United States v. Estep

• Decision Date: 13 May 1957
• Docket Number: Cr. No. 1922.
• Citation: 151 F. Supp. 668
• Parties: UNITED STATES of America v. William ESTEP.
• Court: U.S. District Court — Northern District of Texas

151 F. Supp. 668

UNITED STATES of America v. William ESTEP.

Cr. No. 1922.

United States District Court N. D. Texas, Abilene Division.

May 13, 1957.

A. J. Marshall, Dallas, Tex., for petitioner.

Heard L. Floore, U. S. Atty., Fort Worth, Tex., for the U. S.

DAVIDSON, Chief Judge.

This is a petition of the prisoner William Estep to reopen and set aside the judgment of conviction.

Title 28, Section 2255 by its wording and by decisions of interpretation leaves much to the trial judge's discretion. Where and when may he use this discretion and when does he abuse it? The whole field of our jurisprudence must answer.

The work of the American courts when connectedly and coherently done presents a beautiful picture in panoramic view of justice in action. A jury of 12 minds in its varied and composite experience runs the evidence through a sieve and finds the truth.

The trial court is the judge of the law both in letter and spirit. On the one hand he hears the complaint of the injured or the outcry of outraged society and then the plea for mercy from a, perhaps, repentant criminal. A prayer rises in the soul of the judge that he may rule wisely and well in the light of both justice and mercy; a judgment is pronounced and entered.

A strong intermediate court reviews this judgment and polishes off the inequalities, having always in mind that the trial judge saw and heard at first hand of the injuries, the motives and conduct of the parties, and here ends the right of appeal, so far as the individual defendant is to be primarily considered.

Our great Supreme Court, the highest tribunal of the land, may now in its discretion, because of importance of the legal questions involved, elect to review the case. The primary purpose is to keep the law straight. Like the surveyor in the forest the high judge sets up his tripod, levels his compass, gets his bearings, then he steps in front of his compass, looks back from whence he came. Thus poised he goes around his compass and through his telescope he finds where he is going and goes there. The trial court may act within the spirit of the law, but the high court hews to the line. His word is the letter of the law. So well does he spell it out that all the lawyers of the country may know what it is and without hesitancy so advise their clients.

This straight line which he has hewn may affect areas not unfavorably or it may strike where the passing of time has made it unworkable. Now the Congress re-orientates the judge with an amended law. The judge of the lower court must keep out of the jury box and the judge of the high court out of the legislative halls.

The petition of William Estep seeks to set aside the verdict and judgment of his conviction entered some three years ago in this court.

He was charged with defrauding people by the use of the United States mail in a scheme to sell stock in the Atomotor Manufacturing Company to manufacture atomotors. The atomotor was to be a fuelless machine. It was represented as an invention that would revolutionize industry and travel. In connection with the sale of his stock in such company he would also suggest the invention and production of a frictionless oil which would remove all tendency of a machine to slow down by reason of any friction.

The defendant in the trial, the petitioner here, was convicted on nine counts and judgment accordingly entered. He now urges that the verdict and judgment of the trial be set aside, the principal ground being that one of his counsel, the Honorable Maury Hughes, now deceased, was drunk and by reason of his intoxicated condition the defendant was denied counsel who could intelligently understand and present his defenses. The Court had assessed what may be considered a moderate sentence of five years which was duly affirmed by the Circuit Court at New Orleans, 223 F.2d 19.

The petitioner also sets forth in his complaint two allegedly forged letters. These letters have no connection with the trial upon which he was convicted.

Counsel Maury Hughes, being a lawyer, was as such an officer of the court. The presumption is that he was normal and capable. If he was drunk and not able to properly represent his client, surely the judge of the court or some of the officers of the court during a five-day trial would have observed such situation.

The judge that tried the case is now hearing this petition. He takes judicial knowledge of the fact that Counsel Hughes was duly sober, possessed of his ability and mental capacity to carry on the trial and the Court remembers him as one of the outstanding criminal lawyers of the state, and further, that his co-counsel, the Honorable Howard Dailey, was likewise a lawyer of unusual ability and whose name appears in the cases coming out of the Circuit Court in many volumes. Even though Hughes had never entered the case, Counsel Dailey was abundantly able to give him adequate representation that was needed for his defense.

We therefore find against his complaint of not being properly represented by counsel. 'Twould indeed be a dumb Court who could not see that leading counsel was intoxicated during a five-day trial.

There were two other matters, however, in connection with the hearing that gave us some concern: One, the summoning of a large list of witnesses. The taking of these people, some of them from a great distance, and bringing them into court unless it appeared that they would be needed and used was a matter we think that the Court should give due consideration. Acting again within his discretion with regard to the probable value and materiality of the testimony and particularly placing a limit upon the number, the attorney for petitioner failing to show the purpose of the testimony or its materiality, made it necessary to strike names from a numerous list tendered.

The second matter which gave us concern was the necessity of having defendant personally present at the time of the hearing. The statute, Title 28, Section 2255, expressly says that the defendant need not be personally present. However, the Supreme Court in the Hayman case Hayman v. U. S., 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232, and some later cases in the Circuit Court, indicates that the defendant should in certain cases be personally present.

We might notice the purpose and circumstances under which the present statute was enacted. Before the passage of this act and after the opinion in the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, a great many petitions for habeas corpus were filed by prisoners incarcerated in the U. S. prisons. These petitions for habeas corpus grew quite numerous. At one time we had on our table as many as ten of these petitions, but the greater burden of them fell on the judges in the districts in which prisons were located. Judge Underwood of Atlanta, a very conscientious official, is thought to have injured his health if not shortened his life in trying to give a hearing to the many petitions that came before him. Judge Parker, Chief Judge of the Fourth Circuit, and others who attend the Judicial Conference became especially interested in this situation and Congress was induced to pass the present law, believing no doubt that it would not only relieve the judges in districts in which the prisons were located, but when the petitioner knew he had to go back before the judge that tried him he might not be so interested in having his case reviewed insomuch that the judge would have judicial knowledge of much that happened at that trial.

A man in prison with a substantial sentence has less occasion to fear the penalties of perjury than one outside who still has his name, liberty and reputation. Therefore these petitions may be filed with affidavits reciting things that are not only improbable but unbelievable. A defendant once stated during his trial in my court that Judge McCrory, judge of a state court in San Antonio, descended from the judge's bench and came out on the floor and joined the sheriff and policeman in beating him unmercifully. I gave little credence to the matter, Judge McCrory being one of the leading men and jurists of the state. And I think we were well within our province in taking such course.

To more fully illustrate and discuss the problem now here we might review briefly the case of Leonard Williams.

On the 13th of August, 1952, the defendant, Leonard Williams, entered a plea of guilty to bank robbery and was assessed a penalty of 20 years. When he entered his plea of guilty the Court explained to him in detail what a plea meant and what the effect would be and that he was entitled to a trial before a jury and that no man had to plead guilty. The Court offered him a lawyer. Without protest he signed a written waiver waiving indictment by the grand jury and waiving a jury trial and submitted his case to the Court, the court reporter making notes of the proceeding.

Subsequently, after he had been inducted into prison, the defendant filed an affidavit with petition to reopen his case. He charged that two FBI officers, a policeman and a deputy marshal had beaten him until he was practically unconscious and had compelled him under threat of his life to enter the plea of guilty which he had made in court.

He was at that time in the United States Prison at Alcatraz and the Court having judicial knowledge of the circumstances surrounding the plea of guilty as entered and knowledge that the defendant was above average intelligence did not feel disposed to bring him from Alcatraz to be present at the trial. The Court of Appeals, Williams v. United States, 5 Cir., 227 F.2d 48, differed with us about this so the defendant was ordered present. He had a record of escaping from the officers on 13 different occasions, a fair sample of which was where a plumber went into his cell in prison to fix the sewerage. The plumber was left unconscious while the prisoner wore his clothing away to make an escape.

The...