United States v. Robert Haywood

mаtter comes down to the “The integrity procedure’s funda- 91 S. mental U.S. at fairness.” at 1431.

Ct. given am- think that

ple opportunity present claims be- though he fore the Patent even Office personal interview.

was not afforded a requirement pro- Wilkey, Judge, “The ultimate concurred Circuit meaningful oppor- permits cedure tunity MacKinnon, opinion; filed present facts, test and offer filed on denial of sua perspective, official discre- invoke suggestion rehearing by sponte Collеge of tion.” Blackwell Business en bane. U.S.App. Att’y Gen., United States (decided Sept. D.C. 10, 1971). procedure The followed the Patent Office to reluctant allows op- appellant’s position ventors portunity fair present opposition to their patent.

the issuance of a properly dismiss was granted Assuming court. district pleaded the truth of the facts well statutory

pellant’s complaint neither the

duties Due of the Patent nor Office compelled

Process clause Commis- grant appellant

sioner of Patents to

personal hearing or interview or the procedures

other now demanded. judgment appealed af- from is

firmed. of America

UNITED STATES HAYWOOD, Appellant.

Robert

No. 23935. Appeals,

United States Court of District Columbia Circuit.

Argued June April 20,

Decided

dence admitted that had been ob- pursuant tained is- search warrant by Maryland sued of the Peace should hаve been excluded because was not accordance warrant issued in Fed.R.Crim.P., 41(a), with Rule ‍‌‌‌‌‌​​​‌‌​​‌‌‌​‌​​‌​‌​​‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​​​​‌​​‍proc- was denied due prosecution’s ess law because the prej- jury unduly summation to the udicial constitution- and amounted ally upon impermissible comment testify. supple- failure to We invited mentary briefs on the whether a a of the Peace was Justice and, not, record whether for of that search reason the issuance of the the Amend- warrant contravened Fоurth Katz, Chase, Chevy Md. Mr. Steven M. called attention ment. also counsel’s We court), (appointed by with whom this Coolidge Hampshire, to v. New Waldman, Washington, Mr. Marvin M. 29 L.Ed.2d appointed court) (also by this D. C. only holds that a “neutral which brief, appellant. for magistrate” and detached is authorized Roistacher, Charles Asst. U. S. Mr. H. to under issue a warrant valid search Atty., A. Messrs. Thomas with whom the Fourth Amendment. Flannery, Atty. time at the briefs U. S. the In to two matters addition filed, Terry and Miss were John A. pro above, presented сounsel, by the Attys. Folliard, Mary U. E. Asst. S. alleges se the Section 2255 motion filed, were on the time the the brief “illegal ar- on an conviction was based brief, appellee. for illegal un- rest search and seizure” and FAHY, Before Circuit Amendment, Senior and that der Fourth the WILKEY, and Circuit imposed and ROBINSON Judges. of in violation sentence right appellant’s to Amendment Sixth counsel, as to the effective assistance of alleged FAHY, Judge: as follows: which it is Senior Capital Case, ne- 16, 1966, Haywood counsel On December glected any pre-trial motions to file this court af- No. you, suppress even appellant’s or what have of firmed conviction second request- though petitioner specifically degree murder on an indictment of first suppress motion to degree ed he file a murder under D.C.Code § illegal the evidence obtained conviction 2401. affirmed his request carrying pistol A license, in search and seizure. of a a without prior just that since to trial was made violation of His 22 D.C.Code 3204. § he, (counsel), years the motion twenty did not file for sentence was six suppress, the Court’s year secure for murder and one Section perusal, copy warrant. search offense.1 by trial, failed to determine present appeal At is from denial un- for circumstances without a District Court pro obtained der either evidence appellant’s which se motion vacate palm print sentence, filed search U.S.C. § argued admit- and was introduced evidence initially The issues briefed cross and did evi- ted obtained certain were counsel are question. not now 3204 is violation Section The conviction any re- witness testified ceased's examine who automobile were each fired Span- garding evidence, did counsel from a caliber such nor .38 Colt revolver or any objections copy of to the statement ish-made make a Colt revolver. A gunshop owner Prosecutor testified that within Government six legаl prior authorized months had search was crime he sold pistols appellant. two Colt .38 A palm print lifted the door of de- As to the claimed violation ceased’s car matched that taken from alleges Amendment, the motion Fourth appellant’s palm day arrest, of his appellant’s the area farm home placed ap- and several witnesses either searched on a warrant is- around were build, pellant, man or a of his walk and Mary- sued Peacе of leaving vicinity of the scene cartridge empty land, the 23 that five of gunfire crime seconds after was heard. presented farm were cases found at the trial, foregoing as evidence at war- With the evidence before general object jury, rant authorized defense counsel did paraphernalia and slug narcotic narcotics and admission evidence of implements crime, copy and that no post five of from the farm fence given petitioner nor have subse- it was shell A fire- seized at the farm. quent expert obtain one been fruit- efforts to .38 arms cali- testified discussing legal ques- ful. Before the same ber and were manufactured allegations company tions these raised that had manufactured the motion, body slugs rele- we outline the Section 2255 removed from deceased’s and vant factual situation. This witness testified that car. they from a caliber had been fired .38 midnight August 27, Shortly after on copy Spanish-made aor Colt revolver gunfire 1965, following in the vi- heard revolver. .38 caliber Colt cinity, deceased found uncon- the was above, Street, introduction, alleyway Upshur the as Prior to scious in an off search, Northwest, City. Gov- the evidence secured in this One witness commented, “it appellant, [the ernment counsel others testified he saw and good slug] no as evidence.” farm is us a man his walk saw with testified Moreover, elicited from build, defense counsel and al- exit seconds later from the expеrt cross-examina- leyway Appellant on went firearms and hail a taxi. impossible conclude Greyhound he it was tion that station where bus slugs deceased’s spoke redcap porter recovered from and boarded that with a slug in body Hagerstown, found and the a Maryland, picked driver and car bus. A cab from the post up appellant fired after he farm fence were alighted and, weapon, also, there were from him the bus and drove same revolvers “many .38 оf Colt twelve miles to his farm in the moun- thousands” slugs had appellant from day, ar- one tains. Later that was like the day a next been fired. rested at the farm. The by po- the farm was conducted pursuant purporting to the lice to act I challenged re- warrant. The officers the attack consider first slug post a fence and covered a twenty-three from jury. Since on the summation to else- shell in the was not Section this issue raised property.2 where on the motion, 2255 error сannot attributed holding At it was established for not District Court slugs Moreover, body two removed from we on the issue. deceased and one from door of de- dispose Hol- contention. now of this Cf. evidence, pistol fying, There was at adduced on a .38 caliber Colt found counsel, cross-examination defense in evidence. the farm. It not offered officer, that an other than the one testi- U.S.App.D.C. (II), 928, F.2d

land v. 106, 109, Navarro denied, (5th 981, (concurring opinion). 984, 1970) cert. Cir. A L.Ed.2d 78 federal search violation of right (1971). approve at do not the Rule affords While we an accused thereby argument, trial to the evidence its undesirable features exclusion however, violation, prejudicial as to not unfair obtained. Such a so process law a vi- to a denial of due does not and of itself amount to amount impermissible ap on olation or to comment the Fourth Amendment. an testify. pellant’s question Defense There is no failure the search apparеntly other did think not warrant in this case did conform wise, Although object. did Rule for he with decisive, objection not, required it is of of lack of is the Peace was significance appraising 41(a), the situ some Rule court of record. See appeared time. See State, ation it at the Hahn Md. 52 A.2d App.D.C. (1947).4 objection Milton But v. United no was raised trial, F.2d until evidence in filed. This 2255 motion was Section right was too late to relief to obtain II due Rule. Nev- to violation of the alone validity as to The issue challenge ertheless, warrant difficult. more on Fourth search and seizure it a “federal contends grounds remain availa- Amendment does required compliance search” which And ble under 2255 motion. Section Rule It was conducted members challenge if this is sustainable Metropolitan of the District of Columbia relief, the fruits would entitled Department Police evidence ob relevant seizure were the search and experts tained was examined federal They other reinforced material. who later testified at the trial in a fed pointing to circumstantial evidence degree eral court. This of federal in guilt. Chapman pellant’s possible See than volvement more sufficient California, Lustig it a constitute search. where L.Ed.2d 705 69 S.Ct. held, er- “before federal constitutional a (1949). also L.Ed. 1819 See harmless, court must ror held the can be (I), F.2d Navarro v. United States was it to declare a belief able (5th posited 1968). However, Cir. beyond doubt.” a rеasonable harmless solely noncompliance with Rule we as challenge accordingly the turn to cognizable do not is un think the issue Amendment. under the Fourth der Section 2255. Ill The Federal Rules of Criminal argues Mary carefully ground Appellant that a Procedure are tailored orderly rea procedures rules for fair administering Peace is and in land of the Justice Hampshire, justice. Coolidge su New 41 son of criminal Rule v. magistrate pra, and detached embodies standards which conform with the neutral required by requirements the Amendment. Amendm the Fourth of the Fourth Attorney Hampshire standards, Coolidge however, ent.3 are not the New search warrant coextensive with Rath General issued Amendment. Peace, he and, as specific, capacity er of the there more Justice fore, stringent, law. do state more United States was authorized cf. carry purpose 3. the court advises “The of Rule 41 is to out The Government July system 1, 1971, of District new mandate оf the fourth amendment.” on Maryland, (I), and Navarro United States Courts established at of the Peace the office of Justice abolished. upon Supreme question invalidated the warrant whether a on Court validity ground search and seizure that a Justice of of the objection prose- required. no Peace at the time a One who is same inherently was made to the admission at trial cutor non-neutral. We go far, Coolidge under the cannot so how- seized read evidence ever, say of the When was offered in evidence defense that all Justices objection.” neutrality. stated, requisite “I have no Peace lack Coolidge Rather, say Secondly, no made contention was about we read prosecutorial the case was before Justice of the Peace has evidence when unacceptable appeal. functions, In these he court on direct suffers job by of his bias into his the laws circumstances the arises wheth- built bypassing er there State. was a deliberate orderly procedures available Maryland Here the Justice pellant. so, If a discretion resided in prosecutorial no Peace had functions deny relief, the District even Court to as far as .the record before us demon constitutionally were the search unlaw- strates. did have certain limited He ful: and, powers arrest, judges, as do all proper in a [T]he § indeed, citizens; Maryland all and deny prisoner rеlief to a federal case designated Constitution him “conser by-passed deliberately the or- who has Mary peace,” vator of as it does all provided derly procedures at judges. land But such characteristics do appeal by way of before trial remove the suppress g., —e. required realm of neu Peace from the appeal 41(e) or Fed.Rule Crim.Proc. trality. 4(b). Fay App.Proc. under Fed.Rule 3, at 438 Noia, n. 391] U.S. [372 IY 837]; Henry 822, 9 L.Ed.2d S.Ct. [83 3,n. Mississippi, 443] U.S. [379 challenges 564, 13 L.Ed.2d 451-454 S.Ct. [85 seizure on othеr Fourth 408]. grounds. Amendment The facts neces sary respect a decision to those U.S. v. United Kaufman however, challenges, developed L.Ed.2d n. Court, in the such as whether District Noia, Fay See probable presented cause was 822, L.Ed.2d 837 magistrate warrant, issuance of the States, 125 (1963); v. United Thornton scope search authorized U.S.App.D.C. 114, 121, 368 F.2d warrant, specificity, Judge its its service (dissenting opinion upon appellant, search ex again, Wright).5 this cannot Once granted authority ceeded the record. present determined on the warrant, return pro 2255 mo- Appellant, in his se Section made of under it. None matters requested these alleges specifically tion, that he can be determined from suppress the record. motion to trial to a counsel file all, could not Were this we sustain prior just to a evidence, that hearing denial motion, 2255 of a Section request coun- made that since further was motion, files suppress, to sel had not filed the сonclusively appel would approval copy show that a he secure for the court’s lant entitled ‍‌‌‌‌‌​​​‌‌​​‌‌‌​‌​​‌​‌​​‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​​​​‌​​‍to no relief. Two oth was the search warrant. discussed, however, trial, er bear alleged factors to failed to de- that at majority cognizable 5. The 2255 a mo- Thornton ex- Section pressed subject Judge Wright point no vie-ws on the dis- now dis- tion. that On majority approved sented, position cussed. The held was by Supreme erroneous admission of in Kaufman evidenсe which Court supra. States, was the fruit of an unlawful search was 762 1068, Ct. 10 L.Ed.2d 148 the circumstances termine for the record clearly evidence, judge in- such has case “the which was under which the justice power and, if trial, ends at obtained

troduced — duty demand, the the merits. search, not cross-examine reach and that he did —to regarding any Sain, 293] U.S. who Townsend [372 witness testified Cf. 745, 312, evidence, object 9 L.Ed.2d 770.” or the statement 83 S.Ct. to 18-19, prosecutor au- See at S.Ct. at 1079. U.S. States, legal un- thorized These Thornton v. United U. allegations quite S.App.D.C. 125-126, F.2d 822. resolved material at there whether to guides The to be followed bypassing, at- deliberate which could be evaluating bypass a deliberate whether appellant, orderly pro- tributed ing Fay are found has occurred required. A remand cedures. Noia, 438-439, 372 U.S. at Though case in L.Ed.2d 837.

V corpus volved habeas attack on a federal conviction, guidelines a state laid remand, pro On the alternative apply collat down no less this federal cedures are to the District available eral on a federal attack Section 2255 Court. conviction. Sanders v. United may A. The court first determine In Noia at U.S. S.Ct. and seizure were val- stated: Court so, id under the Fourth Amendment. If very But we wish to make clear appel- the evidence was admissible and grant deny relief discretion [to lant would no relief be entitled to “by-passing”] in event of deliberate its reason of admission at The trial. interpreted permission not to bе as a suggested possi- Government has not legal into federal introduce fictions application ble of Hester v. United corpus. The habeas classic definition 68 L. U.S. S.Ct. in Johnson waiver enunciated slug or Ed. 898 Zerbst, S.Ct. [58 U.S. pursuant recovered the search war- 82 L.Ed.2d 1461]—“an rant, and the record us does not before relinquishment abandon- tentional or upon apply call tous that decision. right privilege” ment a known or Alternatively, B. court controlling —furnishes the standard. first determine whether failurе at 849. object of counsel to or to to the evidence say on to the trial Court went admissibility issue on raise the to its deny judge unless the must not relief appeal to deliberate direct amounted prior a claim was failure vindicate bypassing, appellant, attributable “understanding^ knowingly” waived orderly procedures provided at or before competent “after consultation with Kaufman, way appeal. trial and strategic, ‍‌‌‌‌‌​​​‌‌​​‌‌‌​‌​​‌​‌​​‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​​​​‌​​‍tac- counsel or otherwisе” for supra. If the finds such court deliber fairly any de- tical other or reason bypassing, may deny ate relief with deliberate, “only after the scribed inquiring out into the itself, by federal court has satisfied following seizure, search and qualification. holding some other Even were bearing means, upon the of the facts bypassing find a deliberate attributable plicant’s add- then default.” Court appellant, nevertheless ed: justice shows that the would be ends of reaching clearly served the merits of his under At all events we wish it claim, put de constitutional the court should forth stood that the standard here question depends termine the of the choice on the considered Carnley v. Coch petitioner.44 search and seizure. v. Sanders Cf. States, 1, 16-17, ran, 506, United 373 83 S.Ct. [82 S. U.S. 513-517 U.S. 369

763 884, 888-891, ; 8 L.Ed.2d Moore v. seizure, 70] the search and and conse- Michigan, 155, quent 355 U.S. 162-165 [78 admission at trial fruits 191, 195-197, 167], thereof, S.Ct. 2 L.Ed.2d preclude denial of the motion partici A choice made hearing, without motion, files pated petitioner in au doеs not conclusively do show that tomatically (footnote ;In bar relief. was entitled to no relief. omitted) respect, discussed, and in all others imply we no criticism 439, whatever of coun- 372 U.S. at 83 S.Ct. at 849. Cf. question, rather, sel. The Henry must Mississippi, be con- 443, v. 379 U.S. 451- appellant’s sidered in 452, 564, terms whether (1965). 13 L.Ed.2d 408 part upon conviction rests denial of a sum, should the District protection constitutional ei- afforded Court (1) find either that relief is not ther the Fourth or Amendment. Sixth barred bypassing under the deliberate so, Noiа, If Fay it cannot stand. v. rule, applied standards, under the above 402, U.S. at 83 S.Ct. 822. (2) that, or even were there a deliberate proceedings Remanded for bypassing justice the ends of would be opinion. consistent with this by determining served evi dence fruit of an unconstitu WILKEY, concurring; seizure, tional search or the issue of the' Judge Fahy’s I concur in carefully validity of the search and seizure should opinion reasoned and the action the following approach reached.6 In herе, court takes con- not because I am (1) either there eventu should action, vinced ‍‌‌‌‌‌​​​‌‌​​‌‌‌​‌​​‌​‌​​‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​​​​‌​​‍of the wisdom of the but finding by ate a the court that the evi compelled I because feel it is the Su- inadmissible, dence was a new trial preme Court’s 5-3 decision Kaufman granted, should be for the use at States, 217, United v. U.S. S.Ct. evidence obtained an unconstitutional 1068, (1969). appli- The L.Ed.2d search or seizure violates the Fourth today Supreme cation we make Ohio, Mapp Amendment. v. 367 U.S. rule in Court’s illustratеs how 655, 643, Kaufman 1684, 6 L.Ed.2d 1081 S.Ct. opened by wide the door was that deci- (1961); Fay Noia, sion, perhaps suggests 822; and the error would not Court would to follow have been wiser here be harmless. majority decision of this court States, Thornton United 125 U.S. VI App.D.C. 368 F.2d 822 minority rather than the Necessarily involved in the consequences ease. If the of Kaufman proceedings to had on the remand appear undesirable, thoroughly now above outlined is the of ineffective claim beyond matter rectifiсation cognizable counsel, assistance of High Court, although it is us. as violative Section 2255 motion, Amendment.7 sponte suggestion rehearing Sixth sua A regard, allegations in with its in this denied, in the court en banc was cluding respect particularly MacKINNON, those with connection with which proceeding (1967). However, requires As to tlie manner of 284-285 presence personal “powerful showing remand insofar as the less inade appellant, questions quacy” ajipellant’s related burden to sustаin concerned, see States, appeal required Sanders United on col on direct than is 373 U.S. at 83 S.Ct. 1068. lateral attack. Bruce “ U.S.App.D.C. F.2d * * * * * * (1967). representation whether his was so Hammonds, United States v. effective that was denied a App.D.C. 166, 169, 425 F.2d fair trial.” Harried v. United U.S.App.D.C. following And while remand does not ex- makes pressly points, turn on I ob- these also statement: ject opin- to the in the court’s comments ion, tendency because of the of dicta Judge: MacKINNON, Circuit confuse, that the search violated Fed.R. of I for banc consideration vote en ’Supreme de- (cid:127)Crim.P. 41 and the Court’s in to maintain uniform- this ity order case Coolidge Hampshire, in cision v. New Fed.R.App.P. 35, decisions, of our 443, 91 29 L.Ed.2d 403 U.S. generally hear- do not authorize which ings grounds. on insubstantial 41(a) by virtue its Fed.R.Crim.P. of permissive wording merely opinion authorizes directs a remand The court’s certain courts record in 1966 to consider of and United of tried case (who error are not States Commissioners whether there was constitutional casings record) admitting of courts search war- in of shell issue a number alleged- require they It all does not search into were rants. evidence because inadequate by ly search in cases to issued warrants obtained an prohibit However, not the rule courts of record. It does of because using from federal authorities in Hester United announced of the the laws 68 L.Ed. 898 warrants authorized specifically not inter- only to 5 and it does objection relates states this casings specially in authorized.2 found with shell were fere searches which shell cas- house not relate and does my view the court’s ground ings at the front found on the Hampshire, Coolidge New misreads supra, 166). (Tr. 164, There the farm house applying sanctions to its testimony shell positive that the 5 is Maryland who Peace of the Justice casings stamp initials bore the head it when here sued the warrant (Tr. 170), indicated which “W.R.A.” states: firearms were made the same say Coolidge that read [W]e manufacturing company that manufac- prosecutorial has the Peace Justice of functions, slugs deceased tured which killed unaccepta- he suffers nothing in the record victim. There is job by the laws into ble bias built casings any were to indicate of his State. casings. They all different from 23 exhibit, Coolidge violation it is a holds that part one formed with a search Amendment for separate (No. 6). Fourth envelope Thus a appears person who merеly casings issued warrant the 5 prosecutor positions occupies the dual Counsel ‍‌‌‌‌‌​​​‌‌​​‌‌‌​‌​​‌​‌​​‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​​​​‌​​‍to the cumulative evidence 23. (or Peace police) object and Justice did and I to their admission respect which permit to raise would not the accused with offense being relates; years point reason In the warrant late date. this by an be issued passed conviction the warrant would have since the certainly a magistrate. affirmed, impartial But have been all the through Government, Maryland Peace is destroyed, and the preju- prosecution own, any way necessarily for in the no fault of its volved the District diced some extent. a murder committed 41(g) provides: 41(a) provides: Fed.R.Crim.P. Fed.R.Crim.P. any act, modify does not A search warrant authorized This rule search, it, regulating judge of the rule be issued inconsistent state, and execution the issuance or- of a common- seizure and States in circumstances warrants wealth or territorial of search special provision with- is made. The a United States commissioner property “property” rule to in this in the wherein the term is used district books, papers sought documents, is located. include objects. tangible any other say all Columbia. To search war- by judges justices

rants issued peace Maryland in the State

unconstitutional because designates

Constitution them “conserva-'- leaving peace,” while ar-

tor[s] police prosecutions

rests and completely misapply

prosecutors, is to

Coolidge.

Alfred J. TESTON al., Appellants.

Edward L. CAREY et

No. 24959. Appeals,

United States Court

District of Circuit. Columbia

Argued April 10, 1972. May 12,

Decided Bacon, Washington, D. H. Harold Mr. Welly K. appellants. , Messrs. for C. McFadden, Joseph

Hopkins T. C., for Washington, on the brief D. appellants. Washington, Handwerk, Robert C.

Mr. C., appellee. for D. WILKEY,

Before LEVENTHAL Judges, N. and RONALD Judge DAVIES,* District Senior Dakota. the District North * 294(d) (1970). Sitting designation pursuant § U.S.C.

Case Details

Case Name: United States v. Robert Haywood

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 20, 1972

Citation: 464 F.2d 756

Docket Number: 23935

Court Abbreviation: D.C. Cir.