United States v. Von der Heide, Crim. No. 1219-51 to 1222-51.

• Decision Date: 26 January 1959
• Docket Number: Crim. No. 1219-51 to 1222-51.
• Citation: 169 F. Supp. 560
• Parties: UNITED STATES of America, Plaintiff, v. Kenneth C. VON DER HEIDE, Defendant.
• Court: U.S. District Court — District of Columbia

169 F. Supp. 560

UNITED STATES of America, Plaintiff, v. Kenneth C. VON DER HEIDE, Defendant.

Crim. Nos. 1219-51 to 1222-51.

United States District Court District of Columbia.

January 26, 1959.

COPYRIGHT MATERIAL OMITTED

B. Paul Noble, Washington, D. C., for defendant, for the motion.

Oliver Gasch, U. S. Atty., and Oscar Altshuler, Asst. U. S. Atty., Washington, D. C., for the Government, opposed.

HOLTZOFF, District Judge.

This is a motion to set aside a judgment of conviction and a sentence imposed by this Court on September 14, 1951, and later reduced on October 24, 1951. The sentence was pronounced on a plea of guilty previously entered at arraignment before Judge Matthews, on charges of housebreaking and grand larceny.

This is one of numerous motions under 28 U.S.C. § 2255 to vacate a sentence, with which this Court has been flooded during the past few years. While the vast majority of these applications are entirely lacking in merit and most of them are frivolous, nevertheless, each requires thorough examination and careful study, thus resulting in a considerable unnecessary burden on a busy Court. The present application differs from the others in one respect. Most of them are filed by prisoners in propria persona. They are generally handwritten and prepared either by the parties themselves or by their fellow inmates in the enforced leisure of confinement, and are mailed from the penal institutions in which the prisoners are incarcerated. Because of this circumstance, it is necessary to examine each petition of this type ex parte in order to determine whether it sets forth detailed facts that, if true, would constitute a ground for relief. The present application, however, is filed by counsel retained and compensated by the prisoner and, for this reason, the matter was set down for hearing without preliminary scrutiny. It should be noted that counsel who makes this motion is not the same counsel who had previously appeared for the defendant. Originally the defendant, purporting to be impecunious, was represented by counsel appointed by the Court, who acted in his behalf at the entry of the plea, at the imposition of sentence, and in connection with the subsequent application for reduction of the penalty.

While in form this motion seeks to vacate the sentence and judgment of conviction, it is, in fact, an attack on the arraignment proceeding at which the defendant pleaded guilty, it being the contention of defendant's counsel that in some way which he does not specify his client was deprived of his constitutional rights by the manner in which the plea was accepted. Subsequently to the entry of the plea this case was assigned to me as a matter of routine for the imposition of sentence. Thus, I find myself in the position of being required to determine the validity of proceedings that took place before Judge Matthews. Ordinarily, a judge who has to pass upon the actions of a judge of co-ordinate jurisdiction, especially another member of the same Court, finds himself in a somewhat difficult and delicate position. As will hereafter appear, however, no such problem arises in this instance, since the matter is simple and clear.

The defendant, Kenneth C. Von der Heide, was arrested by officers of the Metropolitan Police Department of Washington, D. C., on August 4, 1951, on several charges of housebreaking and larceny. On August 20, 1951, four indictments were returned against him, charging housebreaking into four different apartments on four different dates. Three of them also charged grand larceny, one in the sum of $938, another in the sum of $720, and still another in the sum of $1,005. It appears that the defendant was arrested in flagrante delicto while committing the fourth of the housebreakings of which he was accused.

On August 23, 1951, the defendant was arraigned. Judge Matthews of this Court was presiding at arraignments that day. When the case was called, the defendant was asked whether he had a lawyer and replied in the negative. He likewise responded in the negative to the question whether he had money to hire a lawyer, but answered in the affirmative to the still further inquiry whether he wanted the Court to appoint some one to defend him. It was suggested to him then that he might enter a plea of not guilty at that time and that the Court would thereupon appoint an attorney for him and set a date for trial. The defendant replied, "Well, I would like to enter a plea of guilty now". The judge then stated that the Court would not take a plea of guilty until counsel had an opportunity to talk to the defendant. The Court then immediately designated a member of the bar to confer with him. Obviously this action was equivalent to assigning counsel to the defendant, even if that exact terminology was not used. It is futile to cavil, as counsel seeks to do, whether this action was an effective appointment of counsel. Manifestly it was. The stenographic transcript of the proceedings indicates that at that point counsel and the defendant retired from the courtroom in order to confer.

Later in the day the case was called a second time. The defendant again appeared before the bar, this time with counsel. The latter stated in open court that he had conferred with the defendant in the cell block; that the defendant went over with counsel individually each count of each indictment; and that the defendant admitted his guilt. Counsel's statement also adverted to some other circumstances that are not material at this juncture. The defendant was thereupon formally arraigned and pleaded guilty to each indictment. The Court then requested counsel previously designated to continue to represent him.

In accordance with the customary procedure, after the entry of the pleas, the Court referred the case to the Probation Office for a presentence investigation. In due course the case came on for sentence before me on September 14, 1951. A detailed presentence investigation report had been previously submitted by the Probation Office.

The presentence investigation report shows the following facts. The defendant broke into four different apartments in the same apartment house, at 5415 Connecticut Avenue in this city, on July 7, 1951, July 8, 1951, July 26, 1951, and August 4, 1951, respectively. On each of the first three occasions he stole a considerable amount of property consisting of jewelry, silverware, and other small articles, as well as some money. He used the same modus operandi in each instance, namely, by forcing the lock with a piece of celluloid. On the fourth occasion the police laid a trap in an empty apartment which they thought might be invaded by the thief, and the defendant was caught in the apartment after he broke in and entered it. In his interview with the probation officer, he admitted everything frankly, even stating that on other occasions when he was in Washington, he committed other offenses without being caught. He explained that his practice was to go into various apartment buildings, look for an apartment with a newspaper or milk bottles in front, indicating that the tenants were away, and then take a chance on finding no one inside. He told his wife that he was buying and selling antiques and jewelry. The police informed the probation officer that the defendant had been very cooperative, and that through his efforts they were able to recover from $10,000 to $15,000 worth of stolen property, mostly from an antique dealer in Philadelphia, and were trying to find some more. One hundred and thirty charges of housebreaking, sixty-one charges of grand larceny, and forty-three charges of petit larceny were placed against him, but apparently it was deemed by the United States Attorney sufficient to prosecute him on the four cases here involved. The report further showed that the defendant had been arrested numerous times in other cities and that he had served a term in the Florida State penitentiary for robbery, and was later again convicted in Florida on a charge of breaking and entering.

When the matter came on for sentence on September 14, 1951, the defendant's assigned counsel made a statement in his behalf. The Court imposed a sentence of imprisonment for a term of five to fifteen years in each case, two of the sentences to run consecutively, and the other two concurrently with the former. Consequently, the aggregate sentence was for a term of ten to thirty years. Shortly thereafter defendant's assigned counsel made an application for a reduction of sentence based on the unusual frankness, assistance and cooperation extended by the defendant to the Police Department, thereby enabling the authorities to solve a long series of housebreakings and thefts, as well as to recover much of the stolen property. Government counsel, after conferring with the appropriate police officials, indicated that the Government would have no objection, since to reduce the sentence might have a salutary effect on law enforcement by possibly encouraging other criminals to extend similar cooperation to the authorities. Accordingly, on October 24, 1951, each of the four sentences was decreased to a term of three to ten years, thereby reducing the aggregate sentence to a term of six to twenty years. In due course the Bureau of Prisons transferred the defendant to the Federal penitentiary in Atlanta, for the service of his sentence.

The Court will take judicial notice of the records of the Department of Justice. It appears from the files of the Federal Parole Board that the defendant became eligible for parole on September 27, 1957, but that the Board denied his application for this relief on November 20, 1957. His maximum sentence expires on September 13, 1971, but with commutation for good behavior he will be automatically entitled to conditional release on February 16, 1965, unless sooner paroled, since it is always possible to renew the application for parole. In other words, the sentence remains...