Yates v. United States
| Decision Date | 29 April 1963 |
| Docket Number | No. 7256.,7256. |
| Citation | 316 F.2d 718 |
| Parties | Emil Richard YATES, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard T. Sonberg, Denver, Colo., for appellant.
Thomas E. Joyce, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee.
Before MURRAH, Chief Judge, and BREITENSTEIN and HILL, Circuit Judges.
The appeal is from an order denying, without a hearing, appellant's motion under 28 U.S.C. § 2255 to set aside his conviction and sentence.
In 1957, while serving a sentence in the United States Penitentiary at Leavenworth, Kansas, Yates brought a habeas corpus proceeding in the United States District Court for the District of Kansas, which was denied. However, the court ordered that petitioner be released upon bond pending his appeal to this Court from the order denying the writ. One of the conditions of the bond was that appellant "shall voluntarily abide by the final order of the United States Court of Appeals, Tenth Circuit, and shall forthwith surrender himself to custody of the respondent warden in the event the judgment of this court is affirmed by such appellate court, and shall answer and abide by all rules and orders of the United States Court of Appeals and this court, pursuant to any and all mandates entered by virtue of said appeal." During the pendency of the appeal, appellant, thinking that the case would be decided in his favor, undertook to, and did, travel to Central America without leaving a forwarding address or letting anyone know where he was going.
Thereafter, the decision of the lower court was affirmed with instructions to order Yates to be remanded to the custody of the Warden to complete the service of his sentence, and to issue and execute the necessary writs to make the order effective.1 That mandate was duly spread of record in the lower court. Upon motion of the United States Attorney, a judge of that court entered a formal order on May 9, 1958, requiring Yates to appear in court on June 5, 1958, and surrender himself to complete the service of his sentence, or, in the alternative, his appearance bond would be forfeited. Yates did not appear and the bond was forfeited. A bench warrant was issued but it was returned "not executed." Thereafter, an alias warrant was issued and appellant was located in a hospital in Managua, Nicaragua, by the United States Department of State. He was brought back to this country by the State Department and taken into custody at Miami, Florida, by the Federal Bureau of Investigation. Yates was returned to the Kansas District and to the custody of the Warden to complete the sentence. Upon completion of the sentence, he was taken into custody upon a commissioner's warrant from the District of Kansas charging him with "jumping bail" in violation of 18 U.S.C. § 3146. He was subsequently indicted in the Kansas District for the same offense.
On December 28, 1959, with Yates and his court-appointed attorney before the court, the United States Attorney filed his affidavit charging Yates with criminal contempt of court, in that he failed to appear in court on June 5, 1958, as ordered. An order was immediately entered for Yates to appear before the court on that day at 3:15 o'clock P.M., to show cause why he should not be adjudged guilty of willful contempt of court and punished. On that date, the record shows that Yates had a habeas corpus proceeding pending, and there was also pending in that court the indictment against Yates for jumping bail. The record further discloses an apparent attempt by Yates' attorney and the United States Attorney to dispose of all matters in the court with which Yates was concerned. Counsel for Yates proposed in open court that Yates' petition for a writ of habeas corpus be dismissed, that the Government dismiss the pending indictment and, with these matters disposed of, Yates desired to enter a plea to the charge of criminal contempt as set forth in the affidavit and order to show cause. A full discussion was had in open court upon the proposal with Yates, his counsel, the United States Attorney and the trial judge all participating. The judge, with admirable care and caution, personally questioned Yates and explained to him his rights, including the right to a jury trial upon the contempt charge. The record is clear that everything being done to dispose of the three pending cases was not only fully understood by Yates, but also had his sanction and approval. The transcript of that hearing also shows a lengthy recital of facts by counsel for Yates, which was clearly intended to be a full admission and explanation of all of the facts pertinent to the criminal contempt proceeding. At the conclusion of this long statement, the court asked Yates, , and Yates replied, "Yes, he has." Counsel for Yates thereafter entered a plea of nolo contendere, which plea the court refused to accept, and directed that a plea of not guilty be entered. The court then made this further statement in that connection, "I think I have a right to enter a plea of not guilty on behalf of the defendant, to order that plea entered and to consider the matters presented here and which the defendant has agreed to as evidence in a case for trial by the Court." Counsel for Yates replied, Again, the court reiterated, "I think I will order a plea of not guilty be entered on behalf of the defendant by the Court and if there is no objection by the defendant, I will consider all things said here as evidence in the case." Yates' counsel replied, "We have no objection, Your Honor." After additional discussion in open court between the respective counsel, the court said, Yates' counsel replied, "I think nothing on behalf of the defendant, Your Honor, thank you." The court then made an oral finding from the bench determining Yates guilty of contempt of court, and the pronouncement of sentence was postponed until a later date, at which time Yates was placed on probation for a period of 4 years. During that period, Yates was returned to the lower court as a probation violator. His probation was revoked and the institutional sentence he is now serving was imposed. Yates appealed from that order and it was affirmed by this Court.2 In that case, we declined to review the validity of the conviction for criminal contempt and pointed out that "proper remedies in the trial court are available to appellant for that purpose. * * *" (308 F.2d at page 738).
We must first determine whether the lower court erred in denying appellant's motion without granting him a hearing. Yates contends that it did and argues that under the established law of this Circuit he was entitled to an oral hearing. It is true that a prisoner is entitled to a hearing unless the motion and the files and records of the case conclusively show that he is not entitled to relief.3 This Court has on numerous occasions ordered that a hearing be held in situations involving motions which raise a factual issue.4 As stated in Wheatley v. United States, 10 Cir., 198 F.2d 325, 327:
"The mandate of our court as well as of the Supreme Court is clear that where an issue of fact is presented under Section 2255 petitioner is entitled to a hearing and must be afforded an opportunity to testify and produce evidence in support of his allegations."
But appellant's motion does not present an issue of fact. The facts as shown by the record are undisputed. The taking of oral testimony upon the motion could not aid or assist the court in determining the legal sufficiency of the original trial proceedings. Any oral testimony offered could not add to, or detract from, what the court files, including the transcript of the December 28, 1959, hearing, disclose since that proceeding upon the record was either sufficient or insufficient. We therefore agree with the trial court's method of disposing of the motion and hold that under the circumstances of this case appellant was not entitled to an evidentiary hearing.
Turning now to the merits, appellant contends that his Constitutional and statutory rights were violated in the criminal contempt proceeding in the following respects: (1) The prosecution was had without proper notice, indictment, information or presentment; (2) the conviction was had following only a summary type hearing; and (3) due process was denied in that the presumption of innocence was not applied and the Government failed to prove his guilt beyond a reasonable doubt.
The contempt power of a federal court is defined in 18 U.S.C. § 401, which, in pertinent part, reads as follows:
The procedure on indirect or constructive contempt charges, such as we have here, is set forth in F.R.Crim.P. 42(b), 18 U.S.C.A., which provides as follows:
...
To continue reading
Request your trial
-
Morelli, In re
...§ 74, p. 191, and case cited in fn. 57; 17 Am.Jur.2d, Contempt, § 82, pp. 75--76, and § 86, pocket part, fn. 16.5 citing Yates v. United States, 10 Cir., 316 F.2d 718; see also generally, Lund v. Superior Court, 61 Cal.2d 698, 39 Cal.Rptr. 891, 394 P.2d 707; In re Foss, 123 Cal.App.2d 542, ......
-
In re Reed
...and precise to put them on notice of the conduct proscribed before they can be cited for contempt. See, e.g., Yates v. United States, 316 F.2d 718, 723 (10th Cir. 1963) (notice or knowledge); Denver-Greeley Valley Water Users Association v. McNeil, 131 F.2d 67, 69 (10th Cir. 1942) (notice o......
-
Buffington v. Baltimore County, Md.
...682 (1948) (party charged with contempt has constitutional right to be heard by way of defense or explanation); Yates v. United States, 316 F.2d 718, 725 (10th Cir.1963) (right to hearing may be waived). The June 9 hearing on the private prosecutor's application for a show cause order does ......
-
U.S. v. Powers
...contempt. Notice must be given of the time and place of the hearing. Simple notice is all that is required. Yates v. United States, 316 F.2d 718, 723 (10th Cir. 1963). Oral notice to the party in court is sufficient. In re Allis, 531 F.2d 1391 (9th Cir.), cert. denied, 429 U.S. 900, 97 S.Ct......