United States v. Chiarito

• Decision Date: 19 March 1946
• Docket Number: Comm. No. 9374.
• Citation: 69 F. Supp. 317
• Parties: UNITED STATES v. CHIARITO.
• Court: U.S. District Court — District of Oregon

69 F. Supp. 317

UNITED STATES v. CHIARITO.

Comm. No. 9374.

District Court, D. Oregon.

March 19, 1946.

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

Dellmore Lessard and George C. Reinmiller, both of Portland, Or., for defendant.

JAMES ALGER FEE, District Judge.

A United States Commissioner has bound over defendant for appearance in the District of Colorado. An amended petition for warrant of removal was filed here charging defendant as a fugitive from justice and reciting that defendant had been indicted in the District of Colorado. Upon motion of counsel for defense, evidence was heard upon the question of whether a removal order should be signed. Copy of indictment found in Colorado was displayed. Therein it is set up that a local selective service board of New York duly classified accused in IV-E and assigned him to work of national importance at a camp in New York, and that he was then duly transferred to Civilian Public Service Camp No. 59, Elkton, Oregon, where he reported. It is then charged: "That thereafter and on, to-wit, the 23rd day of July, A.D. 1945, the said Americo Chiarito was duly ordered transferred to CPS Camp No. 111 at the Town of Mancos, in the State and District of Colorado, and that the said Americo Chiarito did unlawfully, willfully, knowingly and feloniously fail, refuse and neglect to report to said CPS Camp No. 111, at the Town of Mancos, in the County of Montezuma, in the State and District of Colorado, * * *." Identity of accused as the person named in the indictment is admitted. Accused testified and the government conceded that he has never been in the District of Colorado at any time. A copy of the order of transfer directed to the accused was displayed. It is agreed that this is the order referred to in the quotation from the indictment above. This order is admittedly signed as follows:

"Lewis F. Kosch Colonel, Field Artillery Assistant Director-Camp Operations"

It is also conceded that Kosch is a Colonel of the Regular Army.

The United States contends that even though there be doubt as to the jurisdiction, the question must be left for the consideration of the trial court. If the question had been heard before the Honorable John Foster Symes, District Judge of the District of Colorado, for whom the writer has the highest respect, the order would immediately issue. Likewise, if the jurisdictional questions had been noted and passed upon by a federal judge any place, the ruling even if not controlling would be entitled to the greatest consideration. The plain fact is that the jurisdictional features of this prosecution have never been passed upon by any federal judge and that the indictment is only the product of a grand jury of laymen advised as to the law by some prosecuting officer for the United States.

Even if we find conclusively then, as a preliminary matter, that the accused did the act or made the omission charged, neither the grand jury of the District of Colorado nor the United States Attorney of that District can create jurisdiction of the offense, nor make those facts constitute a crime except under the authority of some law of the United States.

One factor, of course, must give pause. Even if it were here held that the indictment stated a crime and the district court of the District of Colorado had jurisdiction of such offense, both such questions would be open to enquiry in that court after removal. In that court, the rights of accused would be given protection even if this court erroneously held there was jurisdiction primarily. Furthermore, this court should not arbitrarily or capriciously obstruct the enforcement of law. Therefore, it is said that even if it be apparent, there could have been no offense against the United States, or that there was no offense committed or triable in the District of Colorado, this court nevertheless, must issue the order of removal forthwith upon the display of a copy of the indictment. The present statute provides: "Where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had." 18 U.S.C.A. § 591.

This statute is mandatory in terms and squarely sets out the duty of a federal judge in the great majority of criminal cases where removal is sought. Furthermore, in view of the obvious public policy requiring judges to protect society and foster rather than hinder speedy punishment of criminals, it is said: "In view of the delays and obstructions that it is possible for persons accused to obtain and interpose by misuse of the right to be heard before removal (Cf. Salinger v. Loisel, 265 U.S. 224, 238 44 S.Ct. 519) section 1014 is to be construed quite favorably to the government's applications." United States ex rel. Kassin v. Milligan, 295 U.S. 396, 401, 55 S.Ct. 781, 783, 79 L.Ed. 1501.

However, the signing of the order of removal is an affirmative act.¹ Responsibility has been placed upon the judge for this act by a statute, in almost identical terms, for approximately 150 years. In this case the signing of the order will restrain defendant of his liberty for a period of several days until he can be transported for a distance of approximately 1500 miles. "In a country of such vast extent as ours, it is no light matter to arrest a supposed offender, and, * * * remove him hundreds, it may be thousands, of miles for trial." In re Buell, C.C.Mo., Fed.Cas.No.2,102, 3 Dill. 116, 120.²

It is the responsibility of a federal judge to make sure that there is jurisdiction of the subject matter and of the person at all times during the pendency of a proceeding. This is critically true in all criminal cases.

As a result, in this court over a long period of time, the court has followed a uniform system of procedure. When the indictments are returned by the grand jury they are examined by the presiding judge for the purpose of determining that there are no glaring defects therein and that jurisdiction is present. In appropriate cases, indictments are recommitted to the grand jury before filing, in order that errors may be cured. After filing, in case a jurisdictional defect were called to the attention of the court, the indictment would be dismissed. In innumerable cases, upon its own motion, this court has dismissed indictment for lack of prosecution, for failure to state a crime, for lack of jurisdiction, and for other causes. No cases can be found in the books for the reason that Congress has not seen fit to make this power of the court subject to review until recent times.

According to uniform procedure here, in all such cases as soon as the defendant has been brought into court, counsel is designated for him unless he affirmatively waives appointment. For many years, no enquiry has been made into the financial condition of the defendant as a prerequisite to the appointment of counsel. The United States Supreme Court has within recent years, held that the failure to provide counsel removed jurisdiction. However, such a ruling simply crystallizes the immemorial custom of this court. Although much of this protection of the rights of accused persons is not required by positive rule or statute, it is assumed the appellate courts will not hold that this court has been wrong in this interpretation of due process of law.

In removal cases, likewise, although it is said that a hearing before the judge is not guaranteed by the Constitution, nevertheless a hearing has been accorded in this court in every proceeding on removal for many years unless hearing has been affirmatively waived. In such proceedings, likewise, counsel are appointed where the accused has indicated such a desire, or where the occasion demanded. In a period of over 20 years, however, there have been only three cases where removal was refused by the court.

From the résumé of the proceedings of this court, it seems plain that the court cannot avoid a consideration of a question of jurisdiction even in a removal case. Since the responsibility is placed upon the judge of signing an order which will deprive a person of his liberty even for a short space of time, the judge cannot be absolved of his responsibility under his judicial oath. It is true that his construction of the statute relating to jurisdiction may be wrong and thereby one more possible wrongdoer is improperly released. But the judge has the same responsibility in the trial of a criminal case where he may direct a verdict of acquittal on the ground of failure of proof or lack of jurisdiction. There also, the United States would be remediless.

In cases where the initial court has ordered removal, and habeas corpus has been denied, the appellate courts have ordinarily affirmed. Of course, since there is no appeal from an order of removal, the appellate courts have not had the opportunity to pass upon the flagrant violations of the rules of fair play such as the indictment of a person upon specious or political grounds in a district where defendant had never been, across a continent, among strangers. Although the Supreme Court have vigorously expressed themselves as to the abuse of refusal of a removal order, they have never denied the power to refuse in the first instance. Where there is an insufficient statement of a crime in the indictment, that is no ground for refusal. Where the defendant has never been in a district but is charged with sending an instrumentality therein, ground for removal may exist.

A review of the cases upon removal in the Supreme Court of the United States might lead to erroneous conclusions unless these were carefully scrutinized. Generally speaking, these cases involved an order of the district court which grants removal and a denial of release by...