# Appendix — Fontaine v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1571%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 411 U.S. 213 ## Text 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