Petition for a Writ of Certiorari — Audett v. United States

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“JUN |

In the Supreme Cott *

OF THE

United States

aay TOHER TERM, 1959

James HeNry AUDETT,

UNITE!

VS, -

» STATES OF

AMERIC Ss

Petitioner, |.

coca” eee

Re sponde ne.

eee sM.. JEN-KINS,—-

LESLIE me NE MacGowan,,

s é

- 593 Market Street, as

San Frantiseo 5, California,

Attorneys tor-Petitione,

PERN AU-WALBH

PETITION FOR A WRIT OF CERTIORARI

. to the United States Court of Appeals

PRINTING CO., SAN

FRANCISCO

ens -- for the Ninth Circuit.

Oe Soi Court gu S

“ Dy

: : \ 5 me

Subject Index .

Judgment sought to be reviewed ..... «pe Hits ave kawean ash ee

; Jurisdictional statement ..............2.. caehene knbawdee 2

“ Questions peeeete i225 oc... ieee ee ator eke? ae

_- Statates involyed ..........++.45 ‘iar ewN arenes Wesseneatee ©

- Statemerit of.the case ........ eeswakns PRED OCNrO sor: PCeaE

Afgument eseerer ; seeeeveer ‘ eoeeeee , eee eeeeeee eee eee ee ee ee) 4

Ns ‘

: ae .

, er United States Commissioner cannot appear before a

United States Court and act as counsel for a man accused ‘i

; of crime wa das donde POULT ITIT TET TTT or eee

_ The Supreme Court of the- United States should establish”

that an aecused cannot be convicted of a. crime eolely a

~ pon the uneorroborated testimony of a Purported/ ac: .

complice fines eaens Ded eeeegeeees ‘weeean oF A nek es a

The Court of cenit has mninageptiod = Coytt’s decision

DE in Prince v. United’ States Ey oF eee Svinde 10

ae /Suigmary of argument: .......... ‘sabe senghsdereesssasecees 13 .

¢ : s rf 7 ms ae

‘ * Table of Authorities Ae .

‘ | samen c - : : .

oo ros Cases Oey ; Pages °

Coleman v. State (Md, “s 121 Atl. 2d. 254 . aid kaa A os

. Prince y. United. snl, 352 US. 322 anne oe 8, 10, 11, 12, 13

United: States y/DiCani, 245 Fed. OAT Siicscucks Peer : a

at United ae v. Harris, 97 Fed. ‘toe. 164 ieee Phen Ag: awe 11,12 -

: ~ . a

i . Mh Pint gee

ii yoaia Index,

= a teat . Pages

. United States v. Nirenberg, 242 Fed. “2a WR saatas etn ee

U nited States v. Tarriconé, 242 Fed. = 555 ee ay ; bag aas wee | |

"Watson -¥. ‘State, 117 Au. USSR ASTON ER Oa al

ae Wells v. Swope; 121 Fed. Supp. 718 DpApiadans shia tusks |

‘Wilson’ v. United States, 145 Fed. 2d 734 ...... reer reTeeys | 5 me

w ‘tham v. State (Tenn,), 232 So,W. 243 ...... Dian oe

sae e . 19 : F

California Penal Code, Section | peer range ae mre Bee ee ae

New ¥ ork Code of Criminal Procedire, Section 399 : ee Se ram 8

‘18 US.C.: a3

Seis FS onc ss Pies dccknr nga daek ys eces 3, 10, 11, 12

Section 2113(a) ecieaban sdeeeeeegeeceseresaccsanes u

28 U.S.C. | -—— eae a) eaemne hx nae

Part III, Chaps. 41 ot seq. . Kees PEC PPL TET Pere EE

Section 347(a) ... inden ens emacs Perrcer er erer re Tere ~-

"NS is ois Chk és ac abbas Mak 5

~ Section lo is 1, a ere ee ben eee

g Section 604(a) (6) ......@.-... PR ASGANE A Fea Dw kne Kn i Oe

Section 604(a) | ee ETS Ue PE ee ees eS Pe

er er re huvewis iasebes toes sc ee

casats sone tions MTT OT BT emia a eee ous wena 2:

Section 683(8)(¢) ..... gveatvssves (Menagheanreena yes - 26

ree tie ~ Rules: Cae

P Sicten of the Supreme Court, Rule 19(1) (b) Pete el esas +e

; ‘Texts

Wi igmore, Ev idence, 3rd Edition, 1940, aaraas 2057 binalek 9.

“ : ae

th the thgevns' Court

’ OF-THE -

Mite mele

eo!

gee Octosex eae. 1959

No. °

’ = .

= a - *

JAMES HENRY AUDETT, «| ] .

a ag Petitioner,

VS. :

lU NITED Snares OF AMEnicA,

_Respondent..

__ PETITION FOR A WRIT OF F CERTIORARI

to the United States Court of Appeals

* for the Ninth Circuit.

| ” JUDGMENT SOUGHT TO BE REVIEWED.

Petitioner James Henry Audett respectfully. pati

tions for writ of certiorari ‘to review the’ judgments ;

against him in the United States District Court, in- °

and fer the District of | Idaho, Central Division and

in-the Ninth Circuit Court: of Appeals. The United

States District Court rendered. no opinion. ‘Lhe opin-

ion of the Ninth Cirenit Court of Appeals is reported |

4 in... ites = , Fed. 2d iid A copy is ere

2. Aas ’ is “ee

; JURISDICTIONAL STATEMENT. .— -

The judgment suuglit to be reviewed “was entered +

— on April 10,1956. Petitioner filed his’ Notice of vApe

peal to the Ninth Cire ‘uit Court of Appei's s.on April

18&,. 1956. ‘Time in which to appeal was exte nded by °

_ several orders.. The Appeal’was heard by the Ninth

~ Cireuit/ Court on March 2, 1959, and on Mareh 3h.

1959. . Thyt Court rendered its judgment modifving. 2%,

land affirming the judgment of the Distritt Court. Pes. -

‘titioner filed a petition for rehearing be fore the Ninth

Cirenit Court of — and | rhe ‘aring was denied oT

on May 4, 1959. | ante :

Jurisdiction to review. the judgment in question

is conferred upon this. Court by 28 U S.C., Seetion

347 (a). |

QUESTIONS PRESENTED. - |

? Ww hether United Statés C ommissioners, paid of % g

<# a ‘rs and employees of the Government, may “appear | 7

and’ defend in criminal proceedings,in United States

' District Courts, a question. of federal law Which has

_ not been, but ‘should he decided by this ‘Supreme

OR Phe ee eres.

2. Is.a defendant accorded his Const tutional right

to due process of the law when a U nited- States Com-

missioner for the ime United States: District Court

‘appears as defense counsel? oe

3. Whether ‘the Supreme Court chonta’ now estab=

-lish, in, accordance with the increasing trend in State’ ¢

law, the salutary rule that one accused. of crime can-

nat be convicted solely upon ‘the uncorroborated tes- ag

- timony, of purported accomplices. -

- 3 Ww hiethier the | ge neral rule of law; that/a lesser 3

crime is merged with the aggravated one, and the par-

“tieulay decision of this: Court in Prince v. United

States, 352°U.S. 322; havenot been misapplied, and

decided incor rectlys by the: Court of Appeals for the. b

Ninth Circuit, in this action. Per

. ” STATUTES INVOLVED.

28 U.S.C., Section 604’ (a) (1) 6) (9);

28 U.S. C., Section 605; -

“98° U.S. C., Section 607; .

/ 28 Ux S. C. Section. 633 (8) (c); a

; 8. U.8.C., Section ats. See .

The text of these statytice is set forth in the ap-

pendix+to thie petition. ‘ un .

‘ ° e

, ne STATEMENT « OF THE CASE. |

. On January 25, 1956, the. Grand Jury for the

U nited States District’ Court in and for the District

+ of Idaho, Central Division’ presented: an’ indictment

against. the petitioner charging-him in Count I with

-ente ring the, First National Bank of Cottonw ood, Cot-.

“tonwood, Idaho, a bank whose deposits: are insured by

: federal - “deposit - insurance, with intent to commit lar- -

Ceny ‘and in Count IT with taking and carrying away

from said bank money, property and things of Value,

.total value of which w as $30, 000. 00 with intent to ste val

and purlajn them. Petitioner pleaded Not. Guilty and

‘trial Was had before a a jury on | April 9th oo Wth

-.:* 1 "«

Sy brig’ . i

of 1956. The jury “found the petitioner euilty on bathe

counts. ~The Court sentenced the petitifhier for. a

pe ‘riod of 20'years on Count I and 10 years on Count

7 the sentences to run concurrently. The Court of

Appeals modified: the judgment of the District’ ourt

\ by striking there ‘fromthe senténe ¢ imposed, on Count

II and as so modified affirmed the. judgnrent.

Petitioner Was convicted solely upon the uncorrobo= +

rated ¢ vidgnce of two self-confessed accomplices, Dan-

ald Hai ana Walter McClure. Both alleged accom-

plices plead euilty te bank robbery and Hall received

a sentence of ane hour in the custody of the Marshal

while MeC lure received a seritence of six months to —

run concurrently with: a theft sentence. which he was

‘the Nl Se rving, , ;

During the trial of the case and in all Beene re

hefore-the’ Distriet Court petitioner Was. represented:

by attorneys Frank Meak and Dean E. Miller. <The

latter, who acted’as petitioner's primary trial counsel,

was United States Commissioner... Defendant. knew

that Mr. Miller was a United’ States Commissioner

and signed a purported waiver of appearance.

= _ ARGUMENT. ©

ie 3

A UNITED STATES COMMISSIONER CANNOT APPEAR BEFORE

A UNITHOD STATES COURT AND ACT AS COUNSEL FOR A

MAN ACCUSED OF CRIME.

Fora U.S. ‘Commissioner to Fepresent an aceused

before al v. a. Court creates an irreconcilable ‘coriflict.

of inte rest and ee the United States a

‘ *-

The action of the U. S Commies was sanc-

; tioned by both the anid States District Court, in

‘and for the District of Idaho, Central Division and by’

the United States Court of “Appeals in and for the

Ninth Circuit.

Such action on. the: “part of ies United Stabe: ~

Courts calls for the supervision. of the highest: Unite

States Court, the: Supreme Court of the United States.

Rules-of the Supreme Court, Rule 19 (1) (b).

AU nited States Commissioner who sometimes sits

as committing magistrate cannot at othe r times act as

advocate for the accused. The roles of prosecutor, ad-

voeate for’ the accused ‘and’ judge are irreconcilable,

One. man cannot jump fr om one to the other.

The United States Code prohibits: officers and em-

~ ployees. of the Administrative. Office of the United

States Courts fr ‘rom pr acti¢ing law i in the United States

. Courts.

States Courts. _ Ber se aie:

Title 28 USC. rg TI, ‘Chaps. 41 et seq.

28 U. S C. Section 607.

A. United States Commissioner is an officer or em- ._

ployee of the Administrative °o of the United

entitled “Court: Officers and Employ ees.”

It j is apparent from 28 U.S.C. Secti® 605 that the

Congress’ intended to include U nited States Commis-

sioners among officers and employees of the Adminis-

trative Office. The duties of the director are defined to

he, among. others:

pee Suipervise all administrative matters.

" 28 US. C. Section cr )

(2) Determine and pay necessary office ex-

-penses of edurts, judges, and those court officials

whose expenses are by law ‘allowable, and the law-

ful fees of United States Commissioners.” (28

UIS.C. Section G04 (if) (6). ) (Italics added. )

(3) Purchase, exe hange,. transfer, “distribute,

& and assign the custody: of law books, equipme ht:

and supplies needed for the maintenance and op-

- eration of the eourts and the Administrative Offic

and the offices of the United States Conimis-

“stoners.” (28 U.S.C. Section 604 (a) (9).) “Ctalies —

added.) es

;

The opinion of the Court of Appeals (pages 4-5)

relies upon 28 U.S.C. Section 633(8)(@) whieh pro-

vides for additional emoluments to United States Con

missioners ‘‘who are required to devote, full time. ti

the performance of ‘their duties of the offiee .. . and’

who do not engage in the practice of law’’ from whieh

the Court concludes that Congress inte nded'that Unite vl

States Cominissioners be allowed to practice law. But

~ the fact’ that the United States Code contemplates that

United States Commissioners may practice law does

not. mean that the’ Congress intended that ‘United

States Commissioners should practice taw— inthe

Courts of the United Statcs. United States Commis-

sibners may engage in law practice in the state anil |

local Courts.

The Court of Appeals relied heavily in its opinioti

upon the fact that petitioner had waived his. objection

to the conflict ereated by Mr. Miller’s being both his

defense counsel and a United States Commissioner. It

is petitioner’s position that he/ was not able to waive

- Tok ee

either the irreconcilable conflict -of interest nor Mr.

_ Miller’s disqualification from practice in the United

States. Courts; that he could not, by a purported

Waiver, confer on Miller the privilege of practicing

which is reserved by law to the Court itself.

II.

THE SUPREME COURT. OF THE UNITED STATES SHOULD

ESTABLISH THAT AN ACCUSED CANNOT BE CONVICTED .

OF A CRIME SOLELY UPON THE UNCORROBORATED TES-

TIMONY pF A PURPORTED ACCOMPLICE.

The present ease isa classic example of the convic-

tion of an ‘accused on the entirely uncorroborated

evidence of alleged accomplices. Witnesses Hall at id-

~~ McClure, by their own admissions, committed the bur-

glary of -the First. National Bank of Cottonwood,

” Cottonwood, Idaho, They were both indicted, they

both plead guilty, they were both convicted, and they

Were both w aiting to be sentenced at the time that they

‘testified in U.S. v. Audett. (59, 90.) Both witnesses

testified that Audett conceived the plan of the ‘bur-

_glary, solicited them to accompany him, and directed *

them in the” accomplishment of the crime. But for

the testimony of Hall and McClure, there was no other

“evidence to connect Audett‘to the crime. Thereafter,

each received .a “sentence’’—Hall, one -hour, © in cus-

--tody of the Marshal ; McClure, six months, coneurrent

with a theft sentence: P-titioner, Tw enty Years.

The rule which allows conyiction upon uncorrobo- -

rated evidence of purported accomplices is unjust. It

encourages perjury. It fails to provide adegnate safe-

‘guards against the danger of conviction of innocent

men. , af ; .

Even an honest and upright man. succumbs .ocea-

sionally to the temptation to sacrifice: another ta hed

himself.. A eonfessed eriminal is proven unable te

withstand temptation. It is not just to- tempt Ahinn

further. Pointing his finger at another can he | CX-

“changed for freedom or a reduced sentence,

Many states, recognizing the fact that testimony of

accomplices is unusually unreliable have passed stat-

utes: which provide that an accused may not be con-

vieted of a crime on the rasta oe testimony of

un alleged accomplice. ry .

California Penal Code, Section 1111,

New York Code of Crim. Proe., Section 399,

are but. two. :

. Some states, even iii the absence of statute, ae re-

fused to allow convictions on the uncorroborate d testi-

‘mony of an alleged ‘accomplice.

Coleman v. State (Md.), 121 Atl. 2d 254;

‘ | Witham uv. State (Tenn. a 232 So.W. 2d a.

~The reason for the rule is well alae in

Watson v. State, 117 Atl. 2d 549, 552:

‘It is a firmly established rule in this State

that a person aceused of a crime may not be con-

victed on. the uncorroborated testimony of-an ar-

complice. (Citations.) -The reason for the rule

requiring the testimony. of. an accomplice to he

corroborated is that it is the testimony. of a per-

son admittedly contaminated with guilt, who ad-:

_ mits his participation in the crime for which he

particularly . blames the defendant, and it should

be regarded with great ‘suspicion and caugon, be-

“cause otherwise the life oiliberty of an innocent

person might be*taken away by a witness who

makes the accusation either to gratify his malice

‘er to shield himself from punishment, or in the’

hope of receiving clemenc "y by turning States” evi-

dence. (Citations.)’’ ,

The Ceiank of Appeals quotes Wigmore (Ev idence,

3rd Edition, 1940, Section 2057) where Pr ofessor Wig-:

‘ more argues in favor of the rule allowing conviction

on uncorroborated evidence. His argument. is that the

promise of immunity is not ‘‘inydriably’’ made and

even if made,-should not “invariably”’ cause distrust.

However, the danger of perjured testimony is serious -

~ even though a promise of immunity is not made ‘to |

every alleged accomplice and even though the promise |

of immunity does not always induce perjury. It is

seripus because the promise of immunity: is fr equently

made and because the tem inisetea to i is always_ coords te

present. | —, ss

The: Federal rule has been: contrary to i rule of

_law being urged by petitioner, The. Court of pi ee

re fused to adopt the rule urged by petitioner’ because :

of prior expressions of this Court approving the’pres- -

ent Federal rule. It is: up to the Supreme Court of

‘the United States to establish as the law of: thé land

the only fair rand just rule of law in this regard.

eo rn

' THE COURT OF APPEALS HAS MISAPPLIED THIS COURT’ S

DECISION IN PRINCE v. UNITED STATES. }

Petitioner was charged by two counts on an indict-

_ ment with the violation of two subsections of 18 U.S.C.

‘Section 2113. Count I charged a Violation of sith-

section: (a), entry of a bank with intent to commit

lareeny:- Count TI charged-a violation of subsection

(b), grand larceny. He was convicted on both counts

and sentenced on Count I to 20 years imprisonment

and on Count IT to 10 years: The Court of Appeals

held the District Court in-error in imposing two sen-.

tences for the one offense. _The Court of “Appea ‘als

further held that the sentence on Count IT. became

merged in the sentence on Count I and modified the’

judgment by striking therefrom the sentence imposed.

on Count IJ. Petitioner filed a petition for rehearing

in which he ‘urged that. the seritence on ‘Count The

merged into the sentence ‘on Count TI, ‘that’ the sen-

tence on Count I should be stricken, and that only the

sentence on Count IT should stand. Petitioner's rea-

son for such a contention is that Count ll charged.

the more serious offense. al

~ Count TI charges the actual commission of a Mirecny

and therefore defines an offense more ‘Serious than

Count I which chatges an entry with intent to commit

larceny. 3

Many Courts have held that where defendant has

committed but one offense and has heen sentenced

erroneously-under more than one subsection of Sec-

seg A : li

tion J113, that he may. be sical only for the more.

agravlited crime.

Wilson v. United States, 145 Fed. od 734;

- Wells v. Swope, 121 Fed. Supp. 718; —

- United States v. Harris, 97 Fed. ihne 154;

United States v. Tarricone, 242 Fed. 2d 555;

United States v. Nirenber¢ g, 242 Fed. 2d 632 ;

United States v. DiCanio, 245 Fed. 2d 713.

Prince v. United States, 352 U. S. 322, held that an

_ entry. with intent to commit robbery under 18 U.S.€.

2113 merged into the completed crime of. robbery, ;

Prince v. United States (supra) further held that_.

hy 18 U.S.C. Section 2113(a), Congress-intended. to -.

provide a penalty for ip a robbery just as severe

as the penalty for a fully eqnsummated robbery.

18 U.S.C. Section 2113(a) includes not only at-

tempted robbery but also attempted larceny, Petitioner —

was charged with attempted larceny by Count FI of the

‘indictment. Wheh petitioner was convicted of a com-

. pleted larceny under Count II, the ee merged

_ Into the completed | crime.

Prince v. United States, 352 U.S, 322.

Therefore, the District Judge should have sentenced

petitioner on. Count II only which carried a maximum

sentence of 10 years. i

18 U.S.C. Section 2113.

- The District Judge. sentenced petitions: on’: both .

counts. The Court, of Appeals while holding the sen- .

tence on both counts error, refused to — that Count

I rherged into Court. II for the reason that the Dis-

trict Judge would have intended the 20 year sentence:

to stand. However, had the District. Judge followed

Prince v. United States, supra, and sentene¢d pete

tioner only upon the count charging the ‘completed -

. erime, He could have sentenced petitioner to 10 years

only. |

It is true that a , violation of aalietion (a) of Sec--

tion 2113 cari les a Maximum penalty of 20 years. The

reason is explained in Prince v. United States, Supra

e.g. attempted robbery and robbery were intended by

_ Congress to be punishable by the same maximum im-"

prisonment. However, subsection (a) also defines at-

tempted larceny. The ¢rime of robbery carries a.

heavier. penalty than the crime of lareeny because it is -

a more. @ricus crime. | Paes et

Congress ‘could not have intended the incongruous

_ result that a larceny. not consummated carries a pen-_

alty double the penalty incurred where a lareeny is

onot consummated: As a matter of fact, the hroper ‘pro-

eedure to be folluwed by the Court of Appeals was to

remand the case to the District Court for spdetei ‘Tmi-

“nation of the sentence within the maximum: allowed -

—_—by-law.— ma abe ane ae se

Pease v. United ; States, 352 US. 329, 309.

Wilson uv. United States, 145 Fed. 2d 7343.

United States v. Harris, 97 Fed. Supp. 154. ©

SUMMARY OF ARGUMENT. .

1d. This Court must establish that a United States

Commissioner cannot appear in a United States Dis-

triet Court, as adv ocate for : an accused. 4

. This Court must establish. that an accused can- :

not be convicted ofa crime solely upon the uncor-

—roborated' testimony of purported accomplices. ancattd

3. - This Court must clarify the meaning of its -

former decision, Prince v. United States, for the in-

struction of the several Courts of Appeals.

Dated, San Francisco, California, °

June 1, 1959. : aes

Respectfully subsnitted,

Tomas M. JENKINS,

LEsLir GENE MacGowaw,

Attorneys for Petitioner.

_ (Appendix Follows.)

* | YANKWICH, District Judge :

| / Appendix. 1

NITED STATES COURT or APPEALS &

i FOR THE NINTH CIRCUIT

/ James Henny AUDETT, eee ae! a |

; ee ‘ ila t ‘ . <

Soo ne reeks | No: 15,909

a -

} tay ot, _., f Mar: 31, 1959 - }

’ Unrrep STaTEs OF AMERICA, . 2 ae |

i he ores | |

oe i

- Appeal’ ous the United States District Court for the District.

of Idaho, Central Division :

wos

3 ( e

Before POPE and JERTBERG, Circuit Judges. ,. |

| YANKWICH, District Judge 5 gee

’ On January 25, 1956, the Grand Jury for the United States" |

Distrfét Court in and for. the District of Idaho, Central Division, al

". presented ap Indictment against the appellant, - JAMES HENRY -.

~the- First— Nationa] Banko? Cottonwood,—Cottonwood; Idaho,

AUDETT, charging him in Count I with attempting to enter

and entering the First National Bank of. Cottonwood, Cotton- ‘

‘wood, Idaho, the deposits of which were insured by the Federal

Deposit ‘Insurance Corporation, with intent to commit the crime

of larceny,—a violation of the federal law.’.In Count II it was

charged that, on the same day, he took and carried away from

money, property and things of value, a total’value of which was:

$30,000, which were alleged to belong ahd to be ip the pera >

eare, control, management and possession of the ‘bank, with the oo a

intent-to steal &#td recurs them.? © a

118 USC, §2113(a). Sig sae ; :

218 U.S.C., § 2113(b). SS cae ae ae :

-@-

On April 2, 1956, the appellant, appearing in court with one .

of his counsel, Dean ©.’ Miller, was arraigned and entered his

_ plea of not guilty. Av trial was had ‘before a jury on April 9

and 10 of the same year..On the latter date the jury found the

appellant guilty on beth counts. The Court, on the same day,

sentenced. the appellant to the custody of the Attorney General

‘for a period of’ twenty years on Count I and ten years on Count

II, the sentences to run concurrently. Additional facts will appear

further on in the opinion.

This js on appeal from the Judgment. be Agee f

ee ; I

‘THE RIGHT TO COUNSEL

The mest fundamental issue velaed in this case is that of im-—

proper representation by” counsel in violation ‘of: the rights guar-

anteed by the Constitution of the United States—Both the due

process: clause® and the right to coupsel*! are invoked.

It has become axiomatic that, in the absence of intelligent:

waiver, the right to the assistance of counsel..in criminal cases

“is an essential jurisdictional prergguisite to a federal court's

authority. to, oe accused of his -life or liberty.”5 _

« o si c 2

And prejudioe’ will be inferred from. the denial of assistarice of

~ counsel.®

It is argued on behalf of the appellant that there was: such

denial here, because, he was represented at the trial by the firm

of Meek and Miller, consisting of Frank E. Meek and Dean E.

Miller, and that Dean .E. Miller-was, at the time of such repre-

«sentation, disqualified from practicing before the United States

- District Court because he was a United States Commissioner for

. .,the District of Idaho, stationed at Caldwell, Idaho.

Ii is insisted that the United States Commissioner is “an

“officer or, employee” of the administrative Office of the United.

“Constitution of the United States, Ameéngment V.

4Constitution of the United Séates, Amendment VI. — ya

5 Johnson’ y. Zerbst, 1938, 304 U.S. 458, 466-467.

6Glasser v. United States, 1942, 315 U.S. 60, 76. =

States who is forbidden by the Judicial Code to. practice law.7

The argument is grounded upon the erroneous premise that, be-

cause Section ‘607 is eontained‘in Part III of, the Judicial Code »

which. relaggs to “court officers and employees”, the disqualifica-.

- tion applies, But the fallacy of the-argument lies in the fact that

this part consists of nine chapters,® in which the Administrative:

Office and the United States Commissioners are treated and their

duties defined separately. The. Chapter also includes ‘the entire

judiciary from the Supreme Court down to the Customs Court.

“And if the designation of “officers' and employees” in. the title of .

these chapters were sufficient to make the commissioners subject

to the limitations contained in the Code against the practice of

- law, then the appellation would be broad enough, to encompass

the entire judiciary, the clerks and the marshals. Yet it is sig-

‘ ideas dar ees the Congress has intended to prohibit the

practice of laW. by officers of the United States it has. done so by

C 6Nac hether the enactment relate of judges of the

- courts;? marshals, court clerks.!! Caer e,

The fact that the Adininistrasivé Office passés on the lawful

fees of the United States of commissioners!? and furnishes them

With offices, equipment and supplies! is not sufficient to make

them “officers or employees” of the Administrative Office. any

~more than the payment by the Administrative Office of expenses

of the judges and of the cost. of their books and equipment makes

the judges of the various courts “officers and employees” of the

Administrative Office.

_ The only reason for the separate ‘inclusion of the phrases “and

the lawful fees of United States commissioners”!4 and “the offices

of the commissioners”!5 is because, vith few exceptions, the com-

missioners receive, in lieu of comensation, the. fees. allowed by

728 U.S.C, § 607; 3 Fis

§28 U.S.C., Chapter$%41 to 57, e.vering § 601 io § 963.

928 U.S.C. § 454.

1028 U.S.C., § 556.

1128 U.S.C.,§ 955.

1228 U.S.C., § 604(a) (6). ae .

1328 US.C., § 604(a)(9). = :

1928 U.S.C., § 604(a) (6). «

1528 U.S.C., § 604(a) (9).

‘

‘oa

-iv

_law. Commissioners, such as National “Park Commissioners, who

receive salaries fixed by the court which appoints them, are re.

quired to account for‘fees collected by them ‘as “public monies’’.!%

All commissioners are inferior officers, adjuncts of the ‘courts,

. possessing and exercising ‘limited judicial powers of their own.!7

They are appointed by the courts.!8 Their fees and expenses are

determined by statute.!® As there is.a maximum provided for the -

fees of each commissioner, he is required to acevunt for them to

the Clerk of the District Court in which he resides.?°

The only ‘direct limitation as to the qualifications of eommis-_

sioners is.that which provides that a person holding a civil or ~

‘military office or employment ,under the United . States or who

is employed by any justice or judge of the United States

“shall not at the same time hold, the office of United States

Commissioner”’.* 21

If we exclude the one provision relied on, the inapplicability

of. which has beén fully demonstrated, there is no Provision pro-

hibiting commissioners from practicing law in the courts of the

United States.2? That this was the intention of the Congress is,

also shown by an amendment which became effective .on Septem-

ber 2, 1957, and which specifically provides for certain additional

-eroluments to United States Commissioners —

1628 U.S.C., § 634. ° °

17Todd v. United States, 1895, 158 U.S. 278, 282; Grin y. Shine, 1902,

187 U.S. 181, 187; Go-Bart Importing Co. v. United States, 1931, 282

U.S. 344, 353-354; Freeman v. United States, 9 Cir., 1946, 160 F. 2d 69,

70; Swanson, v. United States, 9 Cir., 1955, 224 F. 2d 795, 799. In a-

recent ease the Supreme Court, referring, arguendo, to the persons re-

ferred to in $$ 601-963 of Title 28 of the Judicial Code, charac terizes

them as

‘the Broup. of persons who serve as conventional court officers and

are regularly treated as such in the law.”’ (Cammer vy. United

States, 1956, 350 U.S. 399, =

1828 U.S.C., § 607. - .

1998 U.S.C., § 633. is

2028 U.S.C., § 636. ni

2128 U.S.C., §.631(b). Significantly, this provision does not apply to

‘part-time referees, nor ‘to clerks or deputies of United States. courts

whose appointment ag commissioner is appreved by the Director of the

Administrative Office of the United States,

2228 USC. —

| os .

/ : ,

- ay a i +

“who are required to devote full time to thé performance of

the duties of the office * * * and who do not -engage in the

practice of, law’’.23 ;

This warrants the conclusion that the Congress, by enacting

this. provision, recognized that commissioners not in this class;

i.e., those who, like Mrs Miller in this case, are part-time commis-

sioners receiving fees for such services as they perform and re-.

taining them as compensation, detvting part time only to their

' , pfice, pre permitted to practice law in the court of the United

‘States, This accords with the policy obtaining in other instatices,

such as part-time referees in bankruptcy. who are also permitted

* to practice law before the courts of the United States, except in

bankruptcy cases, while’ full-time referees may not do so before

any court.24 > | , ;

Granted that “ene who represents a person accused of crime

should exercise’ his duty with highest fidelity, we cannot, in the .

light of the preceding analysis, see how a commissioner of the

United States who, in certain instances,- exercises the right of a

committing magistrate which may be exercised by state judicial

‘officers “empowered to commit persons prreed -with offenses _

—- the laws of the United States”,?* thereby disqualifies

imself from acting, at the choice of @ person accused of an

offense against the United States, as his attorney, in the trial of

a criminal case with the initiation of which he has had nothing

to do. At best, ‘the right to a preliminary eXamination may be

waived.**’ The waiver does hot involve the surrender of any con-

' stitutional right.27 And while the hearing before a commissioner

is a step in the institution of a criminal proceeding, it should not

act as a Bill of Attairider against the conumissioner so as to deny

him the right to act as counsel for a defeudant before the courts

“of the United States. The warning of a great Justice comes to

-Mind:

* 7928 U.S.C., § 633(8)(¢); Pub. L. 85-276, See. 1, 2, 71 Stat. 600.

**Bankruptey Act’ of 1938, § 39(b)(2), 11 USIC, § 67(b) (2), as

amended June 28, 1946, ¢. 512, See.. 5, 60 Stat. 326; July 7, 1952, e. -

579, § 12, 66 Stat. 424. :

*5Rule 5(a), Federal Rules of Criminal Procedure. f

**Rule 5(¢), Federal Rules of Criminal Procedure. |

" , VGiordenello v. United States, 1958, 357 U.S. 480.’ See, United States

¥. Walker, 2 Cir., 1952, 197 F. 24287. :

“Privileges so-fundamental_as.to be inherent in every con- °

cept of a fair trial that could be acceptable to the thought

of reasonable men will be kept inviolate and inviolable, how- -

ever crushing may be the pressure of incriminating proof.

But justice, though due.to the accused, is due to the accuser

also. The concept of fairness must not be strained till it is

narrowed to a filament. We are.to keep the balance true.”25

WAIVER

Because the contention here .made as to the status of commis-’

sioners, if correct, would affect many part-time commissioners in

this Circuit, we have discussed it with great fullness. We are, led

to the inevitable eonclusion that there is no disqualification ‘for

a United, States Commissioner to represent a person accused of

crime in the trial of a criminal case before a court of the United

States, in “a matter’ with which he was not connected , as a

ie, commissioner.

In the case before us there is the edided : Sei that after the

appellant employed the firm of which Mr. Dean E. Miller, the

United States Commissioner, was.a partner, the question of pos-.

sible disqualification was fully discussed with the appellant.

There is in the record’a letter dated March 27, 1956, written by

the senior partner of the firm which indicates that the matter

had been discussed fully with the United States Attorney and,

informally, with the Judge of the Court by counsel for the ap- ,

pellant. Appended to it was a waiver. The letter and waiver arc

reproduc ced in the margin.?? — :

28Mr: Justice Cardozo in. Snyder v. Massachusetts, 1934, 291 U.S.

97, 122. ‘

: 20°‘March 27, 1956.

Sherman F. Furey, Jr., : ;

United States Attorney, — ;

District of {daho, Boise, Idaho

Re: United States vs. James Henry Audett

‘Dear’ Sir:

As you know, I discussed recently with you the fact, that my partner,

Dean E. Miller, is a duly appointed, qualified. and acting United States -.-

Commissioner, my purpose. being to ascertain whether in your opinion

it would be necessary for him to resign #s sueh because of this firm's

vii

The experienced trial judge, not content with the written

waiver, which was filed in court on M&rch 29, 1956, brought up

the matter in oper court while the jury wes being selected. The

following proceedings occurred: . :

“The Court: Before we continue to select a jury for this

case, I have a matter to take up here. - is

“The Defendant being present, it has come to the attention

of the Court that it might be well to see if the Defendant ig

fully advised that Mr. Miller, who is of counsel for the

Defendant, is a-Commissioner—a United States Gommis-

_ sioner for the District of Idaho. You are, of course, aware.

- of that? redlst eae.

“The Defendant: ' Yes, sir. .

_ “The Court: And you, Mr. District Attorney, are aware:

of that? et a

“Mr. Furey: Yes, Your Honor. | pe

“The Court: Do you waive any question as to his appear-

ing here as counsel for you, Mr. Audett? ;

=" = =

employment by James Henry Audett te represent. him: in his defense

against the indictment filed against him, and upon which he is to .be

arraigned on April 2nd, in the Federal Court Room at Moscow, Idaho.

I also informally discussed this matter with Judge Clark.

This is to advise you that our client, James Henry Audett, has been

fully advised of this. matter and of the fact that Mr. Miller is a United

- States Commissioner, and as a matter of fact, will be asked to read this

letter before it is mailed to you, and to endorse thereon his waiver of

any objection he-might have to the fact Dean is a United States Com-

missioner. He is further being advised that at the time of his arraign-

‘ment he Should make an oral waiver of any objection he might have.in ~

thematters. . , rs |

_ Yuurs ‘very truiy, ;

ME & MILLER

: -/S/ By FRANK E. MEEK, |

FEM: Ir ee Frank E. Meek. a

e Waiver

I, James Henry Audett, hereby certify that I have réad the above

. and foregoing letter, that I have been fully advised that Dean FE. Miller -

is_a United States Commissioner, and hereby expressly waive any ob-

- jection that I might have to his being such in the matter of being one —

of my attorneys in the above referred to matter. bec

; /s/ JAMES HENRY AUDETT

(Ende»ied): Filed March 29, 1956.’’ :

the proceedings and the scope of the_saiver...

vil

“The Nefendant: Yes, sir. |

“The Court: Now, you may ‘proceed.”.

The appellant here is not a stranger to the law. There is a -

-record of his conviction of another bank robbery in the records

‘of the Eighth Circuit. 30 And there is evidence in the record that

he had written a-book called “THE RAP SHEET” relating to

his various experiences: So, despite the argument that he is of

Indian extraction, we are .not confronted here with an illiterate

person who can rightly claim that he may not have understood

“Waivers of the most fundamental rights, ar as waiver of thie,

right to the assistance of counsel,®! trial by jury,®? and consent

to trial by a jury of” less than twelve,?3 ard permissible. And we

“see no reason why, assuming that an unconscious conflict of in-

terest might exist between the duty of one of his attorneys to-

wards him, and that attorney’s duty arising from his employment

as a United’ States - Co1missioner, the appellant, when apprised

of the fact, having chosen not only to retain the commissioner as

one of his counsel, but having both in writing and orally in open

court waived any question that might arise from such, eonflict,

can be heard to complain. :

If. a situation .existed such as pa nen this Court recently,* 34

30Audett v. United States, 8 Cir., 1942, 132 F. 2d 528.

31Johnson v. Zerbst, supra Note 5; Glasser v. United States, supra

- Note 6.

$2Rule 23(c), Vederal Rules of Criminal Pesriodane. See, Schick v.

United States, 1904, 195 U.S. 65, 71-72; Adams v. United States, 1942.

317 U.S. 269, 275-278; Echert v. United States, 8 Cir., 1951, 188 F. 2d

336, 339; United States v. Cantor, 2 Cir., 1954, 217 F. 2d 536, 538;

Mason v. United States, 10 Cir., 1957, 250 F. 2d 704, 705.

” 35Patton-v._United abigtes, 1930, 281 U.S. 276, 312 313; Rale 23 23(b),

Federal Ruics of Criminal Procedure. —

34Kyle v. United: States, 9 Cir., No. 16,144, decided oe 16, 1959.

‘An nano should never have counsel not of his choice “goiy :

724)

- By. the same token, ie chosch his ‘waned, he should not ‘be allowed

‘ to claim deprivation of due process through inadequate representation,

‘unless the secord warrants the conclusion that there was gross and de

: ee misrepresentation. -

en te eee,

—_ . | “. ‘

-—-

where a conflict between two dulustenss represented by the same

attorney appeared, resulting i in Possible detriment to one of them,

the problem of adequate: representation might be inquired into.

But no such situation confronts us here. The defendant was tried

separately. Both members of the law firm employed fully pro-

“tected the rights of the defendant. Every witness’ was’ cross-

examined. The examination of-one of the accomplices, Walter

Clyde McClure, by Mr. Miller was quite extensive. It covers

twelve pages: in the printed record. The plea of guilty to the

bank robbery and the. fact that he is an inmate of a State prison -

_ were brought out. The cross-examination of the other accomplice,

Donald Wayne “Hait,-by-Mr, Frank E. Meek was even more ex-

tensive. It covers twenty-nine Pages, in which *lis~ previous con-

‘viction was stressed.

At the conclusion of the Government’s case, Mr. Miller made 0

motion to. acquit. ‘Significantly, the motion was broad eriough to

cover practically all the points made in this appeal, excepting

only the ee of disqualification. It: is reproduced in the

margin.’

The appellant did not take the al No other. witnesses were

offered on his behalf. The record does not indicate whether this

was upon the advice of his counsel or not. Assuming that it was,

we can draw no inference of dereliction of duty, absent a com-

petent showing that it was anything other than the attorney's

best judgment in the circemstances. No exceptions were taken to

the instructions by either side. A reading of the. instructions

35°*MR. MILLER: If the Court please, comes now the defendant

’ and moves the Court for Judgment of acquittal on the grounds and for

the reasons that at the close of the evidence on behalf of the Govern-

ment the evidence is insufficient to sustain conviction of the offenses

. Charged in the Indictment, and particularly that there has‘ been ng evi-

dence of any real character tending to connect the defendant with the

commission of this crime other than the testimony of accomplices; that

the testimony of the accomplices, while_we realize it is sufficient to sus-

tain a conviction under the rules of this eourt, in this particular in-

stance it is between the two of them, there is no corroboration of any

nature tending to connect the defendant with the commission of this

crime, and there is mo corroboration of the testimony of the accomplices. -

For this Vreason the defendant moves the Court for judgment of

acquittal. .

“‘THE COURT: The Motion will be denied.’’ v

en.

shemeniadiathainienl tn danas a ee . . z

a “

examination thor {v id] hea Forprred, ins moa inetanees, En Ve pret be

4 “Wofendant's Licentiefartion. after eoncletion, ou ithe the Hepner,

And- ane ft

Y . . !

¥ ' . Nog

pomcineasa ng that the Clourt adciaerd fhe ire frilly anata the law

af the engage, evan giring the eantionary anetrietiona aa to the

foutimong of an necomplies, whieh ia to be diseriaced frirther on is

the opinion ° + ; : /

Mlajmes of inadequate representation are frequent Raton ploce -

in owhioh hie enae wae Narted The answer toon rontention of thee

character wae given Wy the t orgrt of Appeals for the Verne

(Srentt. in these werd:

Wee ane: who Appears hefore the eourt with eonneel em

: ploved for hig iefensce ia net deprived of Wie eanatitutional +

righ ty the aesistanee of easel merel heemnse dy ret -§-:

27 spon then No Teanel nes that ane represbntation Aid Hot deers

‘ : :

Wie ctandarde of efretivenrar 79%

. ? 4 . y . 6 . 1

Thore is nocehotting that witnecsee ecisted who eontd hare a i

placed the appelbant slerwhore at the fime when the two aero ON .

plives placed hing at the Wank when the offence was eotmrytted.

ay thats anna other witnesses exicted that wontd have eontradies 4,

the. consistent and -nehaken etary of the twa arecomplices. wh

the phastval facts toctifind te he otlfere verity, ae ite the eorm.

nriceion of the offenses and the apnellant’s participation mot! .

Viet in thea. View of present ceonnsel the PTAs eVAMINAtHION Mat

not have heen “eearehine ~ enongh is not enfReienf te east dis.

edit on the eampetence of the attorners who repre¢ented th:

\ e

appellant at thy trial

Roce x Wonter, 19 CSy., T0488, TAT Fo 2d AR9, B84. See, Merre,

Manter, 10 Civ, 148, 170 Fo Od TAO TAN Kinney y United States :

“atx. 1949177 F. Ba a5, S97 Tn use the oft qneoted lanignage ot ts i —

Wiiha: at this eonrt, in Pa parte Tanmesch, 0 €85 1938, 89 F\ 2 Rae |

=") ‘a defendant oe ee : a ee

having heen represented at the tral) of his nse Ketan adnie

wronsti tinted sont and inry by an attorney of bit own selectian OX"

ref complain that ke has heen dep tat his earstitution a oat “a

te he Tepresented hy connsel heeduse the attorney so. selreted ows

an Ve elaime nockillfaler ineampefent in the handing of 1h, enc

he Tanvuage of Tndge Vinten in United States wo Rae

Cy 1940 976 F. 24 X79. B88. and the mow reeert Jangenace oo oC!

Tody Riggs ins Vrited States v Handy, 2 Cire 1983, ON8 Fo Oe 4

Oo dndlene Ninderean v Rannon, & Cir, M088 FFA PF 9G ARE BN

| eine 5

‘ ; * ia oe

, Attar all, there are few trial lawyers hin ‘on examining. the

creeurd ofa trint eritieally, would not say that “they might have

> done —hetter” Rut steh surmises would not warrant this Court

in branding the defense: in thie eage ‘ag so inadequate as to

amount to denial of the right to. counsel,

:. °

THE SUPEICTENCY: OF THB KVIDENCE

There remaine to consider the auficioney” of the evidence in the

vooual to enetnin the eonvietion. Se doing we bear, in mind that

ony futetion. is not to weigh and eonsider the contradictions and

_inedneietenecive whieh eouysel for the appellant finds in the: testi--

mony of the two aeeomplices in eonneeting’ the appellang. with,

the pobbery Ohr paw Inee Ie to determine whether there is sub-

stantial evidenee 1) “uy port the: verdiet of the jury taking the — -

--, Ven of the evidenee ‘most favorable 1 the Governnent. Ours is

net the fanetion 1y determine whether, on the record, reasonable

donbt eanld or wuld exist The funstion of the Court of Ap-

peale ina ease of this character was summed — with brevity: by

the Supreme Conrt) in these wands

“Tt as net for vs to weigh the evidence ar ta determine the’

erebbility of witnesses The ventict ofa jury must be gue.

tained of there is enhstantial ev nience taki ng the view most.

favorable tw the Ge vernment, to” support ig vee ais

' giver’ in: be ‘of summary The character

“A national depasitory on the dat it was entered

moners and things af a total valne of | #30.000 taken is

yt mM dispnte ore : »

The tastimony, ms!

ac "

yy the bank

The apavctban and Vail met at Poriiand Oregon inthe latter

net of Soetomhyy 1958 Atur sma!) town acgoining Portiand.-

Clas Astorre, | ‘Oregon Ebates ant asker, lis)) bow he was doing and

he was making sx money or if he was bel ur ‘for’ money

- : en ean . ei; ie ~ ~

“Sat 1 United Staten Orr 142%, 85 F 2¢ S1f SOT SQN Ranks \

“ «Nr, 1949. 177 F 94 07. B16 Woadare Lahortones. Inc. Unitec P

States, 9 «Yr TO8D TOS F 9g G05 90% [as Vagus Merchan: Monihern

: ta ?

“SClacee: vy initead States enn Nate & n Sh

xii

to which he answered “he was pretty well broke”, whereupon

appellant asked him if he wished to-“accompany him on a, bur-

» glary, to burglarize a bank”. Hall declined the invitation. He saw .

him again in the middle.of October. |

In the meantime, Hall had talked to Walter McClure, the other. -

accomplice, at whose house he was staying. Ab@at October 24, the |

~ two went to the appellant’and told him that they accepted the

_ proposition. and would: go with him. Appellant asked them to

pick up some tools, which they did. These consisted of a bar

“with a pry bar on one end and ‘a point on the other, some-

thing like a marlin spike on the other énd,.and some wood

drills, bits, and two drift punches. approximately twelve

inches long by about three-sixteenths, and | a coil of rope and -

a six pound hammer.”

On October 26, Hall end McClure met on siibind. who was

in a Studebaker car from which they transferred some tools to '

- MeClure’s car. They ¥ellowed the appellant three or four blocks, .

- where he left his car ed them. They drove to Colton on

- the Washington side of the Columbia River where they: attempted

to burglarize a bank but were unsuccessful. They then drove. to

_ Lewiston, Idaho. Hall and McClure used assumed names in regis-

_tering ‘at a hotel..The appellant registered in‘ his own name. The_

next day, after eating breakfast, they drove to Cottonwood, Idaho.

After looking over the Cottonwood bank they. drove to Arco,

Idaho. On October 28, 1953, they returned to. Cottonwood and

“cased” the bank. After darkness, they entered the Cottonwood

-. bank by breaking a skylight and lowering a rope coil through the

opening. Hall slid. down the rope, opened the door to the rear

alley allowing McClure and the appellant to enter. The bricks

‘from the safe were removed. Appellant and McClure éntéred the

vault and returned with a . “little leather Secretary” and silver

and gold coins and other property removed .from the safe deposit

boxes, amounting to the total value of $30,000. The plunder was |

later divided equally between the three participants.

‘Appellant participated in the planuing of the entering of the

safe and the removal of the property. Thé ‘three left the building

through the back door leaving the tools and the rope at the place

‘of the burglary. All-three were later arrested.

one %

. \

Part of the money and property was recovered, from Hall and

McClure. All - were ‘ separately, indicted ‘on charges of violating

_the Bank Robbery Statute.3 Hall and McClure pleaded guilty

“and testified for the Government at the trial.

- Counsel for the appellant. concede that Hall and McClure agree.

very closely as to the manner in which the crime was committed,

but point to certain inconsistencies in their marrative as fo the

appellant’s connection with the crime. —

As already pointed outy: it was for the jury to resolve these and

other inconsistencies beyond a-reasonable doubt. They evidently

did so by finding the appellant guilty. And ours is not the func-

tion to determine whether, in- view of these incdnsistencies, a

reasonable doubt —_: or-did exist. The jury’s verdict determined

- this question. #9 :

The Court gave to the jury a cautionary insiruetion whieh left

corroborated testimony of the accomplices. The full ‘instruction ‘$

_ of thé jury to consider it. The testimony of accomplices, however, isto.

: — in the margin.‘'. No’ exception was taken to this — /

918 U.S.C,, §.2113(a) and (b). Barone

_ 49See casey cited in Note 36. yr ae ¥ ‘

4M‘ An accomplice ‘is defined to be one concerned: with others in the

couumission of a crime. It is a settled: rule in this country that even -

ceomplices in the comfnission of a erime are competent witnesses, and

that the Government has the right to-admit ‘their testimony and that

be received with caution and weiglied with great care, and while it is

‘true that a jury may convict on. such testimony alone, yet the jury

should not rely on it unsupported for a-cony ictior, unless it produces i in

their minds a positive conviction of its ruth. If it does, the jury should .

act upon ae &

- “*You are instructed, therefore, that you are to’ receive the testimony

of an accomplice with caution and examine it with care. This does not

mean, however, that you are.to arbitrarily reject it. It only means that.

you are to examine it with care; and if, having done so, you believe its ~

truth, then you are to give it the same credence as the testimony of any

other witness. In considering the evidence, you should consider this

appearance, his manner of testifying, the probability, or improbability

of the facts to which he has testified: his motives, or interest in the

xiv sh Sopp fo ae oe oe Se ae me

instruction. It is now argued. that it should have been’more elab:

orate and should have emphasized the motive*of the accomplices |

in securing “freedom or a reduced sentence” in exchange for this’

testimony. In view of the absence of a request for additional in

structjons no error can be predicated on. refusal ‘of instructions -

_ or: error asserted in the gnstroctions given.*? Of course, in ne

- cages the court may notice plain error.*®

“That situation does not exist here, for the. instruction given »

covered fully the law as applied in this circuit. 44°In ruth, ap-

pellant’s counsel are asking'us to adopt the rule, which: obtains

in certain ‘statgs, that conviction cannot be obtained on the un-

corroborated testimony of an accomplice. The short answer is

that the federal doctrine which permits such conviction is sound

and, consonant with the rule obtaining in the faw of evidence :

‘ that the testimony. of one witness, if believed, is suffieient to -.

+ ease; whether or not his eyidence is consistent with itself and with the

_other evidence or admitted facts of the case, and if, having considered .is

testimony.in the light of all. these rules you believe that he has told the

truth, then I instruct you that the defendant can be convicted on this

evidence alone, if that evidence convinces you that this:defendant !s @

guilty beydnd a reasonable doubt.

42Rule 30, Federal Rules of Criminal, Procedure.

_ Rule 52(b); Federal Rules of Criminal Procedure; Lash v. United.

‘States, 1-Cir., 1955, 221 F> 2d 237, 240; Herzog’ v. United States, 9 Cir.

* 1956, 235 F. 2d 664, 666-668; Smith v. United States, 6 Cir., 1956, 230

+ ¥. 2d 935, 939; United States v. Private Brands, Inc.,-2 Cir., 1957, 259

_ F. 2d 564, 557- 558. The power should be used sparingly and confined to

cases in which miscarriage of justice would, otherwise, result: Bell +

United States, 8 Cir., 1958, 251 F. 2d 490, 494; United States v. Vaseh

7 Cir., 7955, 222-F. 2d 3; 5-6; Horton. v. United States, 9 Cir., 1949, 173

F. 2d 138, 141; and see,- Smith v, United States, 9 Cir., 1949, 173 F. 2d

181,.184. e

44Craig v. United States, supra Note 36. Moreover, the entire charze

in the casé conformed to the test laid down by this court for instructions _ +

: in criminal cases: :

‘‘Tn a criminal case the court must instruct on all essential questions

of law involved, whether or not it is requested to do so.’' (Samuel -_

v. United States, 9 Cir., 1948, 169 F. 2d 787, 792) "ee

; ,

. .

. ae .

es : xV

°_ « 4 sy

prove a fact,4® is approved by the Supreme Court and is firmly

established inthe law gf this and other cirepits.*¢

The cautionary instruction, although desifable, is hot “amab-

solute necessity.”’47 ‘eek | :

The rule requiring corroboration of accomplices is. of conti-

_ hental European origin: In the English system questions con-.

cerning it did not appear dntil the énd of the Seventeenth

Century. Of its purport, Wigmore writes: +“

“As a matter. of common law, then, the. doctrine was uni-

versally understood (except by one or. two Courts). as

amounting to no rule. of evidence, but merely to a counsel

of caution given ‘by the judge to the jury. It followed that

the jury might or might not regard the caution by acquitting

upon: an uncorroborated ‘accomplice’s testimony; that - they

alone ‘were to detérmine whether corroboration existed and

was sufficient; and that the trial’ judge’s omission of the

caution was of itself not a ground for a new trial, being a.

. Q

45Wigmore on. Evidence, 3rd Ed, 1940, § 2034. The rule requiring

multiple witnesses in treason; perjury arid the like, is a departure from

this doctrine based on historical and other considerations. So also is the

rule requiring corroboration. Wigmore, op. cit., § 2032. >

‘6Holmgren v. United States, 1910, 217 U.S. 509, 523-524; Caminetti

v. United States, 1917, 242 U.S. 470, 495; Kuhn v. United States, § Cir.,

1928, 24 F. 2d 910, 914; Craig v. United States, supra Note 36, p. 827;

Pina v. United. States, ‘9 Cir., 1948, 165 F. 2d 890, $91-892; Todorow v._:

United States, 9 Cir, 1949, 173 F. 2d 439, 444; Doherty v. United

States, 9 Cir., 1936, 230 F. 2d 605. And see, Lyles v. United States, 5

‘Cir, 1957, 249 F. 2d 744, which contains an interesting comment on this

rule, éspecially as applied by this court. “A

‘In Pina v. United States, supra Note. 45, this ecurt approved the’

_ following language of the Court of Appeals for the Second Circuit as to .

.. the need for such instruction: ’

‘*The warning is never an absolute necessity. It is usually desirable:

to give it; in close cases it may turn the seale; but it at most is

merely a part of the general conduct of the trial, over which. the

judge’s powers are discretionary, like his control over cross-exami-

nation, or his comments on the evidence. If he thinks it unnecessary

—at least when, as here, the guilt is plain—he may properly refuse

to give it. Such we understand to be.the upshot of the decisions.’”.

(United States v. Becker 2-Cir., 1933, 62 F. 2d 1007, 1009)

Be matter solely for the trial judge’s discretion. 48 (Emphasis

theirs)

He condemns the reasons tichind a contrary policy. The impliea-

tion that an accomplice testifying for the Government must dave

relied on promise, express or implied, of immunity or leniency,—

an argument which “— in this case have stressed, he rejects

by stating:

“The promise of immunity, then, being the essential element

_ of distrust, but not being invariably made, no invariable rule

should bé fixed as though it had been madvt. Moreover, if

‘made, its influence must vary infinitely with the nature of

the charge and the personality of the accomplice. Finally,

credibility is a matter of elusive variety, and it is impossible

and anachronistic to determine in advancthat, with or with-

out promise, @ given man’s story must be distrusted.’4? & m-

phasis added) .

So there eae reasons, historical, psychological and other, |

for not changing a cautionary rule into a rigid and dogmatic ce:

method of’ proof for ordinary criminal offenses. The exception in

treason®® or perjury®! should not obtdin in the trial of the ordi-

nary criminal case. In the case of treason the provision is em-

bodied in the Constitution.5? In the case of perjury the rule

“is deeply rooted in past centuries.”’53 —

Any change of: the rule should be made by ‘Congressional legis-

lation applicable to all federal courts, and not by judicial fiat,

which, unless it be that of the Supreme Court, would affect

certain federal courts only.

Ww at has just been said would require the . affirmance of the

judgment in its ‘entirety. There is one fact, however, of’, which

“48Wigmore, op. cit., § 2056. a : am teen

49Wi igmore, op. cit,, § 2057. ne

Constitution of the United States, Article II, § 2, Cl. 3; 18 U.S.C.

5118 U.S.C., § 1621.

52Constitution of the United States, Article ITI; §2, Cl. 3.

53Weiler v. United States, 1945, 323 US. 606, 608- 609; ase, op.

cit., $6 2030-2044.

i | me 9" sewii

we take notiee as. plain error.54 The judgment in this case. was

rendered on April 10, 1956, and the sentence imposed was: the

Taximum of twenty years on Count I, which charged entering

the bank with intent to commit lareeny,55 and the maximum of

ten years on Count II, which charged the robbery of’ the bank

of property of the-total value of 0,000.5 Since then ‘the Su-

preme Court has held that the tWo subdivisions constitute but one

, offense and that the imposition of two sentences is illegal.57

The trial judge, by imposing the ‘maximum sentence on Count I

and allowing the sentence ‘on Count Il to run concurrently, in-

dicated that he intended the maximum sentence ‘to be twenty

_ years. Thus the sentence imposed on Count II became merged in

the senténee imposed on Count I. In. these circumstances the

policy to be followed is to vacate the lower ‘sentence on the

second count.5* The fact that the sentences run concurrently and

that, consequently, only twenty years would be served, should not

stand in the way of such action because . .

. ‘St is well understood that a multiplicity of sentences im-

" ’ pairs ‘a prisoner's opportunities for pardon or parole.”’5®

The Judgment will therefore be modified by striking therefrom

the sentence imposed on Count II. Asso modified the Judgment

is affirmed. a pe , er

(Endorsed:) Opinion. Filed Mar. 31, 1959.

> Paul P. O’Brien, Clerk.

hiss

‘4Rule 52(b), Federal Rules of Criminal Procedure. See cases cited

in Note.43, *

_ 5518 U.S.C, §2113(a). °

5618 U.S.C., § 2113(b). ¢° :

'*Prinee vy. United States, -1957, 352 U.S. 322; Heflin v. United States, .

No. 137, Deeided February 24, 1959. at

5SRemine v. United States, 6 Cir., 1947, 167 F. 24 1020, 1021; Price vy.

a United States, 6. Cir., 1951, 193 F. 2d 523, 524; Un .d States v. De

' Fano, 2 Cir., 1957, 245 F. 2d 713, 717, which involved sentences under

§,2113(a) and § 2113(d) of Title 18. beh area

‘*Hibdon v. United. States, 6 Cir., 1953, 204 F. 24 834, 339.

XViii. c

United States Court of Appeals

No. 15,929

James ‘Henry Audett, : nes q

oe Appellant,

vs. _ RN ald

United States of America,

Appellee. ;

JUDGMENT |

Appeal from. the United States District Court for

* the District of Idaho, Central Division.

‘This cause came on to be heard on the Transcript

of the Record from the United States District Court

_for the District of Idaho, Central Division, and was

duly submitted.

On consideration whereof, it is now here ordered

~and adjudged by this Court that the judgement of the

said District Court in this cause be, and hereby ts

modified: by striking therefrom the sentence imposed

on Count Il (10 vears). As so modified, the Jude-

ment of the said District Court in this eanse, de, anil

hereby is affirmed.

(ENDORSED) Judgmetit

Filed and entered: March 31, 1959

_.Paul P. O’Brien, Clerk

STATUTES. *

‘

Title 18, § 2113

(a) Whoever, by force and violence, or by intimi-

dation, takes, or attempts to take, from-the person or

presence of another any property or money or any

‘other thing of value belonging to, or in the ¢ ‘are, cus-

tody, control, management, or possession of, any bank,

0. any savings and loan association ; or

Whoéver enters or attempts to enter any bank, or

any savings and loan association, or any building used

in whole or in part as a bank, or as a savings and

loan association, with intent to commit in such bank,

or in such savings and loan association, or building,

or part thereof, so used, any felony affecting such—

bank or such savings and loan. association and. in

Violation of any statute of the United States, or any

lareeny— . 3

Shall be fined not more than $5,000 or imprisoned

hot more than twenty years, or both,

(b) Whoever takes and carries away, with intent

to steal or purloin, any property or money or any

other thing of value exceeding $100 belonging to, or

in the eare, custody, control, management, or posses-

sion of any bank, or any savings and loan association,

sha}] be fined. net more than $5,000 or mmptoqned not

tore than ten years, or both; or

Whoever takes and carries away, with intent to

steal or pu roin, any property or money or any other

thing of value not exceeding $100 belonging to, or in

the care, custody, control, management, or possession

® &

of any bank, or any savings and loan association, shall

be fined not more thah $1,000 or Amprisone ‘d not more>

than one year, or both. | in tae ae

(ec) Whoever receives, possesses, conceals, stores,

barters, sells, or disposes of,-any property or money

or other thing of value knowing tthe same to have been

taken from a bank, or a savings and loan association,

in violation of subsection (b) of this section shall

be subject to the punishment aii by said suh-

section (b) for the taker.

-(d) Whoever, in committing, or in attempting te

commit, any offense defined in subsections (a) and °

(b) of this section, assaults any person, or puts in

“jeopardy the life of any person by the use of a dan-

gerous weapon or device, shall be fined not more than”

$10,000 or imprisoned not more than twenty-five years,

pr both. . | | sf

(e) . Whoever, in committing any offense defined ‘»

this section, or in avoiding or attempting to avoid ap-

| prehensjon far the commission of such offense, or.in.

freeing ‘himself or attempting to free himself from

arrest or confinement for such offense, kills any per:

son, or foreegs any person to accompany him without

the consent of such’ person, shall be imprisoned not

less than ten years, or punished by death if the verdict

o1 the Jury shall so direct.

(f) As used in this section the a “hank” means

any member. bank of the Federal Reserve System.

and any bank, banking association, trust. company.

savings bank, or other banking. institution organized

or operating — the laws of the United States.

Westy

wd any bank the deposits of which are insured by

the Federal Deposit Insurance: Corporation.

(¢) <As used i in this section the term “savings and

loan association’? means any Federal savings and loan

association and any savings and loan association the

accounts of which are insured by the Federal Savings

and Loan Insurance Corporation, June 25, 1948, e.

645, 62 Stat. 796, amended Aug. 3, 1950, ¢. 516, «a

Stat. 394,

Title 28, § 604. Duties of Director gener se

*(a) The Director shall be the administrative officer

of the courts, and utider the supervision and direction

of the Judicial Conference of the United States, shall:

(1) - Supervi se all administrative matters relating

to the offices of clerks and ether cle rieal and adminis-

trative personnel of the courts ;

(6) Determine and pay necessary office expenses

of courts, judges, and those court officials whose ex-

penses are by law allo-vable, and the lawful fees of

United. States Commissioners ;

(9) Purchase, exchange, transfer, distribute, and

assign the custody of law .books, equipment and sup-

plies needed: for the maintenance and operation of

the courts and the Administrative Office and the of-

fiees of the United States, Commissioners ;

§ 605. er estimates .

The Director, under the supervision of the Judicial

Conferenee of the’ United States, shall sn thmit to the

Bureau of the Budget annual estimates of the eX-

penditures and appropriations necessary for the main--

tenance and operation of the courts and the Adminis-

trative- Office, and such supplemental and deficiency

estimates: as may be required from time to time tor

the same purposes, according to law.

Such estimates shall be approved, before presenta-

tion’ to the Bureau of the Budget, by the Judicial

Conference of the United States, except that estimates

_with respect to the Court of Customs and Patent

Appeals, the Customs Court, and the Court of Claims .

shall be approved by such sous respectitely.

All such estimates shall be included in the budget.

without revision, but subject to the recommendations

of the Bureau of the Budget, as provided by section

11 of Title 31 for the estitnates of the Snpreme Court.”

§ 607. Practice of law prohibited = |

An officer or employee of the Administrative Office

shall not engage directly or indirectky in the practice

of law in any court of the United States. .:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.