*1 Appellant, GREENWELL, Harold W. America,
UNITED STATES Appellee. 17121.
No. Appeals Court of Columbia Circuit. District of
Argued Oct. 1962. Jan.
Decided Rehearing En Banc
Petition 6,May Denied
Mr. Justice Reed dissented. Cochran, Washington, D. Mr. Dean F. court) (appointed appel-
C. lant. Atty. Murphy, Asst. S. U. TimMr. Acheson, C. David U. Messrs.
appellee. Smithson, Atty. G. Asst. Frederick S. Paulson, Atty., J. Nathan Asst. U. S. at the time brief was Atty., U. S. filed, appellee. the brief for Mr. Nebeker, Q. Atty., Asst. U. S. Frank appearance appellee. entered REED, retired,* Mr. Justice Before Judge, WRIGHT, BAZELON, Chief Judge. Circuit 294(a), U.S.Code. by designation Title Sitting to Sec. *2 Judge. BAZELON, signed station where-he Chief a detailed writ- Appellant, ten confession. on the other indigent apprehend- Our was hand, “grabbed testified that he was pursuant Texas, ed in to a Fort . . . in pants,” the back of [his] charging robbery warrant a in bank physical violence, threatened slap- jury the District of Columbia. After ped in the face when con- he refused to trial he to was convicted and sentenced orally, fess and tricked or beaten eighteen years prison serve six to in signing confession; the written more- pay and $2,000. to a fine of over, consenting he denied to the complaint His chief re- this “search” of his mother’s home. lates to the trial court’s denial his re- quests subpoena to certain witnesses court-ap proceedings, Early in the support of various motions exclude his to variety attempted pointed a counsel —in physical confessions and evidence ob- appel support ways obtain —to tained from him in Fort Worth. story. requested authorization He lant’s appellant’s investigations ver- and The Government’s in Fort certain to conduct developed expense,1 relevant facts —as sions of the but this Worth at Government pre-trial and tes- moved, pursuant in the documents to Rule He was denied. diametrically timony opposed. depositions, Fed.R.Crim.P., take to —were testimony expense, was Government’s at Government being appellant, after advised of who had wit and sister-in-law sister right remain silent and to contact an who nessed the search and attorney, voluntarily testify admitted that he consent claimed would no crime, given.2 had invited the of- committed the denied. And too house where he led moved, ficers to his mother’s he Fed.R. money toy pis- and subpoena, them to the stolen a Crim.P.,3 at Government ex **to tol, taken and asked pense, of individuals and docu- number alleged support request, In he seal of issued the clerk under the the name of the arrest, search, that “this case involves an It shall state court. recovery property] title, any, Ft. [stolen and court and the Worth, Texas”; “appointed person ceeding, counsel command and shall perform, per- give unable to had been formed, is directed attend and to whom it any investigation involving place specified and at the time events”; Legal Agen- above that “the Aid clerk shall issue a sub- therein. The poena, cy away signed due to the far loca- and sealed but otherwise proposed agency investigation, party requesting it, tion of the to a who in blank unable to would be authorize the same.” shall fill in the blanks before it is served. subpoena shall be A issued commis- support motions, alleged of these proceeding him, in a before sioner but it that these witnesses are to tes- not be under the seal of the need court. tify place “that a search took on the Indigent “(b) Defendants. The court premises abode, of their the occu- order or a thereof pants premises give did not consent subpoena be issued motion any search, and the actions and state- request anof or motion or ments at the time of the defendant and supported by shall be officers involved the fendant did not show that the de- in which the defendant shall affidavit state give any consent.” He and of each name address witness and the the alleged that he had written to the expected by. which he is inquiring availability they witnesses their defendant to and had been informed that could that the evidence of shall show the wit- appear at the trial because “Glenda ness is teenage is a [sic] Greenwell still cannot defendant trial with- Virgie pregnant, Greenwell is school. suf- out the condition, fers from sickness from have sufficient does not means and is ac- baby has a six or seven month old tually unable to the fees of the wit- sickly.” iswho If the court or ness. orders the provides pertinent part: subpoena 3. Rule 17 to be issued the costs incurred “(a) Witnesses; For Attendance of the fees of the witness Form; Issuance. A shall be shall be so the same including: (1) cell-mate tion to ments, a certain a witness at Govern- claimed, who, supported by jail ment an “affi- Fort Worth testify appearance davit in which the shall state to the facial “could being questioned name and address each witness after *3 and the which he of the and as to the statements being the questioned the and as to ant after statements of the defendant that he was and shall show that [1] the evidence being threatened such duress”; made while under the effects and (2) beaten, certain said statements newspaper re- of of fense, the witness to trial [2] without the witness the cannot, and porters who, claimed, “were let into [3] the defendant does not the have a tion.” being version involuntary”; of the booked that should show the effects of the Rule arresting officers from any admission or testify safely go to trial of whom testified to the Government’s supporting testimony or evidence. The * * dence defense and that showing [had been confessions and the fruits of the “search” whether the denial poena er the fing around At trial In this interrogation ground ultimately opposing cuffed around This motion was also of the facts. interrogation jail photograph to the visual the Government error. had not been which he claimed “should witnesses material to the which would indicate that was convicted. version, admitted room we face the without such.” the of confession would made] (3) of defendant when Appellant during interroga- ceased effects defendant cannot Fort requirements immediately but without certain records met, requested produced of the cuf- denied, and could since evidence, question testified the evi- sub- aft- any “no require on testimony. of facts averments are their shows, subpoenas defendant does not have sufficient means We averments without porting affidavit nesses version of the would fessions, the averments tiated or sufficient is material documentary think defendant cannot necessity trial which, face, the issue either that the averments be required showing the the witness” means Here, appellant filed a fees must be the facts or unless the Government Thus if the money by introducing would of the production of suppression inherently true, showed evidence.4 We apparent, construed supporting affidavit, averring “that [1] the witness. contemplates case, granted, corroborate proposed witnesses’ which, if safely the and “that of testimonial accused however, “that incredible on the the evidence of requests gun. evidence or materiality go unless rest * * * disagree. the con believed, the wit substan relevant Rule to his own [3] unable avers Thus trial sup [2] ” already record, from matters defendant’s An governed by subpoenas averments are untrue the re quest requires is otherwise frivolous.5 Fed.R.Crim.P. It that each mo- in which similar costs and the Rule is consis manner fees construction Our Coppedge in ease of witness with tent government.” in behalf 82 S.Ot. L.Ed.2d U.S. duty (1962), makes clear particularly op- 4. This construction greatest “to assure to the Federal courts appellant, pressive to since the trial court possible” degree within the framework denying requests defense for inves- - — “equal statutes or relevant rules tigative services and ef- —had every litigant” fectively precluded making treatment from regardless justice, type showing required by criminal bar of its con- ability. struction of the Rule. In that case
Ill
erred
deuce
It follows that
the court
admitted
at
should have been
denying
some
excluded.7 In
least
mat-
absence
requests
ters,
subpoenas.
are unable
conviction
We
will stand.
Since
say, however,
remanding
we are
the error was
whether
for a determination
prejudicial
Therefore,
preju-
whether
error
or harmless.
was harmless or
dicial,
reversing
ambiguities
conviction,
we re-
uncertainties
mand
should
to the District
resolved
in favor of the ac-
determine,
cused.
directions
from evidence
See Kotteakos v. United
produced by
affidavits or
S.Ct.
90 L.Ed.
procedures
prescribed
15(c)
Any
determination
*4
will,
course,
whether the witnesses
appeal-
of
be
presented
able
testimony
have
this
affect-
court.
ing any
issue in the case.
If
So ordered.
affecting any jury
(e. g.,
issue
volun-
(dissenting).
confessions)
REED
tariness of
Mr. Justice
would have
presented,
been
is entitled to
regard-
problems
presents
appeal
testimony affecting any
a new trial.
If
indigent
by
ing
preparation
an
(e. g.,
issue
decision
the court
for
charg-
to criminal
his defense
fendant of
illegal
seizure)
Mallory6
search
or
Congress
have
courts
and the federal
es.
presented,
then the wit-
would have been
through
years
sympathetic
been
hearing
subpoenaed for a
be
will
accept
responsi-
nesses
need
n on
or-
any
and a new trial
such issues
bility
are unable to
those who
hearing
evi-
shows that
if
Provision
dered
their witnesses.1
the costs of
providing
Coppedge, supra,
the statute
construed
Court
in
said
“Any
justification
priori
of the United
court
“no a
there is
*
taking
ap-
may
ap-
considering [indigents’
an]
of
[the
authorize
prepayment
therein,
peal
* *
of
without
plications]
frivo-
a class to
more
mean that
costs
in which costs have been
those
lous than
“
appeals
litigation exists,
must authorize the
paid.”
court
f frivolous
[I]
appeal
frivo-
persuaded
unless it is so
anof
it
is concen-
we are not
narrow, yet vital,
in
“would be dismissed
it
lous
area
trated in
doing
litigant.”
nonindigent
judicial duty.”
of a
case
so,
said
The same should be
strongly
subpoenas.
that a
pauperis
intimated
the Court
If
in forma
about
permitting
requests
dif-
the statute
construction
frivolous
for sub-
there are
poenas,
depending
powerless
of dismissal
on
criteria
ferent
not
court
is
appeal
they
was
or in forma
whether
pauperis
control
whether
are made
them
proc-
non-indigents.
afoul of
due
indigents
would run
And
or
even
n ess
proscription
assumption
of unreasonable discrim-
is correct that there
the
greater
is
subpoenas
ination.
likelihood
frivolous
provides
procedure
by indigents,
a different
Rule 17
the rules should be con-
non-indigents: indigents
indigents
provide
for no more
strued to
discrimina-
previously
ju-
necessary
against
protect
described
must make
tion than
non-indigents may
showing,
danger.
whereas
dicial
assumed
n obtain
subpoenas directly from the clerk’s
Mallory
449,
averring anything.
without
See note
office
1 L.Ed.2d
n supra.
argued
there
is a valid dis-
may
forthcoming,
7. Since new evidence
indigents
between
and non-indi-
tinction
we do not on this
decide whether
obtaining subpoenas
jus-
(cid:127)gents in
which
facts,
developed
present
rec-
e.,
different treatment:
i.
that there
tifies
ord, require exclusion of the confessions
financial “brake”
is a built-in
on non-
Mallory
fruits
the search under the
unlikely
indigents
makes
which
rule.
they
seek,
expense,
at their own
will
subpoenas
cause,
August 8, 1846,
issue
whereas
Act of
ch.
§
no such
“brake”
there
indigents
case of
Stat. 74. This became 878 of
§
the Re
subpoenas
whose
would be is-
vised Statutes of
and then 28 U.S.
n sued-at Government
expense.
ed.).
(1928
In re-
C.
Aug. 3, 1882,
§
See also Act of ,
sponding
argument
378, 3,
to the identical
made
ch.
Stat. 215
appeals,
in the context of frivolous
(1927
ed.).
which became 18 U.S.C. § 656
application
prisoner
assumption
an
of these
for the
process
witnesses,
for three
now included
the Government
process
to be served at the
Federal
of Criminal
government.
The trial
Procedure,
reads:
begun
1890;
May,
the 27th
Indigent
Defendants.
“(b)
application
made until
order
thereof
aor
day May, just
the 31st
is-
defendant was called as the last wit-
ness in his own behalf.
motion
sued
It would
motion or
probably
delayed
the trial a
supported
affi-
request shall be
days
number
to send the
shall
davit
Territory,
into the Indian
make
and address of
the name
state
there,
bring
service of it
witness
testify.
these witnesses to
Whether
expected by
defendant to
delayed
trial should be
for the
subpoenaed, and
show that
shall
production of these witnesses was
mate-
the evidence of
clearly a matter of discretion and
rial to
*5
reviewable
a writ of error.
go<
safely
trial without
ant cannot
to
The
proposed
wit-
defendant
nesses seems to have been
little
not have
means and
does
sufficient
importance,
application
and the
unable
to
fees of
to
these witnesses at the
the witness.
If
court or
expense
the government,
orders the
be issued
have been a matter
of itself
costs incurred
and the
discretion, even
application
had the
subpoenaed
fees of
witness so
been made
began.
the trial
before
paid
shall
be
the same manner in
Rev.Stat.
§
It is clear that the
which similar costs and fees are
ruling of the court
subject
is not
in case
aof witness
to review.
Crumpton v.
government.”
behalf of the
States,
United
361,
138 U.S.
364-
addition,
15(c)
Rule
authorizes
365, 11
355,
S.Ct.
to these provided. are Moreover, appellant’s wholly consistent with his proceedings
at his removal
United States Commissioner in Ft. There, contrary allega-
Worth. to his Court, tions to the District he testified KRAMER, Appellant, Donald given police he per- had officers mission to enter his mother’s house and luggage America, to examine his and effects. Al- UNITED STATES Appellee. though he testified that he had confessed brutality, because feared No. 17293. *7 allege, did not did before the dis- Appeals Court of court, trict by that he was beaten Columbia Circuit. District officers. Argued Dec. suggest Thus, there is much to Jan. Decided have been able to improve his case had the district court
granted pre-trial him the relief which requested, nothing and there is other unsupported sug- than gest contrary. Additionally, the dis-
trict able to observe might, thought and quiry had it such in- helpful, questions have addressed him, in order to substantiate or refute regard. conclusion in its question in thus comes the soundness court’s
down the Government refusal to as- of what can be sume con- investigation no than an sidered more 4. Cf. Indigent Litigants 3. Cf. Aid for Johnson v. United Courts, (1957). Federal L.Ed.2d 593 58 Col.L.Rev. 832 Notes counsel must furnish evidence satisfac- District Courts dure tory to the district court of his need 1945, States, March indicate that United to summon witnesses for his defense or carry were intended over to take points. at distant discretionary authority of the the same procedure put is not operation judge.2 See Reistroffer v. district on mere need, assertion of requires but 379, (C. States, 258 F.2d 395-396 United the exercise of discretion the district denied, 927, 1958), A.8, 358 cert. U.S. 79 judge. early In an interpret- ease (1959); Feguer 313, L.Ed.2d 301 3 S.Ct. ing the statute antecedent to Rule 214, States, (C. 302 F.2d 241 United v. Court stated: 1962); A.8, United Murdock v. assignment (C.A.10, 1960), 585, up- “The third is based F.2d 587 cert. 283 grant denied, 81 refusal of the court S.Ct. 366 6 (b) provides former 656.” to Rule 17 28 U.S.C. The Note exacted now required 15(a) “[t]he states “[t]he justify rule to The Note limitation the stat- such relief is the same as that rule continues 113 438, 444, (1961); 21 S.Ct. 8 L.Ed.2d L.Ed.2d 1246 (1961), arose, (D.D.C.1951); Kinzer, F.Supp. where a similar issue Whiting, F.2d 537 held that an United States v. 1962); should (C.A.2, Estep appeal allowed to forma cf. pauperis 1958). (C.A.5, if the 251 F.2d “not frivolous.” This case these rules indicates course, discretion, not ab- giving should interpreted liberally, under review of “no in the sense solute the defendant the benefit of reasonable circumstances,” leave a but doubts. If a defendant were large degree of decision freedom substantiate with evi- mate- determine dence, Rules 15 and 17 ren- would be riality which the of the evidence largely dered nugatory. Nonetheless, likelihood ant seeks applications determination of what forthcoming. Neither evidence will be largely “frivolous” must still rest gen- nor authorizes Rule 17 judgment on the of the trial court in- expense in- inquiry eral at Government formed the record in the case. crime with to the circumstances of charged upon present facts of the the defendant vide hope example evidence will mere favorable manner unearthed; they provide relevant, though elusive, factors should only aid asserts when be taken into account exercise grounds that a wit- reasonable to believe discretion, district court’s in- pertinent offer ness has dicate possi- there is but a remote helpful is ob- other evidence bility would have been