever, being a bailee of money or other property which may be the subject of larceny, to the value of $100 or more, embezzles or fraudulently converts the same to his own use, shall be fined in such amount or imprisoned for such term, or both, as the court, in its discretion, may determine."

The Attorney General appealed Judge Messick's ruling that new § 635 was unconstitutional. However, the Delaware Supreme Court under its Rule 5(10)(b) dismissed the state's appeal as a premature interlocutory order. On September 22, 1970, the parties stipulated that Judge Messick's ruling that new § 635 was unconstitutionally vague made in Criminal Action No. 210 was equally applicable to Criminal Action No. 776. Thereafter Clark was found guilty of embezzlement under old § 635 after trial in both criminal actions and sentenced to five years imprisonment in each.

On appeal of his convictions to the Delaware Supreme Court, Clark challenged Judge Messick's opinion of June 9, 1970 on two grounds. First, Clark contended that old § 635 under which he was convicted was not a valid law at the time of his alleged crime because new § 635 appeared on the face of the statute books of the state so that the application of old § 635 to his prosecution amounted to ex post facto judicial legislating and also was done in the absence of adequate notice of the statute in effect at the time of his acts. Second, Clark argued that even if old § 635 were in effect and he had effective notice of its existence, he still could not be prosecuted under old § 635 because that statute applied to "embezzlement by bailees" while his actions as an attorney handling a client's funds were the actions of a fiduciary, and a specific statute dealing with "embezzlement by fiduciaries", 11 Del.C. § 642 ("old § 642") had been repealed by 50 Laws of Del., Chap. 299 § 3, eff. June 20, 1955. Old § 642 read as follows:

"(a) Whoever, being an executor, administrator, guardian, justice of the peace, constable or attorney-at-law, receives or collects any money for, or on account of, any person, estate or corporation, and willfully and fraudulently misapplies or converts to his own use the money so received or collected, is guilty of a felony, and shall be whipped with not more than 10 lashes, and imprisoned not less than 1 nor more than 5 years."

The Delaware Supreme Court rejected both contentions. Clark v. State, 287 A.2d 660 (Del.Supr.1972). With regard to Clark's first argument, the court held that the application of old § 635 was not ex post facto judicial legislating because under established Delaware law if an amendment of a valid statute is unconstitutional, it is invalid from its inception and is, in legal contemplation, as though it had never been passed so that old § 635 was never amended. The court also held that Clark had sufficient notice, because as a citizen of Delaware, he was presumed to know the statutes and existing laws of this state including judicial rules of statutory construction. Id. at 664. In rejecting Clark's second argument, the court held that even though old § 642 prescribed a harsher penalty for embezzlement by a fiduciary than was prescribed for a bailee under old § 635, a fiduciary is only a type of bailee and there is no reason why the state could not prosecute a fiduciary under the general section applicable to all bailees. Id. at 665. The court declined to decide whether new § 635 was unconstitutional for...