United States v. Derosier, 11684

• Decision Date: 03 February 1956
• Docket Number: 11685.,No. 11684,11684
• Citation: 229 F.2d 599
• Parties: UNITED STATES of America, Appellee, v. Roland E. DEROSIER, Appellant. UNITED STATES of America, Appellee. v. Alexander Yorkey KREFFKA, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

229 F.2d 599 (1956)

UNITED STATES of America, Appellee, v. Roland E. DEROSIER, Appellant.

UNITED STATES of America, Appellee. v. Alexander Yorkey KREFFKA, Appellant.

Nos. 11684, 11685.

United States Court of Appeals Third Circuit.

Submitted December 9, 1955.

Decided February 3, 1956.

Roland E. Derosier and Alexander Yorkey Kreffka, appellants, pro se.

John W. McIlvaine, U. S. Atty., John A. DeMay, Jr., Pittsburgh, Pa., for appellee.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellants were convicted on November 12, 1954, under 18 U.S.C. § 2312, of knowledgeably transporting a stolen motor vehicle from Springfield, Missouri to McDonald, Pennsylvania. On February 3, 1955, acting pro se they made numerous motions which were considered by the trial judge as coming under 28 U.S.C. § 2255. These were heard on February 23, 1955. At that time the appellants were not in court, the judge deeming their presence unnecessary. By a written opinion and order, filed March 11, 1955, the motions were denied. It is from that order these appeals were taken.

The district judge in his opinion correctly states that the chief complaint of appellants was concerning their court appointed counsel. The court went into this carefully and, warranted by the record, concluded that the attorney had ably represented appellants at their trial and thereafter until he was relieved by the court; that the attorney had testified under oath that he had never been requested by appellants to apply for a new trial; that "It appears to have been the sound judgment of the defendants' counsel that such a motion would have been useless and unavailing. From the allegations set forth in defendants' petitions before us, the court agrees with defendants' counsel."

Generally speaking, whether or not a defendant should be in court during such hearing is within the discretion of the court. His production should be ordered only "where the court is of the opinion that his presence will aid the court in arriving at the truth of the matter involved" and not merely because the defendant asks to be present. Crowe v. United States, 4 Cir., 1949, 175 F.2d 799, 801. See also Carvell v. United States, 4 Cir., 1949, 173 F.2d 348; United States v. Cameron, D.C.Miss.1949, 84 F.Supp. 289; United States v. Calp, D.C.Md.1949, 83 F.Supp. 152. Here, with the district judge apparently accepting prima facie the allegations of the moving papers, the presence of appellants might well have seemed unessential. The moving papers, however, were handwritten, voluminous and confusing. One of them, titled "Motion for New Trial" and dated December 28, 1954, contains the following: "(1) That the prosecution permitted admission of incompetent evidence. Said evidence in turn was prejudicial to the defendants. (2) That said evidence was never substantiated by the prosecution as to the actual existence of said evidence. (3) That said evidence was false evidence and statements made with the expressed intentions of influencing the courts and juries Judgment. * * * (10) The defendants, have new evidence further showing that the aforesaid verdicts were rendered contrary to facts as said in assignment, 9." These were vague general statements but they were followed by a paper called "Motion to Amend Motion For New Trial". That document requested that 1, 2 and 3 of the above quoted "Assignments" of said motion and others not now pertinent be stricken and a number of new "assignments" substituted including: "(4) That the new evidence that the defendants now hold are material evidence. (5) That the aforesaid evidence in turn will show enclusively that, the defendants were framed by the law authorities in this case. (6) That they can fully show proof of false testimony of a Government witness by legal Court documents. (7) That the aforesaid false testimony will show wilful and corrupt perjury by the aforesaid Government witness. (Section 1001 of the Criminal Code). (8) That the defendants verdict of guilty was the results of perjured testimony and suppressed evidence by the defense counsel. Achoa v. United States (C.C.A.Calif.1948). (9) That all the aforesaid assignments deprived the defendants of a fair trial."

The above motion was verified January 28, 1955, though the note which forwarded it to the clerk of the district court is dated January 24, 1955. It was filed February 3, 1955. There is no indication that it was disposed of separately or prior to the March 11th order. Indications are that it was one of those motions which the trial judge consolidated for hearing. In appellants' brief they say "The appellants honestly believes and can show proof that the prosecution was cognizant of the above said witnesses perjured testimony."

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