Opinion
In the matter of the petition of Honorable Lowell Mundorff, Clerk of the United States District Court for the District of Oregon, for instructions as to the response to be made to a praecipe requesting transmission of original papers in a criminal cause to another district in accordance with Rule 20, Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687.
Instructions in accordance with opinion.
Henry L. Hess, U.S. Atty., and Edward B. Twining, Asst. U.S. Atty., both of Portland, Ore., for the United States.
JAMES ALGER FEE, District Judge.
The Honorable Lowell Mundorff, Clerk of this Court, has asked for instructions as to what response shall be made to a praecipe which requests that he transmit to the Eastern District of Oklahoma the original papers in a criminal case or certified copies thereof in accordance with Rule 20, Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687. The United States Attorney has likewise filed a motion that the Court direct the Clerk to transmit the papers to the Eastern Disrict of Oklahoma. The petition of the Clerk suggests that the rule is unconstitutional, but before that point be reached, care must be taken to see that all procedural conditions precedent have been observed, for procedure is the shield of the substantive rights of defendants in criminal cases. The mere fact that a defendant has appeared to waive his constitutional rights may be illusory.
A copy of the petition of the Clerk is appended hereto.
Rule 20 provides that ‘ upon receipt of the defendant's statement’ the Clerk shall transmit the papers to the district where the defendant was arrested.
The petition of the Clerk shows that attached to the praecipe there is a statement signed. But there is no proof that Henry Clay Green, the person named in the indictment, was the person who wrote the name upon the statement in the possession of the Clerk. The Clerk is under no duty until that is established. The statement is signed with the name ‘ Henry C. Green.’ This name does not correspond with the name in the indictment returned in this court. There is no way in which the Clerk can know whether the person signing the statement was the same person who is defendant in the criminal action pending here. The Clerk cannot take judicial notice of his signature. If a defendant comes into court here, his identity can be either admitted by him or proven. But the Clerk of the District of Oregon cannot know that some one is not masquerading as a defendant in order to save the real culprit. So far as the Clerk can ascertain, this may be the reenactment of ‘ A Tale of Two Cities' in real life. It is true the chances are overwhelmingly against it, but if the Clerk is to do an act which may transfer jurisdiction of an indictment returned and pending in this court, the jurisdictional facts must be before him before he can act under the rule.
Since an admission of guilt is involved, not only the rules of judicial notice but those relating to confessions might be applicable. Wigmore Evid. (Third Ed.), Sec. 821, 822.
But the rule makes another more stringent requirement to the effect the Clerk shall transmit the papers ‘ to the Clerk of the court for the district in which the defendant is held.’ There is no scintilla of proof before the Clerk as to where defendant is held or whether he is held at all. But beyond that a defendant, if the rule is valid, can only ‘ consent to disposition of the case in the district in which he was arrested.’ There is neither proof in any form before the Clerk that the defendant in the indictment here pending has been arrested in the Eastern District of Oklahoma, nor that defendant is held in the district in which he was arrested. If this requirement is jurisdictional, these defects are fatal. If the rule relates only to venue, still the consent must be framed to accomplish the transfer only to the district contemplated by the rule. Therefore, the Clerk must be assured upon these points before he acts.
Furthermore, the Clerk of the United States District Court for the District of Oregon can not take notice of the name which he certifies to be illegible written above the words ‘ United States Attorney Eastern District of Oklahoma.’ A District Court of the United States is not required to take judicial notice of what persons are the officers of another district court of the United States, even if these be in the same circuit. Much less is this court required to take judicial notice of the signatures of the United States Attorneys of another federal judicial district. A fortiori, this court is not empowered to notice the signature of a United States Attorney of another circuit.
Before an order of this court can be used in another district court, the copy must be certified by the Clerk and the Judge must certify to the signature of the Clerk and the Clerk must certify to the signature of the Judge before the copy is entitled to admission in any other district court of the United States. A copy of the traditional form is set in the margin.
United States of America
The rule apparently contemplates the transfer of jurisdiction from the District Court of the District of Oregon, where the indictment was found to an entirely independent tribunal, the District Court of the Eastern District of Oklahoma. When contemplating an attempted transfer of a criminal case from a state court to a federal court, it has been held by high authority that all of the prerequisites outlined by the statute must be performed before jurisdiction is withdrawn. But, as has been pointed out before, jurisdiction cannot be transferred by force of a rule alone. Then, say the proponents, since the rule makes provision of transfer of the case, venue alone is involved. Even if this thesis be correct, all of the conditions precedent must be complied with before the venue is changed. It would be futile then to send the papers until the requirements of the rule have been fulfilled.
People of State of California v. Lamson, 9 Cir., 80 F.2d 388.
Best v. Parkes, 82 Or. 171, 161 P. 255; Thornburg v. Mershon, 216 Iowa 455, 249 N.W. 202; Miller v. Claflin, 12 Colo.App. 192, 55 P. 201.
In view of the record, this Court is not presently in a position to direct the Clerk hereof to certify copies of the papers in the criminal case under Rule 20. If it be desired that certified copies be sent without regard to the rule, the Court need not direct the Clerk to comply with such a request.
The motion and petition will be held under consideration until the United States Attorney of this Court advises what course of proceeding he desires to take in view of this opinion. APPENDIX
In the District Court of the United States for the District of Oregon
United States of America
v.
Henry Clay Tollett and Henry Clay Green Defendants}
No. C-17037
Petition for Instructions
Comes now Lowell Mundorff, Clerk of the United States District Court for the District of Oregon and presents this, his Petition for Instructions herein, and represents and alleges as follows:
I.
On the second day of January, 1948, Edward B. Twining, Assistant United States Attorney filed a praecipe in words and figures as follows, to wit:
‘ In the District Court of the United States for the District of Oregon
United States of America
v.
Henry Clay Tollett and Henry Clay Green, Defendants}
No. C-17037
Praecipe Portland, Oregon, January 2, 1948
Lowell Mundorff, Clerk U.S. District Court, District of Oregon
Please transmit the papers or certified copies of the papers of the file in this case to the United States District Court Clerk for the Eastern District of Oklahoma, Muskogee, Oklahoma, for the use of said Court in the arraignment of defendant Henry Clay Green, in accordance with the provisions of Rule 20 of the Rules of Criminal Procedure.
/s/ Edward B. Twining
Assistant United States Attorney
The signed request of the defendant Henry Clay Green and the United States Attorneys for the Eastern District of Oklahoma and the District of Oregon is attached hereto.'
II.
Attached to said praecipe was a paper entitled ‘ Request for Transfer of Indictment and Agreement to Plead Guilty’ in words and figures as follows, to wit:
‘ In the United States District Court for the District of Oregon.
United States of America,
v.
Henry Clay Green, et al. Defendants.
No. 17037
Indictment for Violation of Section 588b(a) and (b), Title 12 U.S.C.A.
Request for Transfer of Indictment and Agreement to Plead Guilty
Comes now the above named defendant and acknowledges that he received a copy of the indictment filed in the above styled cause and states that he wishes to plead guilty to the charges in the indictment and to waive trial in the District of Oregon wherein said indictment is pending and consents to disposition of the case in the Eastern District of Oklahoma. He, therefore, requests that said case be transferred to the Eastern District of Oklahoma.
/s/ Henry C. Green
Defendant
Witnesses:
/s/ J. S. Cameron
/s/ S.E. Bernard
The United States Attorney for the District of Oregon and the United States Attorney for the Eastern District of Oklahoma hereby approve the transfer of the above styled case from the District of Oregon to the Eastern District of Oklahoma, for a plea of guilty by the defendant above named.
/s/ Henry L. Hess
United States Attorney District of Oregon
(Signature unintelligible)
United States Attorney Eastern District of Oklahoma'
III.
Your Petitioner does not know whether or not the signature appearing upon the Request for Transfer of Indictment and Agreement to Plead Guilty, which purports to be that of Henry C. Green is the signature of the defendant, Henry Clay Green, defendant in the above-entitled criminal action. Your Petitioner does not know whether or not the signature appearing upon the Request for Transfer of Indictment and Agreement to Plead Guilty, and purporting to be that of the United States Attorney for the Eastern District of Oklahoma is the signature of said United States Attorney, or otherwise. Furthermore your Petitioner does not know whether or not the defendant, Henry Clay Green is, or is not now within the Eastern District of Oklahoma, or whether or not it was within said District that said defendant, Henry Clay Green was first apprehended.
IV.
Rule 20 of the Rules of Criminal Procedure referred to in the praecipe hereinabove set out reads as follows, to wit:
‘ A defendant arrested in a district other than that in which the indictment or information is pending against him may state in writing, after receiving a copy of the indictment or information, that he wishes to plead guilty or nolo contendere, to waive trial in the district in which the indictment or information is pending and to consent to disposition of the case in the district in which he was arrested, subject to the approval of the United States attorney for each district. Upon receipt of the defendant's statement and of the written approval of the United States attorneys, the clerk of the court in which the indictment or information is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court for the district in which the defendant is held and the prosecution shall continue in that district. If after the proceeding has been transferred the defendant pleads not guilty, the clerk shall return the papers to the court in which the prosecution was commenced and the proceeding shall be restored to the docket of that court. The defendant's statement shall not be used against him unless he was represented by counsel when it was made.’
V.
Rule 20 of the Rules of Criminal Procedure hereinabove set out is invalid and unconstitutional.
VI.
That under the circumstances hereinbefore set out, your Petitioner is in doubt as to whether or not he is authorized to transmit the papers or certified copies of the papers of the file in this case to the United States District Court Clerk for the Eastern District of Oklahoma.
Wherefore, your Petitioner prays that he be instructed as to whether or not he should transmit the papers or certified copies of the papers of the file in this case to the United States District Court for the Eastern District of Oklahoma.
District of Oregon.} ss:
I, Lowell Mundorff, Clerk of the United States District Court for the District of Oregon, do hereby certify that the foregoing copy of _____ has been compared by me with the original thereof, and that it is a correct transcript therefrom, and of the whole of such original, as the same appears of record and on file at my office and in my custody.
In testimony whereof, I have hereunto set my hand and affixed the seal of said Court, at Portland, in said District, this ___ day of _____
(Seal) Clerk.
United States of America
District of Oregon.} ss:
I, _____ Judge of the District Court of the United States for the District of Oregon, do hereby certify that Lowell Mundorff, who signed the foregoing certificate, is the Clerk of the said District Court of the United States for the District of Oregon, and was such clerk at the time of making and subscribing the said certificate, duly appointed and sworn, and that full faith and credit are due to his official acts. I further certify that the seal affixed to the said certificate is the seal of the said District Court, and that the attestation of said Clerk is in due form of law, and by the proper officer.
In testimony whereof, I hereto subscribe my name, at Portland, in said District, this ___ day of _____
United States District Judge
For the District of Oregon.
United States of America
District of Oregon.} ss:
I, Lowell Mundorff, Clerk of the District Court of the United States within and for the District of Oregon, do hereby by certify that _____ whose name is subscribed to the foregoing certificate, was at the time of subscribing the same, Judge of the District Court of the United States for the District of Oregon, duly commissioned and qualified. And I further certify that I am well acquainted with the handwriting of the said _____ and that the signature to the foregoing certificate is the genuine signature of said _____ United States District Judge aforesaid.
In testimony whereof, I have hereunto set my hand and affixed the seal of said Court, at Portland, in said District, this ___ day of _____
(Seal) Clerk