YANKWICH, District Judge.
On January 25, 1956, the Grand Jury for the United States District Court in and for the District of Idaho, Central Division, presented an Indictment against the appellant, James Henry Audett, charging him in Count I with attempting to enter and entering the First National Bank of Cottonwood, Cottonwood, 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.
On April 2, 1956, the appellant, appearing in court with one of his counsel, Dean E. Miller, was arraigned and entered his plea of not guilty. A 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 both 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 is on appeal from the Judgment.
The Right To Counsel
The most fundamental issue raised in this case is that of improper representation by counsel in violation of the rights guaranteed by the Constitution of the United States. Both the due process clause
It has become axiomatic that, in the absence of intelligent waiver, the right to the assistance of counsel in criminal cases
And prejudice will be inferred from the denial of assistance 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 representation, 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.
It is insisted that the United States Commissioner is an "officer or employee"
The fact that the Administrative Office passes on the lawful fees of the United States commissioners
The only reason for the separate inclusion of the phrases "and the lawful fees of United States Commissioners"
The only direct limitation as to the qualifications of commissioners 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
If we exclude the one provision relied on, the inapplicability of which has been fully demonstrated, there is no provision prohibiting commissioners from practicing law in the courts of the United States.
This warrants the conclusion that the Congress, by enacting this provision, recognized that commissioners not in this class, i. e., those who, like Mr. Miller in this case, are part-time commissioners receiving fees for such services as they perform and retaining them as compensation, devoting part time only to their office, are permitted to practice law in the courts of the United States. This accords with the policy obtaining in other instances, 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.
Granted that one 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 charged with offenses against the laws of the United States",
"Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however 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."
Because the contention here made as to the status of commissioners, if correct, would affect many part-time commissioners in this Circuit, we have discussed it with great fullness. We are led to the inevitable conclusion 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 commissioner.
In the case before us there is the added fact that after the appellant employed the firm of which Mr. Dean E. Miller, the United States Commissioner, was a partner, the question of possible 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 appellant. Appended to it was a waiver. The letter and waiver are reproduced in the margin.
The experienced trial judge, not content with the written waiver, which was filed in court on March 29, 1956, brought up the matter in open court while the jury was being selected. The following proceedings occurred:
The appellant here is not a stranger to the law. There is a record of his conviction
Waivers of the most fundamental rights, such as the right to the assistance of counsel,
If a situation existed such as confronted this Court recently,
At the conclusion of the Government's case, Mr. Miller made a motion to acquit. Significantly, the motion was broad enough to cover practically all the points made in this appeal, excepting only the question of disqualification. It is reproduced in the margin.
Claims of inadequate representation are frequent. But on close examination they will be found, in most instances, to be merely a defendant's dissatisfaction, after conviction, with the manner in which his case was handled. The answer to a contention of this character was given by the Court of Appeals for the Tenth Circuit, in these words:
There is no showing that witnesses existed who could have placed the appellant elsewhere at the time when the two accomplices placed him at the bank when the offense was committed, or that any other witnesses existed that would have contradicted the consistent and unshaken story of the two accomplices, which the physical facts testified to by others verify, as to the commission of the offenses and the appellant's participation in it. That, in the view of present counsel, the cross-examination may not have been "searching" enough is not sufficient to cast discredit on the competence of the attorneys who represented the appellant at the trial.
After all, there are few trial lawyers who, on examining the record of a trial critically, would not say that "they might have done better". But such surmises would not warrant this Court in branding the defense in this case as so inadequate as to amount to denial of the right to counsel.
The Sufficiency Of The Evidence
There remains to consider the sufficiency of the evidence in the record to sustain the conviction. So doing we bear in mind that our function is not to weigh and consider the contradictions and inconsistencies which counsel for the appellant finds in the testimony of the two accomplices in connecting the appellant with the robbery. Our province is to determine whether there is substantial evidence to support the verdict of the jury taking the view of the evidence most favorable to the Government. Ours is not the function to determine whether, on the record, reasonable doubt could or
The testimony may be given in brief summary. The character of the bank as a national depository on the day it was entered and the money and things of a total value of $30,000 taken is not in dispute.
The appellant and Hall met at Portland, Oregon in the latter part of September 1953. At a small town adjoining Portland, — Gladstone, Oregon — appellant asked Hall how he was doing and if he was making any money or if he was hard up for money, to which he answered "he was pretty well broke", whereupon appellant asked him if he wished to "accompany him on a burglary, 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. About 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
On October 26, Hall and McClure met the appellant, who was in a Studebaker car from which they transferred some tools to McClure's car. They followed the appellant three or four blocks, where he left his car and joined 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 registering 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 entered 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 planning of the entering of the safe and the removal of the property. The 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.
Part of the money and property was recovered from Hall and McClure. All were separately indicted on charges of violating the Bank Robbery Statute.
As already pointed out, 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 function to determine whether, in view of these inconsistencies, a reasonable doubt could or did exist. The jury's verdict determined this question.
The Court gave to the jury a cautionary instruction which left it to them to determine whether they would convict on the uncorroborated testimony of the accomplices. The full instruction is reproduced in the margin.
That situation does not exist here, for the instruction given covered fully the law as applied in this circuit.
The cautionary instruction, although desirable, is not "an absolute necessity."
The rule requiring corroboration of accomplices is of continental European origin. In the English system questions concerning it did not appear until the end of the Seventeenth Century. Of its purport, Wigmore writes:
He condemns the reasons behind a contrary policy. The implication that an accomplice testifying for the Government must have relied on promise, express or implied, of immunity or leniency, — an argument which counsel in this case have stressed, he rejects by stating:
So there are ample reasons, historical, psychological and other, for not changing a cautionary rule into a rigid and dogmatic method of proof for ordinary criminal offenses. The exception in treason
Any change of the rule should be made by Congressional legislation 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.
What has just been said would require the affirmance of the judgment in its entirety. There is one fact, however, of which we take notice as plain error.
The trial judge, by imposing the maximum sentence on Count I and allowing the sentence on Count II to run concurrently, indicated that he intended the maximum sentence to be twenty years. Thus the sentence imposed on Count II became merged in the sentence imposed on Count I. In these circumstances the policy to be followed is to vacate the lower sentence on the second count.
The Judgment will therefore be modified by striking therefrom the sentence imposed on Count II. As so modified the Judgment is affirmed.
"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 as such because of this firm's employment by James Henry Audett to 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 Commissioner. He is further being advised that at the time of his arraignment he should make an oral waiver of any objection he might have in the matters.
"I, James Henry Audett, hereby certify that I have read the above and foregoing letter, that I have been fully advised that Dean E. Miller is a United States Commissioner, and hereby expressly waive any objection that I might have to his being such in the matter of being one of my attorneys in the above referred to matter.
By the same token, having chosen his counsel, he should not be allowed to claim deprivation of due process through inadequate representation, unless the record warrants the conclusion that there was gross and deliberate misrepresentation.
"The Court: The Motion will be denied."
And see the language of Judge Minton in United States ex rel. Weber v. Ragen, 7 Cir., 1949, 176 F.2d 579, 586; and the more recent language of Chief Judge Biggs in United States ex rel. Darcy v. Handy, 3 Cir., 1953, 203 F.2d 407, 426-427; and see, Anderson v. Bannan, 6 Cir., 1958, 250 F.2d 654, 655.
"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 his appearance, his manner of testifying, the probability, or improbability of the facts to which he has testified; his motives, or interest in the case; whether or not his evidence is consistent with itself and with the other evidence or admitted facts of the case, and if, having considered his 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 is guilty beyond a reasonable doubt.