United States v. Kniess, 12370.
| Decision Date | 08 April 1959 |
| Docket Number | No. 12370.,12370. |
| Citation | 264 F.2d 353 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Eugene KNIESS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Zeamore A. Ader, Chicago, Ill., for appellant.
George E. Rapp, U. S. Atty., Dudley H. Davis, Jr., Asst. U. S. Atty., Madison, Wis., for appellee.
Before DUFFY, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.
This is an appeal from the denial of a motion made by defendant Kniess under § 2255, Title 28 U.S.C., to vacate and set aside a sentence imposed on him by the District Court for the Western District of Wisconsin. The motion was predicated on the alleged non-compliance with Rule 5(a), Federal Rules of Criminal Procedure, 18 U.S.C. This rule provides that an officer making an arrest under a warrant issued upon a complaint, or any person making an arrest without a warrant, shall take the arrested person, without unnecessary delay, before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the United States.
Defendant was arrested at New Richmond, Wisconsin, at 2:00 a. m. on June 18, 1956. He was taken to the county jail at Hudson, Wisconsin. Among other things found in his possession were approximately 900 blank postoffice money orders. About 8:00 a. m. on the same day, a postal inspector commenced questioning the defendant. In the late afternoon of that day, defendant gave the inspector a statement admitting, among other things, that he had forcibly broken into the postoffice at Wells, Texas, and had stolen therefrom postal cards, stamps, and money orders. On the second day after his arrest, June 20, 1956, defendant was taken before a United States Commissioner at Eau Claire, Wisconsin. Eau Claire is seventy-one miles distant from Hudson, Wisconsin.
On June 26, 1956, defendant appeared before the District Court for the Western District of Wisconsin for the purpose of executing a waiver of indictment. By that time an information had been obtained from the Eastern District of Texas, Tyler Division, charging the forcible entry of the postoffice at Wells, Texas, and the theft of postal cards and stamps.
After asking the defendant's age and residence, the Court said: "Now, when a defendant is brought into this Court, he has a right to be represented by a lawyer if he desires; and if he doesn't have money or property with which to employ a lawyer or pay for a lawyer's services, the Court will appoint one for him."
Mr. Kniess then signed in open court a waiver of prosecution by indictment and consented that the proceeding could be by information.
The United States Attorney then announced to the Court that the defendant desired to have the matter transferred to the Western District of Wisconsin under Rule 20, Federal Rules of Criminal Procedure. The following colloquy then occurred:
At this point, the United States Attorney informed the Court of the substance of the two counts of the Texas information. He informed the Court that about 1,000 blank money orders were stolen, and that the defendant improvised a rubber stamp and that he had cashed a substantial number of them, as slightly more than 900 were found in his possession when apprehended.
When the Court asked defendant if he had given the District Attorney all the information about these money orders, he corrected the Court and said that the statement was made to the postal inspector and not the District Attorney.
Upon receiving information that defendant had passed a large number of forged postoffice money orders in Colorado, an information dated August 6, 1956, was obtained from the United States District Court in that state. This information contained ten counts charging defendant with forging and counterfeiting eight postoffice money orders for $100 each and two for $50 each. On August 30, 1956, defendant was brought before the Court in the Western District of Wisconsin, and a copy of the information pertaining to the Colorado charges was given to him.
In defendant's presence, the United States Attorney informed the Court as to 35 money orders the defendant had counterfeited and cashed and explained that his investigation as to the other money orders which had been cashed by defendant had not been completed, but that he felt defendant should not be kept longer in the county jail.
The transcript of this hearing shows the following colloquy after the ten counts of the information had been read in defendant's presence:
The defendant then entered a plea of guilty to the charges in the Texas information as well as the one referring to the offenses in Colorado. In fact, after pleading guilty to the first count of the Colorado information, the Court said:
The Court then asked the defendant if he had anything to say to the Court before sentence was imposed, and the defendant voluntarily mentioned his past record, and in the ensuing discussion told the Court that record included robbery, having possession of unregistered firearms, grand larceny, and that while the record showed armed robbery, he insisted that such robbery was committed while he was unarmed. He further stated to the Court he had spent about seven years in prison.
The Court imposed a sentence of four years on each count in the Texas information and three years on each count in the Colorado information, but provided that the sentences should be concurrent so that the net effect of the sentence was one for four years.
Kniess first contends that the admitted violation of Rule 5(a) FRCrP by law enforcement officers invalidates his subsequent conviction and sentence. He relies upon McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. In each of these cases the Supreme Court held that confessions made by a defendant were inadmissible where obtained in violation of the provisions of Rule 5(a). In Mallory, the period of detention prior to the confession corresponded roughly to the period in the case at bar. For the purposes of this appeal, the Government concedes that if this case had gone to trial, the Kniess confession would have been inadmissible under the McNabb-Mallory rule.
In this case circumstances do not exist which call for the application of the McNabb rule. Kniess elected to plead guilty to all charges. Thus, it was unnecessary for the Government to use the...
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