Jоseph E. WILKINS, Appellant, v. UNITED STATES of America, Appellee.
No. 13850.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 10, 1957. Decided April 10, 1958.
Petition for Rehearing In Banc Denied May 21, 1958.
103 U.S.App.D.C. 322 | 258 F.2d 416
Mr. Sidney S. Sachs, Washington, D. C. (appointed by this Court), with whom Messrs. Lewis Jacobs and Julius Poms, Washington, D. C., were on the brief, for appellant.
Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., and Mr. Lewis Carroll, Asst. U. S. Atty., were on the brief, for appellee.
Before EDGERTON, Chief Judgе, and PRETTYMAN and BASTIAN, Circuit Judges.
PRETTYMAN, Circuit Judge.
Appellant was indicted for violation of the narcotics laws. At trial he withdrew his original pleа of not guilty and entered a plea of guilty to two counts of a seven-count indictment. These two counts involved the sale, and the remaining counts the possession, of narcotics. Appellant was sentenced on Junе 18, 1954. Two and a half years later, on February 13, 1957, he filed a motion to vacate sentence pursuant to
The legality оf the arrest, as we shall see in a moment, is immaterial, as it was not the basis for the search. It is established that a search and seizure may not be attacked under
It appears from the record that a valid search warrant had been issued for the premises where appellant was apprehended and arrested, and the return on the warrant showed the seizure of narcotics and equipment. Further, as trial counsel was undoubtedly aware, if a motion to suppress had been made, appellant would have had to admit рossession of the narcotics. The fact that five of the seven counts were dropped indicated thаt counsel‘s advice was not wholly without benefit to appellant.
Where a petitioner fails utterly to substantiаte with facts his bare allegation of “subterfuge“, this court will not order a hearing on a motion under
“Appellant is nоw serving a term of imprisonment for violations of the narcotics laws.
21 U.S.C. § 174 (1952) ,26 U.S.C § 4704(a) ,§ 4705(a) ,§ 7237(a) (Supp. IV, 1957) . He took no appeal from the judgment of conviction. His first claim of error here, as presented by his counsel, is that he was denied a hearing on his аllegation—contained in his petition underSection 2255 —that he did not receive the effective assistance of cоunsel at his trial, in that he asked his then attorney to make a motion to suppress certain evidence (narсotics) seized in his house, and the attorney refused. We think this allegation insufficient to require a hearing. Trial counsel may have decided that to make such a motion would have admitted appellant‘s ownership or pоssession of the narcotics. See Accardo v. United States, 1957, 101 U.S.App.D.C. 162, 247 F.2d 568. Or he may have thought that the seizure was рroper and that the motion would properly have been denied. Where it does not appear that the motion could have had a significant effect upon the outcome of the trial, it seems fruitless to conduct an investigation of what counsel did or did not have in mind when he declined to make the motion. If such a motion had been made and denied by the District Court, the propriety of the denial could not now be examined in a prоceeding underSection 2255 . See White v. United States, 1956, 98 U.S.App.D.C. 274, 235 F.2d 221, and cases cited.”
The order of the District Court is Affirmed.
EDGERTON, Chief Judge (dissenting).
I think there should be a hearing on appellant‘s allegations regarding ineffective assistance of counsel.
Although a valid search warrant had been issued for the premises where appellant was arrested and the return on the warrant showed the seizure of narcotics and equipmеnt, it did not show that the narcotics here in question were seized on the premises in question. Appellant says some of them were seized, without warrant, on other premises. He says the only article taken from him personally was a set of keys.
Suppression of these narcotics as evidence might not, but also it might, have materially affеcted the Government‘s case. This distinguishes Martin v. United States, 101 U.S.App.D.C. 329, 330, 248 F.2d 651, 652, in which we said: “Where it does not appear that the mo-
It is doubtless true that if a motion to suppress had been made, appellаnt would have had to admit possession of the narcotics. But this admission, which might have established his possession for the purpose of his motion, could not, I think, have been used as evidence for the purpose of proving his guilt. We would be keeping the word of promise to the ear and breaking it to the hope if we held that, although drugs illegally seized from his possession cannot be put in evidence against him, a statement that they were in his possessiоn when they were seized, which he must make in order to prevent them from being put in evidence, can be used to convict him. In the words of the Eighth Circuit, this “would render the constitutional guaranties sonorous but impotent phrases.” Safarik v. United States, 62 F.2d 892, 897. Cf. Fowler v. United States, 10 Cir., 239 F.2d 93.