United States v. Bishop

• Decision Date: 09 January 1948
• Docket Number: 17038.,Cr. No. 17035
• Citation: 76 F. Supp. 866
• Parties: UNITED STATES v. BISHOP (two cases).
• Court: U.S. District Court — District of Oregon

76 F. Supp. 866

UNITED STATES v. BISHOP (two cases).

Cr. Nos. 17035, 17038.

District Court, D. Oregon.

January 9, 1948.

Henry L. Hess, U. S. Atty., and Edward B. Twining, Asst. U. S. Atty., both of Portland, Or., for the United States.

William M. Langley, of Portland, Or., for defendant.

JAMES ALGER FEE, District Judge.

Upon the 11th day of September, 1947, a United States Commissioner appointed by the Court issued warrants for Joe Berry Bishop, Henry Clay Tollett, Sam Scribner and Henry Clay Green, charging each with participation in robbery of a bank covered by federal deposit insurance.

It is reported that Henry Clay Tollett and Sam Scribner were each arrested in California, where they still are. Joe Berry Bishop was apprehended in Oklahoma and promptly removed to Oregon. It is claimed that Henry Clay Green was picked up by the officers outside of Oregon, and has thereafter been held in Oklahoma. No attempt has been made to remove him to Oregon.

On the 22nd day of September, 1947, based upon the motion and representations of the prosecuting officers of this District, this Court issued an order for the arrest of Frona Lee Green (alias Frona Lee Rhodes) as a material witness. It is said that this witness was found in Oklahoma, where she is detained in jail pursuant to the order. No attempt has been made to bring her into this District in consequence of the order.

Tollett and Scribner were indicted October 30, 1947, by the Grand Jury of this Court for robbery of a bank at Oakland, Oregon, and Tollett and Green for robbery of a bank at Sweet Home, Oregon. At the same time Bishop was indicted separately for receiving property stolen from the banks at Oakland and Sweet Home, respectively. The United States has evinced an intention to dispose of all of these defendants except Bishop in other jurisdictions and courts.

The strands of the charges concerning two robberies, the disposition of stolen property and the participation of four defendants and the witness seem plaited together in parti-colored unity, notwithstanding the attempt by the mechanical device of separate indictments to divide what is indivisible.

The locale of all of the crimes charged is the State and District of Oregon. Here the dictates of common sense and consideration of public policy demand that the participation of each is to be traced out and justice done to each proven guilty. Here are the investigating and prosecuting officers, who have collected the evidence. Here are the witnesses, who have knowledge of the transaction. Here is a Court responsible to the community where the acts occurred. We need not, in order to establish the appropriate venue, appeal to that feeling for disposal of criminal cases in the vicinage which predates the Norman Conquest.

But it is said that the government will dispose of these matters without trial of the major cases by permitting the state authorities to deal with Tollett and Scribner in California, by permitting Green to be sentenced in Okahoma, by permitting the witness held in Oklahoma to be released, and by bringing Bishop only before this Court for sentence on two indictments for comparatively minor participation.

On January 9, 1948, at his own request, Bishop was arraigned and pleaded guilty to the charges contained in the two indictments against him. His attorney requested sentence be postponed until after trial of the other defendants. This request is the more reasonable since all of the defendants and all of the charges are apparently intertwined. Bishop is in reality, although not technically, charged as accessory after the fact in each transaction. However, he is here where the crime was charged to have been committed, where investigating and prosecuting officers and witnesses know the facts and where the Court is responsible to the community where the acts occurred.

It would seem that a consistent discrimination against Bishop has resulted. He was immediately removed from Oklahoma to Oregon, while no effort was made to remove Green from Oklahoma and no effort was made to remove Tollett or Scribner from California. Besides the witness has not been brought from Oklahoma. It is said that, while Tollett and Scribner have been held in federal custody on warrant issued by authority of this Court, the government has permitted them to be tried in the state courts of California, and each has been convicted and received a heavy sentence. It is also said that Green is adverse to removal, and has requested that the papers in this case be transferred to Oklahoma under Rule 20, Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, so that he may be sentenced there. He is said to be anxious to plead guilty to the robbery at Sweet Home, but in Oklahoma, not in Oregon.

But Bishop is in this District and must be sentenced here. In fairness to him, the participation of all of these people in these transactions must be made plain. It is a cardinal principle of criminal justice that all participants of one crime or series of related criminal actions should be sentenced if possible by the same Judge. Sentencing is not an exact science and therefore the balancing of all in one transaction should at least be on the same scale. This certainly applies to Bishop and Green, who were both held in Oklahoma, and each of whom wishes to plead guilty. The accessory should not on grounds of public policy be sentenced by a different Judge than the principal.¹

But it is said that Green may change his mind and desire trial. Likewise Tollett and Scribner, if removed here, may stand trial. If so and the three are acquitted, then the fortunes of Bishop are still affected because, if they cannot be convicted of stealing the money, this factor should be considered in sentencing Bishop, who is charged with receiving stolen money. The commonwealth affected by the acts which were done should see the balancing of justice between the various participants, whoever they are.

If on the other hand the government is not serious about obtaining convictions of the three other defendants in this District, then the Court should set the plea of guilty of Bishop aside and advise whether the case against him should be dismissed or be sent to trial.² In a prosecution of Bishop, the United States would be required to prove the robbery of the particular bank and Bishop's knowledge thereof in order to convict him of receiving property stolen therefrom.

An alternative suggestion is that the United States cannot bring back the three defendants in other states because they will fight removal. As far as Tollett and Scribner are concerned, the indictment will furnish conclusive proof of probable cause. The only remaining defenses to removal are failure to prove identity, or that defendant had not been in Oregon. United States v. Chiarito, D. C., 69 F.Supp. 317. But, if the government cannot prove these facts, there is no sufficient proof against Bishop, and he likewise should be freed. As to Green, he has already agreed to plead guilty according to report, and therefore can hardly urge that he is not the same person who was in Oregon.

Here the right of Bishop to have all participants in a transaction face the same Judge is inextricably interwoven with the right of the people of Oregon, who were offended, to have justice done to all in their own court. Article III, Section 2, of the Constitution, protects this right of the individual state by setting up federal trial courts as an integral part of the judicial structure of each, and requires in the public interest that the trial of all crimes take place in the state in which they were committed.

When the provisions of the Bill of Rights were adopted and amendments thereto, there was conferred upon each defendant a personal right to be indicted, tried and sentenced in the state where the crime was alleged to have been committed. As an additional safeguard, there was created as a right of a defendant the necessity for a trial court in a federal judicial district, whose boundaries might be coextensive with but could not exceed those of the state within which it was erected. Here and here alone had this court power to indict, try and sentence a defendant. The judicial structure was so tied into the personal right of a defendant by these interlocking provisions that one could not be waived without destroying the other.

The sound public policy laid down as to multiple defendants indicted for one apparently continuous transaction can be carried out by directing the United States Attorney not to countenance or allow his name to be used in connection with an application for transfer under Rule 20. But the office of the Attorney General is reported to be adamant in insistence that the transfer be carried out.

Solemnly, perhaps even mournfully, we must contemplate the present attempted frustration of the purpose of the Constitution to place power of indictment and trial in federal courts local to the state of occurrence and of the purpose of the Sixth Amendment to prevent transportation of defendants to a...