The opinion of the court was delivered by: RYAN
The defendant moves under the provisions of Section 2255, 28 U.S.C.A., and Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., to vacate and set aside the judgment of conviction and sentence of death imposed upon him and for a new trial under an indictment which charges that on July 26, 1952 he, with malice aforethought, deliberately and with premeditation, shot and killed Joseph J. Brock, then an agent of the Federal Bureau of Investigation engaged in the performance of his official duties.
This motion is made after trial and conviction of the defendant by jury verdict of Murder in the first degree, without qualification as to punishment, and after affirmance of the conviction by the Court of Appeals, 211 F.2d 171, and denial by the Supreme Court of a petition for a writ of certiorari and denial by that Court of a petition for rehearing. It is claimed in support of this motion that 'defendant was, as a result of certain rulings of the trial court and the decision of the Court of Appeals for the Second Circuit, denied due process of law and the substance of a fair trial,' and that there was 'error dehors the record.'
The substance of the first claim is that the defendant was denied effective representation by counsel at the trial because the trial court admitted in evidence on the question of motive an indictment which charged the commission by this defendant of a bank robbery in Kansas, while on appeal the Court of Appeals ruled that although the indictment could not be considered on the question of motive it was properly before the jury as evidence of the authority of the deceased to arrest the defendant and as tending to show that the deceased had been killed in the performance of his official duties.
The indictment is described as 'highly inflammatory and prejudicial' because it charged that the defendant 'by force and violence' took a large sum of money from a national bank and in doing so 'did assault and put in jeopardy the life' of the bank cashier and other employees of the bank and that this was done by use of 'dangerous weapons.'
The warrant (Gov.'s Ex. 49) issued on this indictment contains a command to any United States Marshal to arrest the defendant and to bring him before the District Court for the District of Kansas 'to answer an indictment charging him with bank robbery and assault in violation of Title 18, 2113(a) and (b).' No question is raised as to the admissibility of the warrant. The warrant of itself revealed neither the date of the robbery nor the name of the bank or its location. Oral testimony established the fact of a robbery in which the defendant participated; the warrant, the authority for the defendant's arrest; and the indictment, that the warrant had been issued for this particular robbery and that the defendant's arrest was sought as a participant in it.
The indictment in simple though legal verbiage alleged in the first count, that on November 23, 1951, one George Arthur Heroux and the defendant held up and robbed the bank, and that in so doing did assault and put in jeopardy the life of employees of the bank by use of dangerous weapons, to wit, a rifle and a revolver; and in the second count, that the defendant and his named confederate did on that day enter the bank premises with intent to commit a robbery.
The indictment charged no more, and in fact far less, than was established by admittedly competent oral testimony and the inferences flowing from it.
There was testimony that the bank had been held up on November 23, 1951, at about 8:30 a. m. A witness, an employee of the bank, testified that when she entered the bank she was 'stopped by a man with a rifle' (S.M. 746) who told her to remove her coat and sit down. She identified the defendant as this man and added that 'there was another armed man,' (S.M. 747) and that they remained in the bank until approximately ten minutes to nine. The testimony of this witness concerning the bank robbery was sufficient to support an inference of the wrongful purpose of the defendant and his confederate. There was no cross-examination of this witness and no witness was called by the defendant to contradict her testimony on the identification. With the testimony of defendant's participation of the bank robbery properly before them, it is stretching imagination too far to say that proof of formal accusation by indictment for that crime served to inflame the minds of the jury and to prejudice them against the defendant.
There is no basis for inferring that the jury ascribed any significance to the fact that the defendant had been indicted for the bank robbery when it came to consideration of the question of motive. The jury was instructed as to the general law applicable to indictments when the court charged with reference to the indictment on which the defendant was on trial that,
'The indictment is not evidence. The fact that it has been filed against this defendant is not in any way to be considered by you in determining his guilt or innocence.' (S.M. 854.)
The purpose for which the indictment was received in evidence was made manifest to trial counsel when just prior to the time it was offered the United States Attorney said of the indictment and the complaint before the Commissioner: '* * * I am not offering either of these documents in evidence, and I am trying to get at one single fact, and that is simply the date on which it is charged the defendant committed an offense.' (S.M. 739.)
The defendant argues that the 'purpose for which the highly prejudicial bank robbery indictment was introduced and read to the jury, was not known until the Court of Appeals decision was rendered,' and from this premise continues that had defendant's counsel on trial been advised of the 'theory of admission', to wit: on the question of whether the deceased was engaged in the performance of his official duties 'counsel could have conceded this fact'. Of course, many concessions could have been made but counsel did not choose to make them.
It is urged that trial counsel offered to concede that the deceased was engaged when killed in the performance of his official duties, but the trial record shows the contrary. The opening statement of the defense did not disclose an inclination to make any factual concession except such as might be dictated by trial tactics. Here, counsel stated:
'In the first place, while we deny everything, including the fact that it was the shooting by the defendant which caused the deceased's death, nevertheless we cannot shut our eyes to certain obvious facts from which inferences may be drawn; and it may very well be, although we do not admit it, that the inference is inescapable that the deceased did meet his death from bullets ...