United States v. Helwig, 8736.

• Citation: 159 F.2d 616
• Decision Date: 28 January 1947
• Docket Number: No. 8736.,8736.
• Parties: UNITED STATES v. HELWIG.
• Court: U.S. Court of Appeals — Third Circuit

159 F.2d 616 (1947)

UNITED STATES v. HELWIG.

No. 8736.

Circuit Court of Appeals, Third Circuit.

Submitted October 21, 1946.

Decided January 28, 1947.

Roy Alton Helwig, of Atlanta, Ga., for appellant.

Charles F. Uhl, U. S. Atty., of Pittsburgh, Pa., for appellee.

Before BIGGS, ALBERT LEE STEPHENS and KALODNER, Circuit Judges.

BIGGS, Circuit Judge.

The appellant, Helwig, was found guilty of a violation of the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408, by a jury of the District Court of the United States for the Western District of Pennsylvania and thereafter was sentenced to imprisonment. Following his conviction he appealed to this court, being authorized to prosecute his appeal in forma pauperis. Helwig was tried at Erie, Pennsylvania, being brought there by a writ of habeas corpus ad prosequendum from the federal penitentiary at Atlanta, Georgia where he was serving a sentence having suffered conviction on another similar charge.

Helwig contends that he was denied due process of law at his trial because (1) he was not arraigned and did not validly waive arraignment, (2) that he was not given sufficient time to prepare for trial, the court denying motions for continuance, (3) that counsel assigned to defend him was inexperienced and took no substantial part in the trial, requiring him in effect to conduct his own defense, and (4) that he was denied the opportunity to summons witnesses to testify on his behalf.

If this be true, it is clear that the appellant has been denied rights guaranteed to him by the federal Constitution and that he is entitled to a new trial. We found nothing in the record as originally filed in this court to substantiate these charges. We affirmed the judgment of conviction and concluded that Helwig should make application for a writ of habeas corpus to the district court of the district in which he is imprisoned for the reason that his principal contentions were based on matters dehors the record. See United States v. Helwig, 3 Cir., 152 F.2d 456. Certiorari was granted and the Supreme Court vacated the judgment and remanded the cause to us with directions that we require the district court before which the appellant was tried to perfect the record.¹

Accordingly we issued our mandate to the district court with directions. The district court has now certified to us a somewhat enlarged record. But there is no stenographic transcript of the proceedings at the trial for apparently no reporter was present. No notes, made by the trial judge or by counsel, are included in the record. There is no written statement by any officer of the court or by any person present at the trial (save Helwig) which could contribute to a veracious account of the trial judge's action or would afford a basis for testing the contentions of the appellant. See Miller v. United States, 317 U.S. 192, 198, 63 S.Ct. 187, 87 L.Ed. 179. We are restricted therefore to the docket entries, to a document, newly filed in this court, entitled "Clerk's Memorandum", to the clerk's minutes, also newly filed, and to Helwig's statements.

After the filing of the enlarged record with this court, on September 4, 1946 we ordered Helwig to file any additional exceptions or additional brief which he might desire to file on or before September 30, 1946 and directed the appellee to file its brief on or before October 10, 1946. We ordered the cause to be submitted for decision on October 21, 1946.² Following this order we received no pertinent communication from Helwig and no communication of any kind from the appellee.

The record is still scanty. The Clerk's Memorandum, a record made by the clerk of the District Court at or about the time of the trial, names the jurors and the trial judge. It shows that there appeared for the appellant "Richard Agresti and the Defendant himself". The words and figures which appear on the Clerk's Memorandum would sustain a finding that Mr. Agresti was appointed by the court as counsel for Helwig at 10:35 A.M. on September 21, 1944 and that the trial commenced one minute later.³ It is clear that the appellant was brought from the federal penitentiary at Atlanta, Georgia, on a writ of habeas corpus ad prosequendum, was held in jail, first at Pittsburgh and later at Erie until the commencement of his trial. It appears from the Clerk's Memorandum that the trial commenced at 10:36 A. M. on September 21, 1944; that the prosecution concluded its case 59 minutes later; that immediately thereafter appellant's defense was opened; that no testimony was presented on his behalf; that Mr. Agresti argued Helwig's case to the jury for a few minutes;...