United States v. Hathcock, 29642.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: PER CURIAM
• Citation: United States v. Hathcock, 441 F.2d 197 (5th Cir. 1971)
• Decision Date: 06 May 1971
• Docket Number: No. 29642.,29642.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl HATHCOCK, Defendant-Appellant.

441 F.2d 197 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Carl HATHCOCK, Defendant-Appellant.

No. 29642.

United States Court of Appeals, Fifth Circuit.

March 19, 1971.

Rehearing Denied and Rehearing Denied May 6, 1971.

Robert G. McCain, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, Tex. (Court-appointed) for defendant-appellant.

Anthony J. P. Farris, U. S. Atty., Dewey F. Meadows, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Before JONES, BELL and SIMPSON, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied May 6, 1971.

SIMPSON, Circuit Judge:

This is an appeal by Carl Hathcock from a conviction in the district court on a conspiracy count (Title 18, U.S.C. § 371) and on two substantive counts (Title 18, U.S.C. § 2314) of unlawfully and knowingly transporting in interstate commerce goods, i. e. whiskey, valued in excess of $5,000.00.¹

In the initial brief filed by the appellant four grounds of error were asserted relating to the sufficiency of the evidence, the trial judge's charge to the jury, and the trial judge's comments on the evidence. A responsive brief was filed by the appellee, contesting all of the above asserted errors. Subsequent to the filing of the initial brief, appellant filed with this Court a motion to include additional documents in the record and brief in support thereof. The motion was granted by a judge of this Court on September 15, 1970.

This action resulted in the addition to the record of two affidavits, one by Mr. Ted Richard Sherman (Sherman), counsel for appellant in the trial court, and the other by James A. Haynes (Haynes), named in the indictment as a co-defendant, but at the time of Hathcock's trial convicted and serving his confinement sentence in the federal prison system (footnote 1, supra). In substance the affidavits set forth the following sworn facts: On February 3, 1970, one week prior to the scheduled trial date of Hathcock, February 10, attorney Sherman filed in the district court an application for writ of habeas corpus ad testificandum for the production of Haynes, then confined in the United States penitentiary at Leavenworth, Kansas, as a material witness for Hathcock.

The original application for the writ was not in forma pauperis. The district court granted the application for the writ, but provided in its order that trial counsel for Hathcock should consult with the U. S. Marshal and tender the necessary fees "for transportation and subsistence, etc." of the witness Haynes. Sherman was advised by the U. S. Marshal that the necessary fees for transportation and subsistence of Haynes would amount to approximately $800.00. Hathcock was financially unable to pay such a sum, and upon learning of this requirement, Sherman verbally renewed his application for a writ of habeas corpus ad testificandum to be issued to Haynes, but this time the application was made in forma pauperis.

At this point the trial judge called counsel for the prosecution and the defense into chambers, and placed a long distance telephone call to Haynes at the federal penitentiary at Leavenworth, Kansas. Sherman and the U. S. Attorney, Mr. Dimmitt, each spoke to and questioned Haynes, on extension telephones. Haynes explained on the telephone that he would testify in substance that appellant was unconnected with the offense with which he was being charged, and stated that he (Haynes) would be willing to testify at the trial of appellant.

The trial court informed Sherman that his motion for a writ of habeas corpus ad testificandum directed to Haynes would be granted if Sherman would assure the court that Haynes would be used as a witness on behalf of Hathcock. Because Sherman had been unable to interview the potential witness Haynes extensively and in private he was understandably unwilling to guarantee that Haynes would in fact be called to testify as a defense witness. The application was accordingly denied by the district judge. The form of writ of habeas corpus ad testificandum submitted by Sherman in connection with the original application was returned by the U. S. Marshal on March 13, 1970, "unexecuted as defendant's attorney did not furnish the necessary deposit to cover fees and expenses".

Hathcock urges that the refusal of the trial judge to grant without condition the in forma pauperis application for a writ ad testificandum directed to Haynes deprived appellant of a material witness whose testimony could have been critical to the outcome of the trial, and was an abuse of the discretion vested in the trial judge by F.R.Crim.P. 17(b) and constituted as well a denial of the appellant's Sixth Amendment right to compulsory process for obtaining witnesses and Fifth Amendment right not to be deprived of his liberty without due process.

The government filed no response disputing the facts sworn to in the affidavits, and on oral argument counsel for the appellee stated that the government did not dispute the factual contents of the affidavit. For this reason we deal with the matters set forth in the affidavits as undisputed facts.

Federal Rule of Criminal Procedure 17(b) provides:

(b) Defendant Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.

An application under Rule 17(b) for compulsory process for a witness at government expense is addressed to the sound discretion of the trial court. Barnes v. United States, 5 Cir. 1967, 374 F.2d 126, cert. denied 389 U.S. 917, 88 S.Ct. 246, 19 L.Ed.2d 273; Thompson v. United States, 5 Cir. 1967, 372 F.2d 826. In Welsh v. United States, 5 Cir. 1968, 404 F.2d 414, we outlined the scope of that discretion:

"We hold that the district court erred in refusing to order that a subpoena be issued for service on Dr. Ewing. Admittedly, Welsh was unable to pay the fees of the witness. The only other requirement of the present Rule 17(b), Fed.R.Crim.P., quoted supra, note 4, is `a satisfactory showing * * * that the presence of the witness is necessary to an adequate defense.\' The showing must be `satisfactory\' to the district court, which means that the district court exercises a broad discretion in granting or denying a motion for the issuance of a subpoena made by a defendant financially unable to pay the fees of the witness. The abuse of process so often encountered emphasizes the necessity for such discretion. Clearly, however, the discretion is not absolute, but is a sound judicial discretion subject to review on appeal.

"The breadth of the discretion to be exercised by the trial court

...