United States v. White

• Decision Date: 15 April 1964
• Docket Number: Civ. A. No. 3760.
• Citation: 237 F. Supp. 644
• Parties: UNITED STATES v. Robert Joyner WHITE.
• Court: U.S. District Court — Eastern District of Virginia

237 F. Supp. 644

UNITED STATES v. Robert Joyner WHITE.

Civ. A. No. 3760.

United States District Court E. D. Virginia, Richmond Division.

April 15, 1964.

C. Vernon Spratley, Jr., U. S. Atty., Plato Cacheris, Samuel W. Phillips, Asst. U. S. Attys., for the Government.

George F. Tidey, Richmond, Va., and Robert Joyner White, pro se, for petitioner.

BUTZNER, District Judge.

The petitioner, Robert Joyner White, moved pursuant to 28 U.S.C. § 2255 that the judgment of this Court convicting him of bank robbery and sentencing him to fifteen years confinement in the penitentiary be vacated. In his original petition he alleged that he was not present in the courtroom at the time the jury was empaneled but was being detained by the United States Marshal in a cell. The Court, in an order granting a plenary hearing, allowed the petitioner approximately sixty days to amend his motion to include all grounds which he had available at that time for relief. This order further provided that any ground which the petitioner had available but failed to present by amendment would be deemed waived. Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The petitioner filed an amended motion alleging as an additional ground that evidence obtained by an illegal search and seizure was introduced against him at his trial. Specifically he contends that the evidence was seized without a search warrant following an unlawful arrest in violation of his rights under the Fourth Amendment and the Self Incrimination Clause of the Fifth Amendment. He asserts that the articles were seized from his apartment after he had been arrested and removed from the apartment in custody. This, he contends, also rendered the search illegal because it was not incident to his arrest.

The Government asserts that the petitioner was present when the jury was empaneled and that the search and seizure were incident to a lawful arrest.

The Court appointed a competent attorney to represent the petitioner and directed that the petitioner be transported from the United States Penitentiary in Atlanta to the Federal Reformatory in Petersburg approximately forty days before the plenary hearing to provide him ample time for conferences with his court-appointed attorney. It was suggested to the Court by the petitioner and his attorney that the petitioner was not satisfied with the manner in which his attorney proposed to represent him on the search and seizure issue. The Court, at a hearing in which both petitioner and his attorney appeared, concluded that the petitioner's criticism of the attorney was unjustified. Nevertheless, the Court granted the petitioner his request to appear pro se and relieved the court-appointed attorney from further responsibility in the case. Members of petitioner's family thereafter retained an attorney of petitioner's choice, who assisted him throughout the hearing, particularly on the issue pertaining to the jury.

The petitioner's motion is without merit.

The petitioner was arrested on April 30, 1959 on a charge of robbing the Lakeside Branch of the First Federal Savings and Loan Association of Richmond, Virginia. He pleaded not guilty, was tried before a jury and was convicted. He is presently serving the sentence of which he complains.

He appealed to the Court of Appeals for the Fourth Circuit, which affirmed his conviction. White v. United States, 279 F.2d 740 (4th Cir. 1960), cert. denied 364 U.S. 850, 81 S.Ct. 96, 5 L.Ed.2d 74 (1960).

On July 25, 1961 he filed a motion pursuant to Rule 33, requesting a new trial on the ground of newly discovered evidence. After a plenary hearing this Court denied the motion. An appeal filed by the petitioner was abandoned.

At the plenary hearing on the present motion the petitioner moved for production of all statements of Government witnesses pertaining to the subject matter of their direct testimony pursuant to 18 U.S.C. § 3500.

The Court, expressing some doubt about the applicability of 18 U.S.C. § 3500 to this civil proceeding, but without deciding the question or determining whether the motion should have been made pursuant to Rule 34 of the Federal Rules of Civil Procedure, directed the United States Attorney to produce the requested documents. The United States Attorney immediately produced for inspection by the Court and the petitioner all of the documents that he had in his possession. (Petitioner's Exhibits 5, 6, 7, 8). Thereafter the petitioner moved for the production of all papers in the possession of the Federal Bureau of Investigation pertaining to the testimony of the witnesses. This motion also was granted and within a reasonable time after the hearing the United States Attorney furnished the Court with the papers. The Court has examined these documents and finds nothing in them that was contradictory to the testimony of the witnesses or supports the position of the petitioner on this motion. The papers furnished by the United States Attorney contain some information not germane to this proceeding. They have been sealed and are made a part of the record in order that they may be available for appellate review.

Findings of Fact

1. The petitioner was present in the courtroom throughout the time that the jury was called, sworn and examined on the voir dire, empaneled and sworn to try his case.

2. At the petitioner's trial the Government introduced into evidence articles which agents of the Federal Bureau of Investigation had obtained from petitioner's apartment on April 30, 1959. The agents did not have a search warrant. The search and seizure were incident to the petitioner's arrest.

3. The Lakeside Branch of the First Federal Savings and Loan Association was robbed on the morning of April 28, 1959.

4. On April 30, 1959, John N. Morgan, a special agent of the Federal Bureau of Investigation, swore out a complaint before the United States Commissioner, averring: "The statements herein alleged are based upon information furnished to the undersigned Federal Bureau of Investigation Agent in conversations and written statements furnished by Maurice Lapides of Richmond, Virginia, who stated the defendant admitted to him the facts set forth in this complaint". Upon this complaint the United States Commissioner issued a warrant of arrest. John N. Morgan did not testify in these proceedings.

5. Armed with this warrant special agents of the Federal Bureau of Investigation John A. Roach and Robert E. Barrett arrested the petitioner at his apartment in Richmond, Virginia at approximately 1:30 P.M. April 30, 1959. The agents were accompanied by Special Agent Claude A. Bass, who remained in the hall outside the apartment until the arresting officers and the petitioner prepared to leave. The apartment in which the petitioner was arrested was approximately fifteen feet square. It consisted of one room with bath. Incident to the arrest Mr. Barrett conducted a search of the apartment in which the arrest was made. He seized among other articles a .45 caliber automatic pistol, a foreign .32 caliber pistol, several pairs of shoes and several sport shirts. As Mr. Roach and Mr. Barrett left the apartment with the petitioner in custody, Mr. Bass acting on instructions from Mr. Roach, immediately entered the apartment, took possession of these articles and carried them to the office of the Federal Bureau of Investigation. Mr. Bass did not take the articles later in the afternoon as the petitioner contends. Mr. Bass' actions constituted a part of the search and seizure at the time of and incident to the arrest.

6. Mr. Roach, the arresting officer, was the Special Agent in Charge of the Richmond office of the Federal Bureau of Investigation in the Spring of 1959. He supervised the investigation of the robbery of the Lakeside Branch of the First Federal Savings and Loan Association.

7. Prior to the time Mr. Roach arrested the petitioner he had the following information:

a. On February 19, 1959 Maurice Lapides informed an agent of the Federal Bureau of Investigation that the petitioner had contacted him concerning participation in a bank robbery. He stated that the petitioner had taken him to three banks which he considered good prospects and described in detail certain aspects of a plan by which he proposed to rob one of these banks. The petitioner had taken Lapides to his apartment, where he exhibited three guns and two rubber masks which he planned to use during the crime. The petitioner told Lapides that he had reported to the Richmond Police Department the theft of a .45 caliber automatic from his car so if the gun were lost during the robbery the petitioner would have an excuse.

b. Lapides' information was corroborated in part by the Richmond Police Department, who advised that they had received a report from petitioner that a .45 caliber automatic had been stolen from his car on the night of January 29, 1959.

c. On March 2, 1959 Mr. Roach had observed the petitioner sitting in his car in front of a branch of the Bank of Virginia on Broad Street. The petitioner remained in the vicinity, looking into the bank for about ten minutes, then drove...