*1 “Q. you why is were in ther¿ right.” SMITH, Appellant, Johnny Ray ? A. That’s while we convinced America, the last sentence STATES UNITED Appellee. remanding which counsel refer as “the court”, order clarifying, of the needs does, deference to their it view that Court United States paragraph last is of the amended Circuit. Fifth to read: Feb. judgment “The is reversed and the cause is remanded with directions to aside the conviction and sentence proceed and to further and not in- consistently herewith, including, if judge the district justice require it, that the ends of permitting the defendant to with- draw his and- counsel Jr., Montgomery, Moore, B. William stand and to trial.” Ala., appellant. RIVES, Judge (dissenting). Circuit Davis, E. Var- and Robert Hartwell Attys., Montgomery, ner, petition rehearing U. S. Asst. think that the Ala., appellee. granted, respect- and therefore dissent. For reasons HUTCHESON, original hearing of this Judg- BROWN, and RIVES jurisdiction still that the es. the district over court the offense was properly never majority However, invoked. made has now law otherwise, longer of this denied. case and no jurisdiction can assume want of on the however, notice, We take counsels’ thereby of the district inability professed any support to find myself considering excuse from the other for the court’s the record statement majority. questions ruled on government’s prosecuting agent that the ruling is correct that the judge private- district “conferred charged punished by offense death, could regard ly in chambers to defend- hence, required guilt punishment ant’s posed therefor”, to be im- prosecuted under indictment Rule refer them Crim.Proc., (a), U.S.C.A., Fed.Rules testimony,1 in Lill’s after he had judgment it seems to “Quite stated, frequently the Assistant be affirmed. Attorney or the United United States Attorney requests that the back- My think that concerning the defendant fa- judge “perhaps some extent mis- ahead of his miliarized attached, led opinion in the following colloquy sentencing”:, ap- on the ap- of this court former pears 92: charge peal, to the you Well, talk “Q. [238 statements.” 928.] As give him the back- organ order on the Court former right. ground? That’s my duty to know peal, what decided, and, submit “Q. In relation right. was not misled tencing? A. That’s corpus proceeding. transcript Reporter’s California pp. habeas 86-92 *2 case, precisely for that held, what was and think that it a bad establishes ray opinion holding the Court conclud- for the future. If the ing: appellant is that did not waive the as voluntarily sistance of counsel within the “If, alleges, as de- the the case, tests of the Von Moltke Von Moltke of, fendant been convicted had not 316, Gillies, 708, v. 332 U.S. 68 S.Ct. committed, the crimes and 309, 92 L.Ed. then it alleged Agent seems to me con that about which it trary to the clear record evidence in this and Lili informed the my evidently give brothers fact false if Lili did in ground, of they go sure their alleged do not to the district information as so far toas set aside the waiver of coun court, then defendant’s sentence the plea guilty sel and the of lacking process, which due would be subject followed.. Indeed, realistically it would not con-' under Section to attack say sistent States, waiver of counsel 2255.” Smith v. United plea guilty of were not under 223 F.2d standing^ made, but that the holding of limit that is the is bound waivers of venue and of Burke, 334 U.S. v. relied on Townsend indictment made as a of the same 92 L.Ed. 68 S.Ct. culminating overall transaction 1690; plea guilty. Again, of “ I think that the * * * prisoner this Judge record shows that Kenna assumptions of on the basis tenced concerning mer advised the of the na record criminal charges, ture of and that his of materially Such untrue. were which and understand by care- result, caused ingly True, probably he did not design, inconsistent or lessness anticipate sentence, such a severe but the law, and such process of due legal sentence was within the limits and stand.” conviction severity responsibility its was the hearing, fair a full and After Judge Kennamer, not of this If Court. by able time represented this pellant my brothers aside the conviction and that counsel, Johnson of, sentence because in their mentally physically appellant was us, “what seems so obvious to counsel, venue waived he the time fit at hopes that had been somehow raised in guilty and was pleaded indictment, defendants,” and hearts of minds Kennamer, and, fur- sentenced only say then can that I have searched time ther, at the anything the record in. vain for other Kennamer Agent Lili with speed than mere alone any guilty, plea of preceding chambers Agent finding. presume such We should intentionally or un- duty, officers do their and it seems to me statements intentionally an unfair findings reflection my the United those fact. Attorney according my the late under- also, do Kennamer to set aside a conviction standing. upon any sentence unless it Nevertheless, brothers hold that adequately supported by is Finally, the record. and sentence should be set if the action is based them follow I cannot that far. they term, wholly on what “the imper the trial lacked due missible action of the merely speedy, process agent privately conferring does not on was, seem to case”, by past precedents then it seems to supported me to founded circumstances of this flimsiest applicable technicalities.1 In Christakos, the end D.C., United States v. toward Judge Lynne 521, 525, from the be construed United Smith v. first VICTORIA, Lopes Libel Geraldo States, attention ant-Appellant, observ- been called to the safeguards prescribed Rule *3 LUCKENBACH COM STEAMSHIP 32(c) of Crim- (1) of Federal Rules Inc., PANY, Respondent-Appellee. sugges- There was no inal Procedure. tion, however, Docket 24252. merely be- sentence should be set aside United States Court Kennamer talked cause Second Circuit. appellant en- a few before the minutes Argued Jan. than a few his rather tered Decided Jan. prac- such a minutes thereafter. While injury approved, there- tice not be appear a from should made to before
conviction and sentence are set logic would lead any judge disqualification of who to considered received and theretofore probation report of its service’s
the presentence investigation. John- disqualified
son would preside in this case to a In at re-trial the accused. any case, presided who City, Murray Miller, would, upon New York trial at one reversal re- libelant-appellant. re-try disqualified mand, the ac- already heard cused he had Burlingham, Kimball, William M. report. Any presentence considered the Hupper City, Kennedy, & New York would be mischief-mak- respondent-appellee. ing indeed. CLARK, LUMBARD, WATERMAN, reversing judgment, my In broth- Judges. accomplish part of what I think ers appeal, for, done should be
my opinion, judgment should be re- convincing On evidence Wein- versed further be rendered injuries feld has ju- in favor for want of try which this seaman seeks main- merchant risdiction district court to him directly cure tenance and were caused What without indictment. seems me solely goes, and initiated drunkenness a result so far as it to be desirable however, leave, and, concurring on shore imma- injuries opin- terial whether actual oc- an the denial of a shore or curred on on libelant’s return ion consider to ship, impermis- has an be unsound and to establish an held award barred I, S.S.Corp., precedent. therefore, respect- under v. Pan Barlow Atlantic sible 101 697. We dissent. explore question with the “For connection charges’ ‘possible pend- Lynne considering, namely, defenses against mitigating an ‘circumstances defenses and mitigation thereof,’ circumstances within the rule of the Von conference be- in- U.S. tween defendant would be Moltke S.Ct. dispensable independent, sufficiently and an time con- been L.Ed. suming explained investigation, broad accused so as to developed searching as the facts certain that his of counsel was might suggest, understandingly be a would at necessity.” if we virtual clear continue one more sentence: