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July 15, 1954


The opinion of the court was delivered by: WEINFELD

This petition by Bradford for a writ of error coram nobis follows in the wake of the Supreme Court ruling in United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, that a District Court has power to vacate its judgment of conviction after the expiration of the full term of the sentence imposed thereunder.

Bradford up to the decision in the Morgan case made various applications, all unsuccessful, to vacate the judgment of conviction which had been entered upon his plea of guilty during the progress of trial after the Government had put in the bulk of its evidence. He also pled guilty on behalf of the co-defendant Business Research Inc. He was sentenced to a year and a day on two counts to run concurrently and as to two additional counts the sentence was suspended and he was placed on three years' probation to commence after the service of the imposed sentence.

 Within a few days after the commencement of his sentence, Bradford took the first of various steps to vacate his conviction. He appealed to the Court of Appeals of the grounds: (1) that the District Court had no jurisdiction; and (2) that the indictment did not charge a crime. The appeal was dismissed as frivolous. *fn1"

 His next move was to file an application under § 2255 of Title 28 U.S.C., to vacate the sentence alleging that he had been compelled in violation of his constitutional rights to testify before the Grand Jury which had returned the indictment against him and the corporation, but withdrew this motion on the ground that it was 'inadequate.' Shortly thereafter he petitioned for a writ of habeas corpus, which was denied. His appeal from the denial of the writ was dismissed by the Court of Appeals because the issue had become moot, petitioner having served his term and been released. *fn2"

 Then followed his last step prior to the present application. This was a motion to vacate the judgment of conviction on the ground that: (1) he had been forced to testify without representation by an attorney when subpoenaed to testify before the Grand Jury which returned the indictment; and (2) the indictment was void because he had been compelled to testify before that body.

 This District Court denied the motion on the merits after a hearing. Upon appeal the Court of Appeals sua sponte raised the question of the District Court's jurisdiction to entertain the motion and concluded that it should have been dismissed, without considering the merits, because of lack of jurisdiction. *fn3" The basis of the Court's ruling was that since Bradford was not in actual confinement or subject to custody under parole, he was in no position to review the conviction by habeas corpus or by a motion under 28 U.S.C. § 2255. The Court of Appeals expressly reserved the issue of the power to grant a common law writ of coram nobis when a petitioner was detained pursuant to a state or federal judgment of conviction and the period of detention under that judgment of conviction was dependent upon the earlier federal conviction which the petitioner would attack.

 Subsequently, in United States v. Morgan, 2 Cir., 202 F.2d 67; United States ex rel. Lavelle v. Fay, 2 Cir., 205 F.2d 294, United States ex rel. Farnsworth v. Murphy, 2 Cir., 207 F.2d 885, the Court of Appeals held that notwithstanding 28 U.S.C. § 2255, the ancient remedy of coram hobis was reserved to the District Courts although petitioner was no longer in custody or subject to custody under the judgment attacked when, in fact, he was detained by virtue of another judgment under which sentence was in some measure determined or controlled by the challenged judgment.

 Following these rulings and in reliance upon them petitioner filed his present application for a writ of error coram nobis. It was not brought on for argument until after the Supreme Court had affirmed the Court of Appeals in the Morgan case. By that time the petitioner had served his sentence, he was no longer subject to parole or probation under the counts as to which sentence had been suspended, and was not detained under either a federal or state court judgment of conviction. Nonetheless, I decided to grant a hearing in view of the broad sweep of the majority opinion in the Morgan case. The Court there stated that 'Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid.' *fn4" Although petitioner was afforded the opportunity by my ruling to sustain the allegations and charges in his complaiant, and although he had the burden of proof, *fn5" he failed at the hearing to testify or offer any proof, preferring to rest upon the allegations in his petition. The Government, on the other hand, called witnesses who were cross-examined by petitioner's counsel.

 With but one exception, the present charges are similar to those previously made and found wanting. The additional charge is that following his arrest he was denied -- without proper waiver -- the right to be taken before a United States Commissioner for the Eastern District of New York in violation of Rule 40(a) of the Federal Rules of Criminal Procedure, 18 U.S.C., and was thereby deprived of a claimed right to resist removal from that district to the Southern District of New York, and also of his right to counsel at such removal hearing.

 Bradford was arrested on Sunday, September 18th, 1949, at about 5:00 p.m. at his home in the Eastern District of New York, which adjoins this district. The arrest was made by a New York City police officer, accompanied by a federal postal inspector, pursuant to a warrant duly issued in the Southern District of New York by the United States Commissioner for that district, based upon a sworn complaint made by the postal inspector. Without delay Bradford was booked at the local police station, then promptly brought to the police headquarters located within the Southern District of New York; indeed, within a stone's throw of the Federal Court House. Early the next morning, he was taken from police headquarters and arraigned in the Southern District of New York before the United States Commissioner who had issued the warrant for Bradford's arrest. He was fully informed by the Commissioner of the charge against him and his right to counsel -- all in compliance with Rule 5(b) of the Federal Rules of Criminal Procedure. Upon his demand for examination, the matter was adjourned and bail was fixed in a reasonable sum.

 Petitioner specifically claims that he should have been taken before a Commissioner in the Eastern District, where he was entitled to a hearing to resist removal to the Southern District with the aid of counsel and that the failure to afford him such hearing invalidated the subsequent indictment to which he pled guilty. On the law and the facts the contention is without merit. Since Bradford was arrested in the Eastern District of New York and the warrant had been issued upon a complaint in the Southern District of New York, he was only entitled to be brought 'without unnecessary delay before the nearest available Commissioner or before any other nearby officer empowered to commit persons charged with offenses against the law of the United States.' Rule 5(a). *fn6" Both districts being within the same state, he was not entitled to contest his removal from the Eastern to the Southern District of New York under the Federal Rules of Criminal Procedure; nor does the Constitution require such a proceeding. *fn7" In fact, Rule 40(a) was intended to prevent precisely what petitioner here urges and the delays and frustration of prosecutions inherent in such suggested procedure. *fn8" Had Bradford been taken to the Eastern District and had the Commissioner there held him to answer, the Commissioner would have been required to bind him over to the Southern District Court where the original complaint had been filed. *fn9" Moreover, when Bradford was arrested on Sunday evening, September 18th, 1949, it appears that no Commissioner was available in either the Eastern or Southern Districts of New York. On the following morning the nearest Commissioner available was in the Southern District of New York, where he was promply arraigned. Under these circumstances it cannot be said that by his arraignment in this district, instead of the Eastern District, Bradford was prejudiced or deprived of a 'fundamental right.' *fn10" Even assuming arguendo that there was any technical error in his arraignment in the Southern District, Bradford waived it when he went to trial with competent counsel and took no action with respect to the alleged defect. *fn11"

 After conduct of the hearing and taking of testimony and upon the record of all proceedings, I make the following

 Findings of Fact

 (1) The defendant, Robert L. Bradford, was arrested on Sunday, September 18th, 1949, at or about 5:00 P.M. at his home in the County of Queens, City and State of New York, within the Eastern District of New York pursuant to a warrant for his arrest duly issued on September 13th, 1949, in the Southern District of New York by United States Commissioner Edward W. McDonald based upon a ...

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