Webster v. United States

• Decision Date: 24 August 1971
• Docket Number: No. 393-70-R,415-69-R.,393-70-R
• Citation: 330 F. Supp. 1080
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Garnett Gilliam WEBSTER, Petitioner, v. UNITED STATES of America, Respondent (two cases).

330 F. Supp. 1080

Garnett Gilliam WEBSTER, Petitioner, v. UNITED STATES of America, Respondent (two cases).

Nos. 393-70-R, 415-69-R.

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

August 24, 1971.

Joseph M. Spivey, III, Richmond, Va., for petitioner.

Justin Williams, Asst. U. S. Atty., Richmond, Va., for respondent.

MEMORANDUM

WALTER E. HOFFMAN, Chief Judge.

In Criminal Action No. 8006-R, Garnett Gilliam Webster was indicted for theft from the mails, unlawful possession of a United States Treasury check which had been stolen, and forging an endorsement on the same check. On June 13, 1968,¹ he was brought before District Judge Hoffman, an attorney was appointed under the Criminal Justice Act, and defendant was released under a $1,000 bond, with the alternative of a 10% deposit or a sufficient surety bond. A specific provision of the order specifying conditions of release, signed by Webster, stated that, "Defendant will not depart the Eastern District of Virginia without prior authorized permission."

On August 15, 1968, Webster's attorney, Stephen M. Kapral, obtained authority to employ a handwriting expert at the expense of the Government. At the same time District Judge Merhige ordered the defendant to pay $25.00 per week to the Clerk, as it appeared that Webster was then employed in a managerial capacity at a rate of $175.00 per week. Webster was formally arraigned, entered a plea of not guilty, and demanded trial by jury. His case was set for trial on September 12, 1968.

On August 22, 1968, Webster's counsel moved for a continuance alleging insufficient time to prepare for trial. This motion was heard on September 4, 1968, and Judge Merhige granted same, resetting the case for trial on October 21, 1968.

On the last stated date, Webster failed to appear for trial. His attorney was present and many witnesses had been summoned. Efforts were made to locate Webster, including a visit to his home, all to no avail. Judge Merhige then directed the issuance of a bench warrant and fixed a new bond in the sum of $15,000 with surety.

On November 29, 1968, an order was entered permitting Mr. Kapral to withdraw as counsel for Webster, the defendant having disappeared and no word having been received from him.

A grand jury on February 11, 1969, indicted Webster for failing to appear on October 21, 1968, in violation of 18 U.S.C., section 3150. This case became Criminal Action No. 31-69-R. On April 3, 1969, Webster was taken into custody at or near Burlington, North Carolina. He addressed a letter to Judge Merhige in which he stated that he had no excuse to offer for his failure to appear, that he intended to plead guilty to all charges, that he waived the appointment of counsel and specifically did not want Mr. Kapral as his attorney. Nevertheless, Judge Merhige requested Mr. Kapral to serve and, on April 24, 1969, the appointment was accepted.

Webster was brought before Judge Merhige on April 25, 1969. Mr. Kapral was present and there was no indication from Webster that he was dissatisfied with Kapral's service.

Webster was arraigned on the bail jumping charge and entered a plea of guilty. After fully complying with Rule 11, Federal Rules of Criminal Procedure, the guilty plea was accepted. On May 12, 1969, a presentence report having been prepared in advance of that date, Judge Merhige then examined the report and sentenced Webster to three years' imprisonment for bail jumping.

Webster was thereafter rearraigned on the charges in Criminal Action No. 8006-R. The charges in the three-count indictment were carefully explained by the Court. Webster entered a plea of guilty to the first count charging theft of the Treasury check from the letter from the mails. As to the other two counts, he entered not guilty pleas. Upon inquiry, Judge Merhige declined to accept the guilty plea and an agreed trial date of May 22, 1969, was fixed.

Webster, having executed a waiver of trial by jury on May 12, 1969, went to trial in Criminal Action No. 8006-R on May 26, 1969.² Judge Merhige found Webster not guilty as to the charge of abstracting and removing from the mails the letter which allegedly contained the check but, as to the forgery charge and the charge that Webster unlawfully possessed a check contained in a letter which had been stolen, Judge Merhige found Webster guilty as charged.

Following the finding of guilt as to counts two and three, Judge Merhige inquired of the Probation Officer whether a report was available. Answering in the affirmative, the Probation Officer handed to Judge Merhige the same presentence report which Judge Merhige had examined prior to sentencing Webster on the bail jumping charge on May 12, 1969 — some fourteen days prior thereto. Judge Merhige then sentenced Webster to five (5) years' imprisonment on count two, to run consecutively with the sentence of three (3) years imposed on the bail jumping charge on May 12, 1969. On count three the sentence was five (5) years running concurrently with the sentence imposed on count two. Webster was advised of his right of appeal and subsequently perfected same. The judgment was affirmed, United States of America v. Webster, 422 F.2d 290 (4 Cir., 1970). Certiorari was denied on June 22, 1970, 399 U.S. 915, 90 S.Ct. 2219, 26 L.Ed.2d 573.

On Sepetmber 26, 1969, Webster filed a pro se motion under 28 U.S.C., section 2255, attacking the bail jumping proceedings. Basically his contention was that his plea was involuntary in that he was afforded ineffective counsel. Judge Merhige dismissed the motion without an evidentiary hearing.³ Webster appealed and the order of dismissal was vacated by Memorandum Decision No. 14,113 on April 2, 1970. After calling upon the United States to answer, Judge Merhige, on August 19, 1970, appointed Joseph M. Spivey, III, to represent Webster. It should be stated at this point that Mr. Spivey's services to Webster have been exceptional and well beyond the call of duty.

For reasons that are apparent from a detailed review of the record, Judge Merhige assigned the case for hearing at a time when Judge Hoffman was scheduled to be in Richmond.

Webster has also filed a motion under 28 U.S.C., section 2255, attacking the validity of the sentence in Criminal Action No. 8006-R. When the hearing was convened on November 13, 1970, the Court was under the impression that it was hearing both motions to vacate. Mr. Spivey, however, said that he was appointed only in Civil Action No. 415-69-R. Following a conference all parties, including Webster, agreed that both cases would be heard as they were so obviously interrelated. Mr. Spivey was accordingly designated to represent Webster in Civil Action No. 393-70-R which is an attack upon the forgery and unlawful possession sentences.

After a full hearing the matters were briefed and orally argued in Norfolk.

The record discloses, and Webster's counsel candidly admits, that there was no "deal" or "bargain." Counsel merely urges that Webster was caused to believe that there was a "deal" by reason of his state of mind. We reject this contention as devoid of merit. At best, Mr. Kapral may have mentioned that he would like to work out a deal which would result in a dismissal of the charges in Criminal Action No. 8006-R in exchange for a guilty plea on the bail jumping charge, but Kapral emphatically denies that he ever told Webster, or led him to believe, that he had conferred with the United States Attorney with respect to any "bargain." It is also interesting to note that Judge Merhige, after the guilty plea had been entered in person, inquired of Webster as follows:

"THE COURT: Has anybody suggested to you if you plead guilty the Court would be more lenient in its punishment?

"THE DEFENDANT: No, sir."

Moreover, during the extensive interrogation under Rule 11, and even prior to Webster's being brought to Richmond as evidenced by his letter to Judge Merhige written from High Point, North Carolina, Webster has always admitted his guilt on the bail jumping charge, and his belated effort to urge that his state of mind caused him to plead guilty is unworthy of credence.

It was immediately after Webster was sentenced on May 12, 1969, that he also unsuccessfully endeavored to enter a guilty plea to count one of the indictment in Criminal Action No. 8006-R. After Webster entered his guilty plea to count one, and his not guilty plea to counts two and three, Judge Merhige inquired as to whether Webster demanded a trial by jury on the not guilty counts, to which Webster replied in the negative. Judge Merhige then said:

"THE COURT: Is that a deal or negotiation?

"MR. LOWE Assistant U. S. Attorney: Your Honor, the negotiations were entirely between counsel. Defendant was not advised of any discussion.

"MR. KAPRAL: Your Honor, could I make a brief statement, please? I have this unique situation. Mr. Webster has been incarcerated at the Hanover County Jail for the last month or two months, excuse me. And he says that he is in such a mental state at this time that he can't stand it much longer up there and he is worried about going to trial on this forgery charge that he will have to stay up there a month longer and he says he wants to go to the Lewisburg Penitentiary, or wherever he is going, and be done with it. I would like to see him plead not guilty, but this is up to him. I have told him.

"THE COURT: Well, we can solve that. Are you guilty?

"THE DEFENDANT: Yes, sir.

"THE COURT: Is that the reason you are pleading guilty, or are you pleading guilty because you want to get out of the Hanover jail?

"THE DEFENDANT: Both, sir.

"THE COURT: Do you have any defense to the charge in count one?

"THE DEFENDANT: No defense, sir, except —

"THE COURT: I beg your pardon?

"THE DEFENDANT: I was under drugs and drinking at the time.

"THE COURT: Well, that may be a defense, Mr. Webster. I don't know. I can not accept the plea. I will not accept the guilty plea.

"THE DEFENDANT: I don't believe

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