194 F.2d 197 | 2d Cir. | 1952
Lead Opinion
Bradford appeals from an order denying a motion made by him to vacate a judgment of conviction entered upon an indictment for using the mails to defraud. His ground is that he was subpoenaed to appear before the grand jury which found the indictment against him; that he was forced to testify without the assistance of counsel; and that this deprived the jury of jurisdiction to find the indictment and the court to try him upon it. The facts upon which this claim rests are as follows. Bradford and a corporation which he absolutely controlled were indicted on October 27, 1949, for using the mails to defraud. This indictment in four counts charged that they had
A few days before November 9, 1949, the prosecution served Bradford with a subpoena duces tecum commanding him to appear before the grand jury on that day and to bring with him certain books, papers and records of the corporate defendant. He did appear; he was sworn and after being informed that he need not answer any question which would incriminate him personally, he was questioned at length about the existence and whereabouts of the corporation’s papers. He testified that, although he had at one time been president of the company, he had resigned; that he did not know where the papers were or who had possession of them; and that he could not have produced them, if he did, because he was under arrest upon the first indictment (as in fact he was); and he protested against being called to testify on the ground that the examination was “unfair,” and, was only designed to compel him to give testimony which his constitutional privilege authorized him to refuse. It is obvious that his testimony and general bearing aroused the hostility of at least one member of the panel who joined in the questioning; and, although the questions put to him were all confined to extracting possible information about the whereabouts of the corporate papers, we shall assume for argument that they were pressed unduly, until he became privileged to refuse to answer. On December 21, 1949, while serving his sentence he appealed to this court upon the ground that the indictment did not charge a crime; and we dismissed the appeal as frivolous on January 31, 1950. On June 28, 1950, he filed a motion under § 2255 of Title 28, U.S.C. to vacate the sentence because of his enforced testimony before the grand jury; but this he withdrew on (July 7th of that year, on the ground that the motion was “inadequate.” On July 12th he petitioned for a writ of habeas corpus which the judge refused. He appealed from this order and we dismissed that appeal on January 11, 1951, because the issue had become moot, Bradford having by that time served his term and been released.
Since he may not invoke § 2255, his available remedy, if he has one at all, must be under Criminal Rules 33, 34, and 35, 18 U.S.'C. Rule 33 is too plainly irrelevant to justify discussion; and Rule 34 requires the motion to be made within five days after “determination of guilt”, or within any further period that the court may allow within five days. There remains therefore only the first sentence of Rule 35 which declares that “the court may correct an illegal sentence at any time.” At common law there were always exceptions to the doctrine that a court lost jurisdiction over its judgments, civil or criminal, with the expiration of the term at which they were entered. These exceptions included clerical mistakes and a sentence which the judgment did not support.
As the law now stands, the remedies open to a convict who is not in custody are limited to an appeal from the judgment, and to a motion made under Rules 33, 34 and 35; and so far as he seeks to challenge any question of the court’s jurisdiction he must bring himself within Rule 34. Not so, if he is in custody. If Bradford is arrested during the remaining period of his probation, we do not say that he will not be able to challenge the court’s jurisdiction by habeas corpus or under § 2255; but, as the case stood, the court had no power to entertain the motion and should have dismissed it without considering the merits. For these reasons the orddb must be reversed and the cause remanded to the district court with instructions to dismiss the motion for lack of jurisdiction.
Order reversed; cause remanded with instructions to dismiss the motion for lack of jurisdiction.
. § 1341 of Title 18 U.S.C.
. United States ex rel. Bradford v. Thompson, 2 Cir., 185 F.2d 1021.
. Chicago, B. & Q. Ry. v. Willard, 220 U. S. 413, 419-421, 31 S.Ct. 460, 55 L.Ed. 521; Weinstein v. Black Diamond S. S. Corp., 2 Cir., 40 F.2d 590; Cheyne v. Atchison, T. & S. F. Ry., 9 Cir., 125 F. 2d 49; De Filippis v. Chrysler Sales Corp., 2 Cir., 127 F.2d 530; Fleming v. Richter, 2 Cir., 159 F.2d 792; Baltimore & Ohio R. R. Co. v. Chicago River & Indiana R. R. Co., 7 Cir., 170 F.2d 654, 658.
. Wales v. Whitney, 114 U.S. 564, 572-575, 5 S.Ct. 1050, 29 L.Ed. 277; Stallings v. Splain, 253 U.S. 339, 343, 40 S. Ct. 537, 64 L.Ed. 940; Sibray v. United States, 3 Cir., 185 F. 401, 403; United States v. Tittemore, 7 Cir., 61 F.2d 909; Rowland v. Arkansas, 8 Cir., 179 F.2d 709.
. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263.
. 9 Cir., 186 F.2d 704.
. 6 Cir., 173 F.2d 909; on rehearing, 6 Cir., 175 F.2d 192.
. Hammers v. United States, 5 Cir., 279 F. 265; De Benque v. United States, D. C.Cir., 85 F.2d 202, 207; Anderson v. Rives, D.C.Cir., 85 F.2d 673, 675; Garrison v. Reeves, 8 Cir., 116 F.2d 978; Lock-hart v. United States, 6 Cir., 136 F.2d
Rehearing
On Petition for Rehearing
None of the decisions, now for the first time cited, needs notice except United States v. Steese, 3 Cir., 144 F.2d 439, and Roberts v. United States, 5 Cir., 158 F.2d 150. In each of these the defendant was allowed to challenge a federal judgment because of matters dehors the record after the time prescribed, although he was not in custody under the judgment. In each he was, however, in custody under the judgment of a state court, the duration of the sentence upon which depended upon the validity of the federal judgment. It may be that that is a situation which justifies interposition by motion outside the Rules; we have no occasion to pass upon that question in the case at bar.
Petition denied.