Wallace v. United States, 13801.

• Decision Date: 20 June 1949
• Docket Number: No. 13801.,13801.
• Citation: 174 F.2d 112
• Parties: WALLACE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

174 F.2d 112 (1949)

WALLACE v. UNITED STATES.

No. 13801.

United States Court of Appeals Eighth Circuit.

April 19, 1949.

Writ of Certiorari Denied June 20, 1949.

Holton Davenport (appointed by the Court), of Sioux Falls, S. D., for appellant.

Leo P. Flynn, U. S. Atty., of Sioux Falls, S. D., Matthew A. Brown, Asst. U. S. Atty., of Chamberlain, S. D., and A. Bangs, Asst. U. S. Atty., of Rapid City, S. D., for appellee.

Before SANBORN, JOHNSEN, and COLLET, Circuit Judges.

Writ of Certiorari Denied June 20, 1949. See 69 S.Ct. 1505.

SANBORN, Circuit Judge.

The appellant, who is an indigent inmate of the United States Penitentiary at Leavenworth, Kansas, challenges the validity of an order of the District Court dismissing his motion for the vacation of the sentence imposed upon him by that court on April 22, 1943. The questions for decision are (1) whether this appeal was taken in time, and (2) whether the District Court erred in dismissing the appellant's motion, which asserted that the sentence was void for lack of due process in the proceedings upon which it was based.

At appellant's request, this Court appointed counsel to assist him on this appeal. We are greatly indebted to his counsel for an excellent brief, printed, for the Court's convenience, at counsel's own expense, in which every point which could possibly be of any benefit to the appellant has been presented and thoroughly argued.

The first question for decision relates to our jurisdiction. Appellant's motion to vacate the sentence was filed February 13, 1948, and was dismissed by an order of the District Court filed May 28, 1948. Notice of appeal from the order was dated June 8, 1948, but was not actually filed by the Clerk of the District Court until June 23, 1948. An affidavit filed by the appellant in this Court states that he had no knowledge of the entry of the order of dismissal until June 3, 1948, when the prison authorities delivered to him a letter from the United States Attorney, dated May 28, 1948, enclosing a copy of the order; that appellant then proceeded to prepare a notice of appeal; that on June 8 he delivered to the proper authorities of the prison a letter directed to the Clerk of the District Court, enclosing the notice of appeal; and that on June 4 he had arranged with the prison authorities to transmit to the Clerk the necessary filing fee. A letter of the Clerk to appellant, dated June 18, 1948, attached to the affidavit as an exhibit, indicates that, prior to that date, the Clerk had received the notice of appeal, but not the filing fee. In this letter the Clerk advised the appellant "that the notice of appeal must be filed within thirty days of the date of the order appealed from." At the time the order of dismissal was entered, Rule 37(a) (2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., required that an appeal in a criminal case be taken by a defendant "within 10 days after entry of the judgment or order appealed from." Rule 37(a) (1) of the Criminal Rules provided that an appeal "is taken by filing with the clerk of the district court a notice of appeal in duplicate." In Berkoff v. Humphrey, 8 Cir., 159 F.2d 5, 7, and in Byrd v. Pescor, 8 Cir., 163 F.2d 775, 779, this Court held that a motion to vacate an illegal sentence had become an ordinary remedy in criminal proceedings. See, also, Rule 35 of the Criminal Rules. The appellant had ten days to file his notice of appeal, United States v. Bloom, 2 Cir., 164 F.2d 556, 557; Ekberg v. United States, 1 Cir., 167 F.2d 380, 383; Carter v. United States, 10 Cir., 168 F.2d 310, 311. But, in view of his incarceration and his conceded efforts to take an immediate appeal as soon as he knew of the entry of the order of dismissal, we think this Court properly may assume jurisdiction and consider this case upon the merits. Compare, Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865, 873, 874, and Remine v. United States, 6 Cir., 161 F. 2d 1020, certiorari denied 331 U.S. 862, 67 S.Ct. 1759, 91 L.Ed. 1868; Oddo v. United States, 2 Cir., 171 F.2d 854.

The record on appeal shows that on March 18, 1943, the appellant and Roy L. Story were, by an indictment, charged with the armed robbery on July 24, 1936, of the Farmers' State Bank, of Turton, South Dakota, a federally insured bank, and with having thereafter become fugitives from justice. A similar indictment had been returned against them on November 12, 1942, but it contained no allegation that the defendants, after the robbery, had become fugitives. The appellant, on a warrant of removal, had been brought from Michigan to South Dakota in December, 1942. He was in custody in South Dakota from December 8, 1942, to the time of his trial.

On April 20, 1943, according to the court records, the defendants appeared, with their counsel, John W. Kaye, Vernon P. Williams and Lester T. Van Slyke, and entered pleas of not guilty. A purported confession of Roy Story, dated January 6, 1943, which implicated the defendant Wallace, was filed with the Clerk of the District Court on the day of arraignment. There was also filed at that time an affidavit of J. W. Kaye, stating, in substance, that he is an attorney; that on various occasions prior to April 13, 1943, he had conferred with the defendants; that they desired to have certain witnesses present at the trial of their case; that he had advised them that it would not be possible to have the witnesses appear at government expense, since they lived more than one hundred miles from the place of trial; that on April 14, 1943, he was shown a letter received by Wallace from the Clerk and a letter from Honorable A. Lee Wyman, the Judge of the District Court; that he thereupon made application for the production of the witnesses at government expense; that the application was made to an Assistant United States Attorney; that on April 15, 1943, he was advised by an Assistant United States Attorney that the Government would not subpoena the witnesses at its expense, for the reason that they resided more than one hundred miles from the place of trial; that on April 16 he transmitted this information to the defendants; that the defendants would not be able to procure the presence of these witnesses at the term of court then being held, because of lack of time and the inability of the defendants to defray the expenses of such witnesses; that the affiant believed that the defendants could not safely proceed to trial without the presence of such witnesses.

On the day of arraignment, the defendants filed an affidavit requesting a continuance, in which they stated that there were five witnesses necessary for the defense, three of whom resided in Arkansas, one in Californa, and one in Michigan. The names and addresses of the witnesses were given, together with the substance of the testimony they would give. It was stated in the affidavit that the evidence of these witnesses "would show the improbability if not the impossibility of the defendants having committed the crime charged"; that the defendants were without means with which to procure the presence of these witnesses; that if the case was continued over the term, they would be able to procure the witnesses; that, in reliance upon letters received from the Judge and the Clerk of the District Court, they had believed that the witnesses would be produced at government expense; that the defendants had their attorney J. W. Kaye, of Mitchell, South Dakota, prepare an application for the subpoenaing of the witnesses at the expense of the government; that the defendants were not advised until April 16, 1943, that the application could not be granted. They asserted that they could not safely proceed to trial in the absence of these witnesses. Attached to the affidavit was a letter from the Clerk of the District Court dated April 13, 1943, addressed to Wallace.¹ Also attached to the affidavit was a letter of the Judge to Wallace.² The motion for a continuance was heard and denied on the day of arraignment.

The court's record shows that the trial was commenced on the same day; that, at the trial, John W. Kaye, Vernon P. Williams, and Lester T. Van Slyke represented the defendants; that a number of witnesses testified for the government; that Story and Wallace, the defendants, testified on their own behalf, and that there were no other witnesses for them; that Vernon P. Williams opened the argument to the jury "on behalf of the defendants," and that John W. Kaye closed the argument "on behalf of the defendants." Neither the evidence adduced at the trial nor the instructions of the court to the jury are included in the record on appeal.

On April 22, 1943, the jury returned a verdict of guilty as to both defendants. According to the record of the District Court, Wallace, appearing "in proper person, and by counsel," and having been asked whether he had anything to say why judgment should not be pronounced against him, was sentenced to imprisonment for twenty years.

The record shows that on January 18, 1944, there was a hearing on a motion of Wallace and Story to set aside "the judgment of conviction," at which hearing the defendants were not represented by counsel, and that the United States Attorney was directed by the District Court to prepare an order denying the motion. The motion papers of the defendants are not included in the record; there is nothing to show upon what grounds the motion was based, whether it was considered on the merits, what issues were decided, or that a final order was ever formally entered denying the motion.

It appears from the opinion of the Circuit Court of Appeals of the Tenth Circuit in Wallace et al. v. Hunter, Warden, 149 F.2d 59, that the next proceeding instituted by the defendants was an application for habeas corpus in the United States District Court for the District of Kansas; that that court issued, but afterwards discharged, the writ applied for; and that the defendants appealed from the order discharging...