United States v. Webster

• Decision Date: 01 February 1974
• Docket Number: No. 73-1183.,73-1183.
• Citation: 492 F.2d 1048,161 US App. DC 1
• Parties: UNITED STATES of America v. Benorarias T. WEBSTER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

161 US App. DC 1, 492 F.2d 1048 (1974)

UNITED STATES of America v. Benorarias T. WEBSTER, Appellant.

No. 73-1183.

United States Court of Appeals, District of Columbia Circuit.

Argued January 14, 1974.

Decided February 1, 1974.

As Amended April 18, 1974.

Maureen P. English,^* Law Student, with whom John R. Kramer, Washington, D. C. (appointed by this court), and Ann Steinberg,^* Law Student, were on the brief, for appellant.

Michael G. Scheininger, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, and Vincent R. Alto, defense counsel at the time the brief was filed, were on the brief, for appellee. Earl J. Silbert, U. S. Atty., also entered an appearance for appellee.

Before WRIGHT and TAMM, Circuit Judges, and WYZANSKI,^** Senior District Judge.

WYZANSKI, Senior District Judge:

This is an appeal from the November 23, 1971 order of the District Court revoking appellant's probation.

It appears that on June 11, 1969 the grand jury indicted appellant on two counts, each charging an assault with a dangerous weapon on a different policeman, in violation of 22 D.C.C. § 505(b). After he was arraigned August 8, 1969, the Assistant United States Attorney on February 16, 1970 moved that appellant should undergo a mental examination at St. Elizabeth's Hospital. Appellant's counsel opposed the motion, and favored a mental examination by court-appointed experts. March 23, 1970 the court ordered appellant to be examined by a psychiatrist of the Legal Psychiatric Service. The doctor found Webster "competent."

Appellant was set to trial November 30, 1970; and on the same day was convicted by a jury. On April 19, 1971, more than four months later, the delay not being explained in the record, the trial judge imposed on defendant-appellant with respect to each of the two counts a concurrent sentence of one to five years, but adjudged that the execution of said sentence be suspended and placed defendant on probation for three years.

Then on May 31, 1971 the Metropolitan Police Department arrested him on a charge of unlawful entry with threats — a charge later reduced to assault with a dangerous weapon. Before that new case went to trial, the District Judge brought defendant before him on June 16, 1971 for "a hearing on a violation of probation." The judge then said that "we have a signed statement from the appellant Mr. Webster to the effect that he acknowledged that he had been informed by Mr. Hunter the probation officer that he violated the conditions of probation granted by the Court on the 31st day of May, in that he was arrested by the Metropolitan Police Department, charged with unlawful entry and threats, that was subsequently left to his being charged with assault with a dangerous weapon." Emphasis added.

Defendant's counsel at the June 16, 1971 hearing suggested that the revocation proceeding stand in abeyance until the criminal trial of Webster on the charge of a crime allegedly committed on May 31, 1971. But instead, the judge began proceedings. Webster (not being under oath) told the court the incident was only a family quarrel, he being unarmed and having pursued his wife to the home of people named Bannister. But then Bannister testified that Webster came to his house with a gun and said, "I don't want no trouble out of you, all I want is my wife," that Webster put the gun to Mrs. Webster's head, and that she started to leave with him, but suddenly she slammed the door and from the kitchen called the police.

Without making any finding, the judge then announced that he would send Webster to St. Elizabeth's for an examination.

Five months later on November 19, 1971 (not 1972, as the transcript erroneously states) the judge resumed the hearing. At the outset defense counsel pointed out "that the charges brought against Mr. Webster for which the motion for revocation of probation was made have since been dropped by the United States Attorney." He then added that the reason may have been that meanwhile the witness Bannister had been indicted for murder, and his credibility had been put in question.

It next appeared that while the trial judge was on vacation in July, the Chief Judge had ordered Webster to report to St. Elizabeth's for examination. However, the hospital was then unable to take him. Four months later, on October 26, 1971, the hospital informed the probation officer it would be ready to see Webster for examination the very next morning at 8:30. Late on the afternoon of October 26, 1971 the probation officer directed Webster to report on October 27, 1971 at 8:30 a. m. at the hospital. He did not report at that hour. Apparently 8 hours before the appointment, at 12:25 (it seems) a. m., Webster had been arrested and taken into custody for another assault with a dangerous weapon. Learning of this on the morning of October 27, 1971 the probation officer told the United States Attorney that Webster was supposed to have reported to St. Elizabeth's at 8:30 a. m., when obviously, being in custody, he could not have gone to the hospital. At once the judge who had this new case ordered Webster taken to St. Elizabeth's. That hospital on November 12, 1971 filed a letter stating that Webster was "competent to fully understand the quality and nature of the probation revocation proceedings."

The probation officer at the second November 15, 1971 hearing on the revocation of probation informed the trial judge conducting that hearing that Bannister, whom he chanced to meet on the street, had told him that because he made a mistake as to the courtroom, he did not show up at the hearing of the earlier charge for which Webster had been arrested on May 31, 1971 and therefore the case against Webster had been dismissed. But it is not clear whether Bannister or the probation officer knew that the reason the charge of the May 31, 1971 crime had been dismissed was the prosecutor's lack of confidence in Bannister's credibility.

In this confusion, the trial judge, without making any finding as to whether Webster had in fact committed the offense for which he had been arrested on May 31, 1971, declared he was "going to revoke Mr. Webster's probation. It seems to me that he's been living very close to the line. He's a threat to the community. The dismissal of the other May 31, 1971 case, apparently because of an absence of witnesses, proves nothing to us; in addition to the fact that he's got the subsequent involvement when he violated his probation by not even showing up on time for St. Elizabeth's." Accordingly, on November 23, 1971 the trial judge revoked the probation which had been imposed on April 19, 1971.

January 4, 1972 Webster moved for reconsideration of the order revoking his probation. January 11, 1972 the trial judge denied that motion. March 7, 1972 Webster appealed to this court from that denial. That is the appeal which is before us.

The government's first point is that Webster's appeal is not timely, and so it should be dismissed.

At first blush, the point seems well taken, for, as has been stated above, the District Court filed November 23, 1971 its order revoking Webster's probation, January 4, 1972 Webster moved to reconsider, January 11, the court denied the motion, and not until fifty-six days later, March 7, 1972, did Webster file a notice of appeal. This was not "within 10 days after the entry of the judgment or order appealed from," as required by Rule 4(b), Fed.Rules, App.P., nor within the 30-day extension period allowable upon a showing...