Appendix — Fontaine v. United States

In the Supreme Court of the Qnited States

Octoper Term, 1972

No. 71-6757

Davip X. FontTAINE, PETITIONER,

v.

Unrrep States

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

INDEX

Relevant Docket Entries, United States District Court....... 1

Relevant Docket Entries, United States Court of Appeals ... 2

Transcript of Arraignment proceedings, November 13, 1969. . 3

Transcript of Sentencing proceedings, February 13, 1970... 7

Motion under 28 U.S.C. § 2255 to vacate and set aside judg-

ment of conviction, filed August 6,1971 ................ )

Brief of Law in Support of § 2255 Motion. .._—_—s-—s—........... 13

Exhibits to § 2255 Motion .__. 16

Motion to Dismiss motion to vacate sentence, filed October 6,

SS cn Eh # 22

Petitioner’s Traverse to Motion to Dismiss filed October 15,

SE oc xa-anl t 25

Opinion and Order Denying § 2255 Motion, December 7, 1971 30

Petitioner’s Assignments of Error on Appeal, filed January

RS TF GRAN peg tern eae ot 32

Court of Appeals Opinion and Order Affirming Judgment,

filed April 21, 1972 ....... : 34

Order Granting Writ of Certiorari, November 6, 1972 35

Date Filed

1971

Aug. 6

Aug. 6

Aug. 6

Oct. 6

Oct. 15

Dec. 7

Dec. 7

Dee. 21

Dee. 21

Dee. 21

Dec. 27

1972

Jan. 3

Reuevant Docket Entries

Unitep States District Court

Filings—Proceedings

Motion to vacate sentence with affidavit to

proceed in forma pauperis etc., filed.

Order granting petition to proceed in forma

pauperis, filed and entered.

Proof of mailing filed.

Govt’s motion to dismiss petitioner’s motion

to vacate sentence with proof of service, filed.

Petitioner’s traverse, filed.

Opinion and order denying motion to vacate

sentence, filed and entered.

Proof of mailing filed. _

Petitioner’s notice of appeal, filed.

Letter to attorneys re: appeal, filed.

Proof of mailing filed.

Order of CCA granting application for leave to

proceed in forma pauperis and denying peti-

tion for writ of mandamus, filed.

Petitioner’s pleading re: error and for designa-

tion on appeal, filed.

Date Filed

1972

Jan, 24

Jan. 31

Feb. 29

Feb. 29

Mar. 30

Mar. 30

Apr. 5

Apr. 13

Apr. 21

May 4

May 31

June 12

Rerevant Docket Entries

Unitrep States Court or APPEALS

FOR THE SrxtH Circuit

Filings—Proceedings

Certified record (1 vol. pleadings), filed; and

cause docketed.

Appearance of counsel for Appellant.

Four copies of Brief for Appellant, with proof

of service.

Four copies of Appendix.

Twenty-five copies of Brief and Appendix for

Appellee.

Proof of service of brief and appendix for

Appellee.

Case submitted on briefs without oral argument

(Weick, Edwards and Kent, JJ.).

Four copies of Reply Brief for Appellant

(Copies distributed to the Court).

Judgment of the District Court affirmed on

order without opinion (Weick, Edwards and

Kent, JJ.).

Motion of Appellant to stay the mandate and

send record to Supreme Court for certiorari

petition.

Order staying mandate thirty days (Weick, J.).

Letter from Office of the Solicitor General re-

questing that the entire certified record be

mailed to the Supreme Court (Supreme Court

No. 71-6757).

Unritep States District Court

FOR THE Hastern District or MtcHican

SouTHERN Division

5

Unitep States or AMERICA,

vs. > Cr. No. Arraignment

Davip FonTAINE

DEFENDANT.

Proceedings had in the above-entitled matter before Hon-

orable Fred W. Kaess, District Judge, at Detroit, Michigan,

on Thursday, November 13, 1969.

APPEARANCES:

JosEPH ZANGLIN, Esq.

(Assistant United States Attorney)

Appearing on behalf of the United States of

America

THe CLERK oF THE Court: The United States of America

vs David Fontaine.

Mr. Zanouin: Your Honor, this is an arraignment on an

information charging the defendant with armed bank

robbery. He’s been given a copy of the Information. He

acknowledges that he understands it and knows what the

maximum penalty is.

I have explained to him his right to an indictment by a

Grand Jury. He has waived that right and signed a waiver

of Rights Form.

He understands that he has a right to an attorney at

this time and he informs me that he wants to waive that

right and has signed a waiver of that right. Knowing all

of these rights he informs me that he intends to plead

guilty to the information.

Tue Court: You are Mr. David Fontaine?

Derenpant Fontarne: Yes, sir.

Tae Court: You have received a copy of the information

here, the charge here against you for armed bank robbery,

is that right?

3

STARR SSPREE STEN PTL LT

4

Derenpant Fontaine: Right.

Tue Court: The first thing of consequence is that you

have signed also a waiver of Grand Jury indictment which

means you are entitled to have this matter first submitted

to a Grand Jury and a determination made by that body

and an indictment returned first; do your understand that

and the rights you have thereunder? Anyway, that’s what

you will get if you wanted it to go to the Grand Jury.

Derenpant Fontaine: Yes.

Tue Court: You have signed a waiver of that right, am

I right?

DerenpDant Fontarne: Yes, sir.

Tre Court: In addition, you are entitled to be repre-

sented by an attorney and, if you are without funds with

which to employ an attorney, the Court will appoint one

for you. The Court has here before it a waiver of assign-

ment of an attorney. Is it your wish to proceed here with-

out an attorney?

Derenpant FontatneE: I guess so.

Tue Court: You have got to know so.

DeErenDANnT Fontarne: Yes, sir.

Tue Court: Are you aware of the maximum penalty in

this case? Not that you will get it because I don’t know

nor does anyone else what the penalty will be, but the

maximum penalty under your plea if you do plead, is 25

years and/or $10,000.00 fine; do you understand that?

Derenpant Fontarne: Yes, sir.

Tue Court: You understand the maximum penalty?

DEFENDANT FontaIneE: Yes, sir.

Tue Court: Knowing all these things, is it your wish

then that—are you prepared to plead now?

Derenpant Fontarne: Yes, sir.

Tue Court: How do you plead, sir.

Derenpant Fontarne: Guilty.

Tue Court: With respect to your plea of guilty did any-

one made any promise to you of any kind with respect to

this matter in order for you to offer your plea of guilty

here?

Derenpant Fontarne: No, sir.

Tue Court: No one has threatened you?

DerenpDant Fontaine: No, sir.

Te Court: Do you understand the nature of the charge?

Do you know what you are charged with? : ae

es

f 5

Derenpant Fontatne: Yes I know what I am charged

with.

Tae Court: What are you charged with?

Derenpant Fontaine: Bank robbery.

Tue Court: Armed

Derenpant Fontaine: Armed bank rohbery.

THE Court: On October 8th?

Derenpant Fontaine: Right. I don’t know too much

about the law because I have never been in Court before.

Tue Court: I just want to know that you know what

you are doing

Derenvant Fontarne: Yes, sir.

Tue Court: Is it your wish that the Court accept your

plea of guilty here to this offense of armed bank robbery?

Derenpant Fontarne: Yes, sir.

Tue Court: Did you actually do that?

DrrEeNDANT Fontaine: Yes, sir.

Tue Court: Did you actually attempt to rob a bank, or

did, I guess you did, of some $1,400.00?

Derenpvant Fontarne: Yes, sir.

Tue Court: Are you knowingly and freely and volun-

tarily offering your plea of guilty here?

Derenpant Fontarne: Yes, sir.

Tue Court: I want to be sure that you know what you

are doing. You are pleading guilty to armed bank robbery

occuring on October 8th of the Liberty State Bank in

Hamtramck.

Derenpant Fontarne: Yes, sir.

Tue Court: And by the use of a gun, pistol, right?

Derenpant Fontarne: Right.

Mr. Zancuin: Your Honor, I would suggest that the

Court ask the defendant to put on the record some of his

own statements concerning the specifies concerning this

crime.

THe Court: What did you do on October 8th?

Drrenpant Fonrtarne: I held the bank up.

THe Court: What?

Derenpant Fontarne: I held up the teller.

Tue Court: You held up a teller?

Derenpant Fontaine: Yes, sir.

Tue Court: Did you take from him some $1,400.00 plus?

Derenpant Fontarye: Yes, sir.

Tue Court: Any more?

Me. Zanoiis: Was anyone with you when you committed

this robbery?

Tue Covrt: He is charged with aiding and abetting

Gregory Edward Lee.

Mr. Zanoiiw: No, I think Edward Gregory Lee abetted

him.

Tue Cover: Aided and abetted by Edward Gregory Lee.

That’s the charge, do you understand that?

Derexvant Fortarye: Yes, sir.

Tue Covrt: Is it your wish that the Court accept your

pleat

Derexpant Fowtarxe: Well, your Honor I wish you

would accept my plea on the fact that I have never had a

past record. I got strung up on the drugs and I started to

make some money.

Tue Covet: The Court will accept your plea and refer

you to the Probation Department for a pre-sentence re-

port.

Mr. Zanouis: As to bond, we would re: »mmend a $20,-

000.00 cash or surety bond.

Tue Covrt: It may be so ordered.

Ustrrep States Disraicr Court

ror THE Easterns Distnicr or MicHican

Sovutnern Division

Unrrep States or AMEnica,

vs. Cr. No, 44433

Davip FonTANe DEFENDANT.

Proceedings had in the above-entitled matter before Hon-

orable Fred W. Kaess, District Judge, at Detroit, Michigan,

on Friday, February 13, 1970.

APPEARANCES:

HENRY MAHER, Esq,

(Assistant United States Attorney)

Appearing on behalf of the United States

of America

Detroit, Michigan

Friday, February 13, 1970

Cierx oy tHe Covert: Number 44433, United States of

America vs David Fontane.

Tue Cover: You are Mr. David Fontane, sir?

Derenpvant Fowtane: Yes, sir.

Tue Cover: At the time of your plea you waived the

appointment of counsel; is it your wish that you proceed

here through sentence without being represented by

counsel?

Derenvant Fontaine: Yes, sir.

Tue Covet: The maximum sentence in this matter is

twenty five years, as you well know. Is there anything you

wish to say prior to sentence being imposed upon you.

Derexpant Fontanxe: Yes, I would like to say I would

like to have the mercy of the Court.

Tue Cover: Pardon me.

Derewxpant Foxtaxe: 1 was under the influence of drugs

when this happened. I would like to have mercy from the

Court.

Tue Cover: This isn’t the time for your plea. How about

your habit now?

Derenpant Foxtaxe: Well, I have been in jail five

months.

Tue Cover: Have yout

Derexvant Foxtanxe: Yes, your Honor. I think I have

kicked it already.

Tue Cover: You did plead to the charge of armed bank

robbery.

Derenpant Fontane: Yes, sir.

Tue Covet: The Court takes all these things into con-

sideration.

It is the sentence of this Court that the defendant be

placed in the custody of the Attorney General for a period

of twenty years under the provisions of Title 18, Section

4208 (a) 2.

Are there any other counts on this?

Mz. Mauer: No, there aren’t, your Honor.

Ix THE Unitep States Disrzicr Court ror THE

Eastern Disteicr or Micnican

Soutnern Division

Davy X. Fowtatxz, movant,

vs. Cr. Case No. 44433

Unsirep States or America.

Ox Mortiow to Vacate axp Ser Asipe Jupcment or Con-

vVCTION AND Sentence 1s Crmminat Case No. 44433 Upon

tHe Grounps THAT aLL Proceepincs Heretorore ADsvuDI-

CATED 18 Sarp Caimiwar Cause ane Nuit axp Vom As InitI10

axD In Toto as 18 Attowep ann Avruonizep Unver Tir.e 28,

US.C., Secrion 2255.

MAY IT PLEASE THE COURT:

Movant herein, David Fontaine, in pro se, respectfully

moves the Court in the above styled manner and in support

thereof submits as follows:

STATEMENT OF THE CASE

On the night of October 21, 1969, movant was awakened

from a sound sleep by a loud crash and the frightened

screams of his wife and children. Movant noticed a man

strugling with his wife and leaped to her rescue. Movant

was thereupon clubbed into an unconscious state of mind.

Movant was being dragged from his home when he regained

consciousness. Movant, while dressed only in his under-

wear, was tossed into a police vehicle and taken to jail.

Movant subsequently learned that the police had, without

benefit of a search warrant or probable cause, had broken

into his home, clubbed him into an unconscious state and

hauled him off to jail, in his underwear, for the purpose

of interrogating him. After reaching the police station,

movant was handeuffed to a chair and interrogated about

several crimes the police said movant had either committed

or was involved in. Due to his physical and mental condi-

tion at the time of his interrogation movant does not re-

member very clearly what was said or what was asked of

him. His most vivid memory is that one of the interroga-

tion officers was named John Crookshank and that this

officer struck movant several times with his fist and open

10

hands while movant was handcuffed to the chair. Said

officer called movant ‘‘a nigger bastard’’ and promised to

beat him to death if he didn’t co-operate with the police.

Movant, while befuddled, groggy, and in mortal fear of his

life informed the police that he would say anything they

wanted him to say. At the time of the interrogation movant

began to bleed rather freely from a gunshotwound he had

received a few days prior to his arrest and for which he

had been bedridden at the time of his arrest. The brutal

treatment administered to him by the arresting officers had

torn open the wound which had been healing. Movant

blacked out a couple of times during the interrogation

but was revived by the police in order that he might answer

their questions concerning several crimes they claimed

movant had either committed or knew about. Movant, in

mortal fear of the officers and suffering from severe pain

asked that he be allowed to see a doctor and get some

rest. Movant was told by the police that they might let

him see a doctor if he co-operated with them and answered

their questions but if he didn’t co-operate he wasn’t going

to get anything but a bashed in head. Movant asked if he

could call an attorney before being asked any more ques-

tions and was slapped in the face by detective Crookshank

who informed movant that he was tired of all the stalling

and if movant didn’t start talking that he (detective Crook-

shank) was going to ‘‘bash his fuckin’ head’’ with a billy

club. While in mortal fear that his life was in danger of

being forfeited, movant pleaded with the interrogating

officers not to kill him and stated that he’d tell them any-

thing he knew and would do whatever they asked of him.

Thereafter said interrogating officers told movant that he

had committed numerous crimes and, how he had committed

them. Movant, not wanting to antagonize said officers agreed

to anything they asked of him and signed several] papers

presented to him for his signature. Thereafter movant

lost consciousness and when he regained his wits he was

being admitted at the Detroit General Hospital. The ad-

mission sheets at said hospital reflects that movant was

suffering from Heroin addiction, serum hepatitis, gunshot

wound in right abdomen, hematoma of the right flank and

a convulsive disorder. While in the hospital movant was

interviewed and interrogated by state and federal police

relative to the crimes and the alleged confessions movant

11

had made on the night of his arrest. Movant, while ill and

mentally disturbed let the police intimidate and coerce him

into an agreement to enter a plea of guilty to armed bank

robbery. Movant was told that if he did not enter a plea of

guilty to the bank robbery charge in federal court that he

would be prosecuted in state court and sentenced to life

imprisonment. Due to his severe illnesses and mental prob-

lems movant allowed the police to convince him that he was a

bona fide bank robber and that unless he entered a plea of

guilty in federal Court that he would have to stay in the

Michigan State Prison for the remainder of his life. Movant

was told that he and another man had robbed a teller at

the Liberty State Bank in Hamtramack, Michigan of

$1,400. Movant, while mentally ill and not in control of his

faculties permitted the police to intimidate and coerce him

into an agreement to enter a plea of guilty to the robbery

of said bank ... A crime of which movant possesses no

knowledge of having ever committed, and a crime to which

he was coerced into saying he had committed.

Movant submits that he has a severe mental problem and

and that he suffers from epilepsy and a mental trauma of

major proportions due to his having been shot in the head

by the police when he was a teenager. Movant’s fear of

the police is such a strong psychological force it motivates

his every reaction and destroys his will to resist their

desires or commands. Movant holds a constant fear that

the police will kill him if he does not obey their every whim

or desire and it was this traumatic condition which moti-

vated movant’s mental apparatus when he allowed the

police to coerce and intimidate him into entering a plea of

guilty to a bank robbery. A crime movant did not commit.

Movant submits that following his arrest and arraign-

ment upon the bauk robbery charge that he was never before

a U.S. Commissioner nor had the advice of counsel at any

stage of the proceedings had.

Movant submits that he was beaten by the police for ask-

ing if he could talk to an attorney before being interrogated.

Movant submits that the police had conditioned his mind

for the proceedings in Court and that he did not understand

the consequences of his Constitutional waivers of counsel,

Grand Jury and plea of guilty.

Movant submits that he is uneducated (7th grade). That

12

the legal terms used by the Court were complete jargon to

movant and beyond his sphere of comprehension.

Movant submits that he was mentally ill at the time of his

arraignment and that his plea of guilty and waiver of

Constitutional safeguards was a product of his mental

illness.

MOTION NOW MADE

Movant prays that this Honorable Court take judicial

cognizance of the exhibits and brief of law annexed hereto

and made a part of this proceedings and if not convinced

that sufficient grounds exist for nullification of the Consti-

tutional waivers entered in this cause that a plenary

hearing be ordered whereby movant will be accorded an

opportunity to present evidence and testimony in his behalf;

that upon conclusion of such hearing that the Court make a

finding of fact and a conclusion of law therefrom; that the

judgment of conviction and sentence heretofore imposed

in this cause be declared null and void ab initio and in toto.

It is so prayed.

Respectfully submitted

Re err , 1971.

David X. Fontaine

Movant Pro se

Box P.M.B.

Atlanta, Ga. 30315

AFFIDAVIT

I, David X Fontaine, being duly affirmed and under oath,

depose and affirm that the allegations of fact set forth in

the foregoing motion are truee in all respects.

David X Fontaine

Affiant-Movant

Subscribed and affirmed to before me this 20 day of July,

1971.

Charles C. Moore

Notary Public

8S Ga Ge oh eee em ae a mc

BRIEF OF LAW

I

Movant submits that a plea of guilty is more than a con-

fession which admits that an accused did various acts; it is

itself a conviction; nothing remains but to give judgment

and determine punishment. KERCHERAL V. UNITED

STATES, 274 U.S. 220.

II

The admissibility of a confession must be based on a

reliable determination of the voluntariness of issues which

satisfies the Constitutional rights of a defendant. JACK-

SON V. DENNO, 378 U.S. 368.

Ill

The question of an effective waiver of Federal Consti-

tutional right in a proceeding is governed by federal

standards. CARNLEY V. COCHRAN, 369 U.S. 506.

IV

Several federal Constitutional rights are involved in a

waiver that takes place when a plea of guilty is entered:

first is the privilege granted against compulsory self-in-

crimination guaranteed by the Fifth Amendment, U.S.

Constitution; second is right to trial by jury; third is right

to confront one’s accusers; fourth is the right to indictment

by a Grand Jury; and fifth is the right to competent coun-

sel; a waiver of these five important federal rights cannot

be presumed from a silent record. SMITH V. UNITED

STATES, 360 U.S. 1; BOYKIN V. ALABAMA, 395 US.

238.

ARGUMENT

Movant submits that the arraignment proceedings had in

this cause is of no force and effect when reviewed in their

proper light. Movant had long been brainwashed, coerced

and intimidated into entering his guilty plea before he was

arraigned. The in Court formalities conducted by the Court

13

14

and Government counsel did not go behind the scene on a

search for truth and in failing to do so may have provided

a record technically legal upon its face but when said record

is perused in the light of the truth such record becom<s a

mockery of justice.

The admissibility of a confession or a guilty plea induced

from a confession obtained under physical and mental

duress must be based on a ‘‘reliable determination of its

voluntary aspects’’. JACKSON V. DENNO, 378 U.S. 368,

387, 84 S.Ct. 1774, 1786, 12 L.Ed. 2d 908.

In MCCARTHY V. UNITED STATES, 394 U.S. 459

the Supreme Court held that Rule 11, Fed. R.C.P. was de-

signed to assist trial judges in making the Constitutionally

required determination that a defendant’s guilty plea is

truly voluntary. See, eg. MACHIBRODA V. UNITED

STATES, 368 U.S. 487 (1962); VON MOLTKE JV.

GILLIES, 332 U.S. 708 (1948); WALEY V. JOHNSON,

316 U.S. 101; WALKER V. JOHNSON, 312 U.S. 275;

JOHNSON V. ZERBST, 304 U.S. 458; ef. SUNAL V.

LARGE, 332 U.S. 174.

In Von Moltke, supra, the Court held:

‘‘A waiver of the Constitutional right to the assistance

of counsel is of no less moment to an accused who must

decide whether to plead guilty than to an accused who

stands trial.”’. . . See WILLIAMS V. KAISER, 323

U.S. 471, 475.

In the case at bar Movant’s plea of guilty and conviction

based thereon is the product of fear, coercion and mental

illness.

In BISHOP V. UNITED STATES, 350 U.S. 961, the

Court held that the conviction of a legally incompetent de-

fendant violates due process.

In PATE V. ROBINSON, 383 U.S. 375, the Court again

held that the fundamental concepts of due process are

abused where the mentally ill are criminally prosecuted.

CONCLUSION

Movant submits that due process of law is sorely abused

where, as in the case at bar, the police, acting without bene-

fit of warrant or probable cause, smash in the doors of a

citizens home in the dead of night and brutally assaults

such citizen and his wife, then drags such citizen off to jail

in his underwear, cuffs him to a chair, beats him with clubs,

blackjacks, kicks him, and tells him that unless he ‘‘co-

operates’’ that his head will be bashed in, denies such citizen

access to legal counsel .. .

Such tactics used to obtain confessions and criminal ad-

missions are supposedly prohibited in a civilized nation

but the conviction dealt with herein was obtained in the

foregoing manner should be reversed.

Respectfully submitted

eee 8 Sete , 1971.

David X. Fontaine

Movant Pro se

Exhibits to Motion Under § 2255

City or Derroir

JEROME P. CAVANAGH, Mayor

DEPARTMENT OF HEALTH

DETROIT GENERAL HOSPITAL

Detroit, Micuican 48226

DISCHARGE SUMMARY

NAME: David Fontaine

CASE NO.: 686365

SERVICE: Medicine, Ward 6-3

ADMITTED: 12/17/69

DISCHARGED: 1/6/70

FINAL DIAGNOSIS: Heroin addiction.

Serum hepatitis.

Old gunshot wound, right

abdomen.

Convulsive disorder.

SECONDARY DIAGNOSIS: Rule out hematoma, right

flank.

CHIEF COMPLAINT AND PRESENT ILLNESS: The

patient is a 26-year-old negro male who is a prisoner and

known heroin addict for the last two years. He came to the

hospital because the patient was complaining of dark urine,

yellowness in the eyes, anorexia, epigastric discomfort,

nausea and vomiting approximately one week prior to

admission. The patient has been in the jail for approxi-

mately 14 months and during this period he didn’t receive

any heroin. Two months prior to admission the patient had

a gunshot wound penetrating through the abdominal wall

in the right upper quadrant. He has been complaining of

right flank pain since then. Past history revealed a gunshot

wound in the head in 1962, Since then he continued to have

persistent headache and episodes of seizures. The patient

was placed on Dilantin and Phenobarbital since then. Three

to four days before admission the patient started having

16

dysuria, supra-pubic tenderness and fever with no chills,

and also started having right flank pain.

PHYSICAL EXAMINATION: On admission showed a

well-developed, well-nourished negro male, not in distress.

Blood pressure 120/75, pulse 80 per minute. HEENT—

pupils equal, regular, react to light; fundi within normal

limits. Sclerae were icteric. Neck supple; no jugular vein

distention. Thyroid not enlarged. Mouth showed gunshot

wound hole in the superior palate. There was a scar in the

right forehead. Chest—lungs clear to percussion and aus-

cultation, Heart—normal sinus rhythm with no murmur.

Abdomen was soft. There was a penetrating gunshot wound

through the abdominal wall in the right upper quadrant.

There was a fullness and tenderness in the right costoverte-

bral angle. Also some tenderness in the supra-pubic area.

Bowel sounds present. Liver, spleen and kidneys were not

palpable. Extremities—there was no edema; all peripheral

pulses were intact. Neurological examination showed no

neurological deficit.

LABORATORY STUDIES: On admission, WBC 6,500,

hemoglobin 14 grams %. Reticulocyte count 3.5%. Urinaly-

sis—trace protein, sugar negative, WBC 8 to 16 per high

powered fielui. Alkaline phosphatase less than 4% B. units.

LDH 8,750, transaminase SGOT 786, urine culture showed

few alpha strep and few staph epidermitis. Colony count

less than 1,000. Subsequent urine culture showed no growth.

Prothrombin time patient 13.8, control 12.6. Bilirubin was

less than 1.2. Initial bilirubin total was 13.4. Bilirubin on

1/5/70, one day before discharge, was 1.4. Electrolytes—

sodium 130 mEKq/liter, potassium 4 mEq/liter, chloride 94,

CO2 24.7. Repeated determination of the enzyme alkaline

phosphatase, LDH and SGOT showed progressive lowering

in the serum level. Finally the enzymes returned to normal

on the day of discharge. Chest x-ray was normal. X-ray of

the abdomen was normal. I.V.P. was normal.

HOSPITAL COURSE: The patient during his hospital

course showed a smooth recovery and progressive improve-

ment in his general condition. Serial determination of the

bilirubin and the enzymes showing progressive lowering in

the levels. Finally bilirubin and enzymes SGOT, LDH and

alkaline phosphatase became normal before discharge. The

a rag IRE MIO AN TY

patient has been placed on a course of Ampicillin for

urinary tract infection. Finally, patient was discharged in

satisfactory condition to be followed in the Medical Clinic.

Discharge medications were Multi-vitamins, Dilantin and

Phenobarbital for convulsive disorder.

M. M. Au-Raw1, M.D.

W/0/#8

3/3/70

Crry or Derrorr

JEROME P. CAVANAGH, Mayor

DEPARTMENT OF HEALTH

DETROIT GENERAL HOSPITAL

CENTRAL BRANCH

Derrorr, Micnican 48226

DISCHARGE SUMMARY

ADMITTED: 10/21/69

DISCHARGED: 10/26/69

NAME: FONTAINE, David

CASE NO. 686365

SERVICE: Surgical ITI

FINAL DIAGNOSIS: Hematoma, right lumbar

region abdominal wall.

SECONDARY DIAGNOSIS: Two-week-old gunshot

wound, abdominal wall.

OPERATIONS PERFORMED: None.

Patient was admitted with a history of pain, right lumbar

region with superficial swelling in abdominal wall of two

weeks duration. Two weeks ago he had a gunshot wound of

abdominal wall after which he developed this painful super-

ficial swelling in the right lumbar region which has not been

increasing in size, but the pain has been persistently there.

When he came to the Emergency while he had the gunshot

wound. At that time (there was) X-ray of the abdomen did

not reveal any gas in the abdomen except that there was a

small and superficial dense shadow in the right lumbar

regional abdominal wall.

PHYSICAL EXAMINATION: Patient does have a very

superficial swelling in the abdominal wall in the right

lumbar region which is tender, not fluctuant, and extends

around the area about 2 inches in diameter around the

wound of exit. There is no organomegaly or there is no

other tender spot in the abdomen. The rest of system ex-

amination of the patient is insignificant and is absolutely

normal.

Urinalysis of the patient: Patient does have 3 to 4 RBC’s

in urine and otherwise the urine is normal. The IVP is

normal and patient was put on antibiotics of Procaine Peni-

cillin, 600,000 b.i.d. and Streptomycin, 1 gm. per day for

about 5 days and a needle exploration of the area was done

under aseptic precautions to find out whether there was any

pus in that small superficial swelling. It was negative.

Patient is being discharged in good condition to be fol-

lowed later on in the Clinic.

M. Gursahani, M.D.

10/28/69

w.o./#12

UNIVERSITY HOSPITAL

1200 West Leonard St.

Pensacola, Florida 32501

(904) 432-7632

January 22, 1971

James Ron Shelley

Public Defender

210 8. Palafox St.

Pensacola, Florida 32501

Re: Hubert Fountain, Jr.—Our file #41995

Dear Sir:

The records on the above mentioned person have been

microfilmed, therefore, we will have to give you the infor-

mation you need in the form of a letter.

He was in our hospital from 11/10/62 to 11/24/62 under

the care of Dr. Tippins. Drs. Wolf and Rodewald did the

actual surgery. The final Diagnosis was gun shot wound

of head, also, 1. Fracture of right cranial bone and maxilla.

2. Fracture of floor of right frontal sinus. 3. Foreign body

in right frontal sinus. 4. Depressed skull fracture right

frontal area. He was discharged as improved, with a

prognosis of good.

Operation: 1. Tracheotomy. 2. Removal of foreign bodies

from right frontal sinus. 3. Elevation of deparesed fracture

of right frontal sinus. The operative report shows that the

gunshot wound entered the head at floor of the mouth and

traveled through tongue, roof of mouth, nasal bones and

nose and was lodged in frontal sinus.

Past History: Never been hospitalized before.

Present History: This patient was brought to Emergency

Room after being shot by Police when trying to avoid arrest.

Hoping this is satisfactory, I am,

Yours truly,

Maus. J. Lerner

Medical Records

ee

Unrrep States Distaict Court

Easterns Disraict or Micnican

SovutrHuern Drvision

) CIVIL NO.

Daviw X. FonTane, PETITIONER, morrerro

pr + DISMISS

Usrrep States or AMERICA, RESPONDENT. ny ACATE r

SENTENCE

NOW COMES the United States of America by and

through its attorneys Ralph B. Guy, Jr., United States

Attorney, and Michael D. Gladstone, Assistant United

States Attorney, both for the Eastern District of Michigan,

and respectfully states as follows:

FACTS

Petitioner, David Fontane was charged in a one count

Indictment with having been aided and abetted by one

Gregory Edward Lee in the armed robbery of the Libert

State Bank in violation of 18 U.S.C. §2113(d).

Subsequently, on November 13, 1969, petitioner was ar-

raigned and at this proceeding pled guilty to the indictment.

Consequently, petitioner was sentenced to be placed in the

custody of the Attorney General for a period of Twenty

years under the provisions of 18 U.S.C. §4208(a)2.

Petitioner’s motion to vacate is essentially based on the

claims that he was mentally incompetent to plea and that

his plea was involuntary.

1. Petitioner was not mentally incompetant when he

waived counsel and pleaded guilty.

Petitioner was specifically asked whether he desired court

appointed counsel and answered that he wished to proceed

without the assistance of counsel. Petitioner alleges that

due to a gunshot wound seven years previously this waiver

is void as is his plea of guilty.

22

During the entire arraignment the petitioner failed to

mention or even infer any facts pertaining to his mental

condition, past medical history, or drug addiction. He did

respond to each question asked by the court and admitted

he knew what he was doing.

The Hayes case requires from a petitioner specific facts

regarding the alleged prior mental history or incidents of

aberration to-support the conclusory allegations. Hayes v.

United States, 399 F.2d 691 (5th Cir., 1968); See also

Dranow v. United States, 407 F.2d 47 (8th Cir., 1969);

Sanchez v. United States, 401 F.2d 771 (2nd Cir., 1968).

A similar fact situation occurred in Edwards v. United

States, 422 F.2d 788 (7th Cir., 1970). There the defendant,

Edwards, after waiving counsel added, ‘‘but I would like

to talk to somebody that has some maybe psychiatric train-

ing. ..’’ . The court was thereby alerted to this possible

defense, and upon further questioning and observation of

Edwards decided he was competant to plea.

In this case there is no warning given or incidents of

prior aberration nor evidence of medical treatment by a

psychiatrist. The medical report from University Hospita!

states no damage to petitioner’s brain and a good prognosis

after surgery.

It is respondent’s position that petitioner has not borne

his burden under the Hayes case.

II. Petitioner’s plea of guilty was not involuntary.

This claim by petitioner is completely unsupported by

the facts alleged. Petitioner covers three pages with un-

substantiated claims of coercion and maltreatment at the

hands of the Detroit Police.

But a month after the above confrontation, when he was

before the Federal judge not one word was uttered to the

presiding judge of any abuse but instead petitioner affirma-

tively states that there had been no promises made nor had

he been threatened.

The case of Spears v. United States, 250 F.Supp. 698

(S.D. W. Va. 1966) at page 701 presents the same issue as

in this case: who is telling the truth. The Court cited the

following rule: ‘‘The burden of proof resting upon him and

the rules of credibility applying’’.

a

24

It is the government’s position that again the burden

borne by petitioner has not been satisfied.

Finally, respondent asserts that the requirements of Rule

11, Federal Rules of Criminal Procedure as adjudicated in

McCarthy v. United States, 394 U.S. 459 (1969) were satis-

fied by the District Court. Petitioner admitted he under-

stood the nature of the crime and the consequence of his

plea on the record.

The petitioner would now two years later have this Court

vacate his sentence upon the following record: petitioner

voluntarily waived his rights; he asserted his guilt and

requested mercy; he briefly described the commission of

the crime; remained silent during the arraignment as to

any alleged coercion or incompetancy; and declined his

right of allocution.

If petitioner were to prevail upon this record then guilty

pleas would be a farce and a means whereby an incarcerated

felon could obtain a new trial after witnesses were wither

dead or unlocatable, memories have faded, and evidence lost

or destroyed.

CONCLUSION

It is respectfully prayed that in view of the foregoing this

Court will deny and dismiss petitioner’s Motion to Vacate

Sentence.

Respectfully submitted,

Raupex B. Guy, Jr.

United States Attorney

Micuazt D. Giapstone

Assistant U. 8. Attorney

Dated: October 6, 1971

Untitrep States Districr Court

Eastern District or MICHIGAN

Sovutuern Drvision

Davin X. Fontaine, PETITIONER,

RE: Civil No.

eg C 36898

Unirep States or AMERICA, RESPONDENT.

TRAVERSE

Comes now, David X. Fontaine, the petitioner herein, and

respectfully submits this Traverse in reply to the respond-

ent’s affidavit in opposition (dated Oct. 6, ’71, received by

petitioner Oct. 10, ’71) to petitioner’s motion for Sec. 2255

relief in Cr. No. 44433, forwarded to this Honorable Court,

dated July 20, ’71.

For the purpose of the record, petitioner asks the Court

to take note that contrary to respondent’s assertion under

‘“‘Facts’’ that petitioner pleaded guilty to an indictment,

that such assertion is contradicted by the record, to-wit:

(pg. 2, Plea Transcript, Nov. 13, 1969) :

Tue Cover: You have received a copy of the ‘‘informa-

tion’’ here, the charge here against you for armed bank

robbery, is that right? (Emphasis mine).

DEFENDANT

Fontaine: Right.

Further examination of said page 2, will show petitioner

‘twaived Grand Jury Indictment.’’

Petitioner could not competently or intelligently waive

his right to counsel since petitioner was never advised by

the Court of his right to a jury trial and to be confronted by

the witnesses against him; under the circumstances, peti-

tioner felt that the only function that would be required of

counsel, would be to stand beside petitioner while petitioner

plead guilty.

That petitioner was never advised of his trial and con-

frontation rights whereby he could understand the meaning-

fullness of representation by counsel, is clearly shown by

the lack of advice to him in these matters, to-wit: (pgs. 2-3,

Plea Transcript, supra) :

Tue Court: The first thing of consequence is that you

Ceca aoa...

a. Se

have signed (sic) also a waiver of Grand Jury indictment

which means you are entitled to have this matter first sub-

mitted to a Grand Jury and a determination made by that

body and an indictment returned first; do you understand

that and the rights you have thereunder? Anyway, that’s

what you will get if you wanted it to go to the Grand Jury.

DerenDANT

Fontaine: Yes.

Tue Cover: You have signed a waiver of that right, am

I right?

DereNDANT

Fontaine: Yes, Sir.

The dialogue between the Court and petitioner clearly

shows the latter was not given any understanding by the

former as to just what such a waiver encompassed. The

failure of the Court to inform petitioner of his basic rights

(of trial by jury and confrontation of witnesses) when tak-

ing a guilty plea pursuant to Rule 11, Fed. Rules of Crim.

Proc., is patently in violation of the mandate under Mc-

Carthy v. United States, 394 U.S. 459, and ‘‘automatic

prejudice’’ ensues.

The Court continued its dialogue with petitioner in the

following manner (pg. 3, supra) :

Tue Covet: In addition, you are entitled to be repre-

sented by an attorney and, if you are without funds with

which to employ an attorney, the Court will appoint one

for you. The Court has here before it a waiver of assign-

ment of an attorney. Is it your wish to proceed here with-

out an attorney?

DEFENDANT

Fontaine: I guess so.

Tue Court: You have got to know so.

DEFENDANT

Fonrtarne: Yes, Sir.

The irony of the whole proceedings aforerecited, is that

petitioner was given a handful of ‘‘waivers’’ to sign BE-

FORE the Court made any attempt to advise him in any

manner. Thus, as far as petitioner was aware, such waivers

were binding on him and any further proceedings were

mere formality, especially where, as here in his instant

case, no effort was made to inform him that such waivers

were not binding if he desired counsel (or trial by jury for

that matter).

27

There is nothing in the record to indicate petitioner’s

waivers of basic constitutional rights to trial, counsel and

confrontation were competently or intelligently taken, and

it is axiomatic under American Jurisprudence that for

waiver of constitutional rights to be effective, it must

clearly he established that there was ‘‘an intentional re-

linquishment or abandonment of a known right or privi-

lege.’’ See, Johnson v. Zerbst, 304 U.S. 458 (1938) ; Brook-

hart v. Janis, 384 U.S. 1, 86 S.Ct. 1245 (1966). The waiver

must be intelligent and competent. See, Cross v. United

States, 325 F.2d 629 (D.C. Cir., 1963).

The respondent claims that :

‘*In this case there is no warning given or incidents of

prior aberration * * *’’

Yet, when we examine page 6, of the Plea Transcript, we

find when petitioner tended to explain his circumstances,

he stated :

**T got strong up on drugs * * *”’

There should be no argument that a person addicted to

drugs is mentally and physically ill and is unable to func-

tion in the ‘‘norm.’’ Such statement of addiction on peti-

tioner’s part was sufficient warning to the Court that peti-

tioner’s mental capabilities might well have been impaired,

causing him to incompetently waive basic rights and plead

guilty to a charge of a 25 year maximum (which the Court

readily gave him 20 years of).

Respondent further claims the requirements of Rule 11,

supra, as adjudicated in McCarthy, supra, were satisfied;

Respondent stating: (quote)——

‘*Petitioner admitted he understood the nature of the

crime and the consequences of his plea on the records.’’

(unquote)

In view of respondent’s assertion, it is necessary to ex-

amine the record and see whether petitioner was even ad-

vised of the ‘‘nature’’ of the crime, much-less understand

it. Hence, we move to page 4, of the Plea Transcript and

examine the following dialogue between the Court and peti-

tioner dealing with the ‘‘nature of the charge’’ issue:

(quote)——

Tue Court: Do you understand the nature of the charge?

Do you know what you are charged with?

DEFENDANT

Fontaine: Yes, I know what I am charged with.

Tue Court: What are you charged with?

DEFENDANT

Fontaine: Bank robbery.

Tue Court: Armed.

DEFENDANT

Fontaine: Armed Bank robbery.

Tue Court: On October 8th.

DEFENDANT

Fontarne: Right. I don’t know too much about the lav

because I have never been in Court before.

Tue Court: I just what to know that you know what yo'

are doing.

(end of quote)

The gravamen of the offense charged in the informatio’

was that petitioner robbed the Liberty State Bank, 930

Joseph Campau, Hamtramack, Michigan, ‘‘the deposits o

which were then insured by the Federal Deposit Insuranc

Corporation.’’

Since United States District Courts have no common la\

jurisdiction in criminal cases, See: Section 3231, Title 18

U.S.C.A.; Jerome v. United States, 318 U.S. 101, at 106, 107

United States v. Hudson, 7 Cranch (11 U.S.) 32, 3 L.Kc

259, and United States v. Coolidge, 1 Wheat. (14 U.S.) 41%

4 L.Ed. 124, the ‘‘nature’’ of the charge in petitioner’s in

stant case was not ‘‘armed bank robbery,’’ for it is a

essential element of an offense under Section 2113, Title 1§

U.S.C.A., that the institution robbed be a ‘‘bank’’ as define:

in Section 2113 (f). King v. United States, 426 F.2d 27:

(1970), and the term ‘‘bank’’ as applied in Section 2113 (a

is defined in subsection (f) of Section 2113, to include (1

any member bank of the Federal Reserve System, (2) an:

bank operating under the laws of the United States, an

(3) any bank the deposits of which are insured by th

Federal Insurance Corporation. See: Schoepflin v. Unite

States, 391 F.2d 390, 396, note 5 (1968).

At no time, during the pleadings or sentencing proceed

ings against petitioner, did the Court define the bank it

question as being F.D.I.C. insured, nor at any time durin;

said proceedings was any ‘‘Organization Certificate’’ pro

duced, and the lack of such certificate shows a lack of juris

diction on the part of the Court to accept a guilty plea t

29

what may not have even been a federal offense, especially

where, as here, no judicial notice was taken by the Court as :

to the ‘‘National Character’’ of the bank im question. Com-

pare: King v. United States, supra.

The ‘‘Organization Certificate’’ goes to the factual basis

as well as the jurisdictional basis of whether the offense in

question was of a federal nature.

Petitioner respectfully submits, that the bank in ques-

tion in his instant case did not have a charter number at the

time of the alleged robbery, and did not have any as of

September 13, 1971, when upon petitioner’s request for

same made to the Federal Deposit Insurance Corporation,

a search for such Corporation’s records showed NO CH AR-

TER (ORGANIZATION CERTIFICATE) for the bank

in question—The Liberty State Bank.

Petitioner can produce documentary proof to such effect,

plus additional proof that F.D.I.C. does not insure against

robberies; such insurance being provided by ‘‘ private in-

surance companies.’’

Under the circumstances of this instant case, petitioner’s

guilty plea was nothing more than a farce, devoid of due

process and Rule 11 safeguards as adjudicated in Mc-

Carthy, supra, and petitioner is entitled to McCarthy

relief.

In view of the foregoing, petitioner respectfully prays

that the Honorable Court grant the Motion to Vacate.

Respectfully submitted,

Davip X. Fontaine 27801

Petitioner, pro se

Unttrep Srates District Court

Eastern District or MIcHIGAN

SoutHerN Drviston

Civil No. 36898

OPINION AND ORDER DENYING

MOTION TO VACATE SENTENCE

At a session of said court held in the Federal Building

in the City of Detroit, Michigan, on the 7th day of Decem-

ber, 1971.

Present: The Honorable FRED W. KAKESS, United

States District Judge.

The court has before it a motion to vacate sentence filed

by David X. Fontaine, an inmate of the United States peni-

tentiary at Atlanta, Georgia. At his arraignment the peti-

tioner pleaded guilty to having been aided and abetted by

another in the armed robbery of a bank in violation of

Title 18, U.S.C., § 2113(d). As a result, he was sentenced

to a term of twenty years in the custory of the Attorney

General, pursuant to the provisions of Title 18, U.S.C.,

§ 4208 (a) 2.

In challenging the validity of his conviction the Petitioner

alleges that he was mentally incompetent to plead and that

his plea was thus involuntary. The respondent has answered

the petition by filing a motion to dismiss.

The petitioner specifically alleges that his plea was the

product of fear, mental illness, drug addiction, and coercive

police tactics. In addition he contends that he failed to

understand the consequences of waiving counsel and plead-

ing guilty. A review of the entire record, however, fails to

substantiate these claims. Each time the court offered peti-

tioner the assistance of counsel prior to acceptance of his

plea, such offer was declined. It is apparent from the record

that petitioner was interrogated on the question of the vol-

untariness of his plea, that he understood his right to a

Grand Jury indictment, that he understood the nature of

the charge against him, that no promises were made to him,

and that he understood the maximum penalty he could

receive. As such, the court clearly conformed to the re-

30

a ————————

quirements of Rule 11 of the Federal Rules of Criminal

Procedure, as dictated by McCarthy v. United States, 394

U.S. 459 (1969), in accepting petitioner’s plea as voluntary.

When the trial court has so questioned the accused about

pleading guilty, the petitioner cannot now be heard to col-

laterally attack the record and deny what was said in open

court. United States v. Davis, 319 F.2d 482 (C.A. 6, 1963) ;

United States v. Orlando, 327 F.2d 185 (C.A. 6, 1964), cert.

denied 379 U.S. 825. Decisions of the United States Su-

preme Court also reflect this rule. See Brady v. United

States, 397 U.S. 742 (1970); McMann v. Richardson, 397

U.S. 759 (1970). Therefore, petitioner’s instant claims are

without merit and do not warrant relief.

In view of the foregoing, IT IS ORDERED that the

motion to vacate sentence be and the same is hereby

DENIED.

Frep N. Karss

United States District Judge

Unrrep States District Court

Eastern District or MICHIGAN

SoutrHern Division

CIVIL No. 36898

TO: CLERK OF COURT:

Comes now David X. Fontaine, in per se, and assigns as

error pursuant to Notice of Appeal heretofore filed in this

Court from the order of Hon. Fred W. Kaess entered on

December 8, 1971, denying Motion to Vacate Conviction

pursuant to Title 28 U.S.C. § 2255.

ERROR (ONE)

That the trial Court erred in its arbitrary and capricious

denial of fundamental issues of law set forth in defendant-

appellant’s motion de hors the record.

The contention of the Court that .. . ‘‘A review of the

entire record, however, fails to substantiate these claims

99

Trial Courts may not resort to now existent records to

deny material questions of law submitted de hors the

records.

In the case sub judice the Trial Court argues that a

mentally incompetent is capable of understanding the na-

ture of his charge and all of the intricate legal ramifications

surrounding the taking of waivers of Constitutional rights

to indictment, counsel, and what constitutes a valid plea of

guilty.

The official medical records submitted with defendant-

appellant’s motion to Vacate clearly and fordefully presents

a prima facie cause of action which required the Court to

grant a plenary hearing, accord petitioner an opportunity

to sustain the burden of proof required to substantiate the

material allegations set forth in his motion.

If the contentions of the Court are to be sustained there

is no remedy available whereby a mentally ill defendant

may collaterally attack an illegal conviction.

ERROR (TWO)

The Court erred in its failure to accord defendant-Appel-

lant an opportunity to be fully and properly heard upon

material infringements of constitutional rights which tran-

32

sc

spired outside the presence of the Court and the Court

reporter. This plain error and impermissable as a matter

of law.

RECORDS DESIGNATED ON APPEAL

- Transcript of Arraignment and Sentence.

- Motion to Vacate Pursuant to Title 28 U.S.C. Section

2255.

Governments Motion To Dismiss.

. Petitioner’s Traverse.

- Order of Court Denying Motion to Vacate.

. Notice of Appeal.

. Assignment of Errors.

. Designation of Records.

. All Court Minutes.

. Pre-Sentence Report.

- All Medical Records Made exhibits with Motion to

Vacate under 28 U.S.C. § 2255.

ROO DOND OP ROM

— he

Done this 28th day of Dee., 1971.

/s/ Davi X. Fonvatne 27801-138

Appellant-Defendant

Box P.M.B.

Atlanta, Ga. 30315

Davw X. Fowrarws,

Petitioner-Appellant

Unsrrep States or Amenica,

Respondent-Appellee

No. 72-1060

Usrrep States Cover or Arrzars

vor tus Stuxra Cracurr

’

» ORDER

Before WEICK, EDWARDS and KENT, Circuit Judges.

Upon consideration of the appeal, it appearing to the

Court that in accepting appellant’s plea of guilty to the

information charging him with armed bank robbery the

District Court fully complied with Rule 11, Fed.R.Crim.P.,

and determined that his plea was wholly voluntary, that his

plea was not made as a result of any threats, and that he

was not under the influence of drugs at the time,

It is therefore ORDERED that the judgment of the Dis-

trict Court be and it is hereby affirmed.

ENTERED BY ORDER OF THE COURT.

James A. Hicorns

Clerk

Supreme Cover or tux Unirep Srares

No. 71-6757

Daviw X. Fowrarne,

PETITIONER,

v.

Usrrep Srates

On petition for writ of Certiorari to the United States

eosccces Court of Appeals for the Sixth ........ Cireuit.

On consideration of the motion for leave to proceed herein

in forma pauperis and of the petition for writ of certiorari,

it is ordered by this Court that the motion to proceed in

forma pauperis be, and the same is hereby, granted; and

that the pe‘ition for writ of certiorari be, and the same is

hereby, granted.

Novemser 6, 1972

t U.S. Government Printing Office: 1972~489-457/227

35