The opinion of the court was delivered by: John E. Miller, District Judge.
On June 1 the defendant filed a motion to vacate judgment and
sentence and to set aside the plea of guilty in this case. The
motion is filed under Title 28, U.S.C.A. § 2255.
At the time the motion was filed, the Judge of the Court was
busy with jury trials in another division and has had no time
prior to the present to consider the motion.
On April 18, 1951, the court, upon the petition of the
defendant, directed the Clerk to furnish to the defendant without
cost to him a certified copy of (1) all docket entries, (2) the
indictment, (3) judgment and commitment, (4) reporter's
transcript of proceedings and (5) order appointing Edward V.
McDonald, Jr., as attorney for defendant.
The motion contains seven paragraphs or allegations upon which
the claim of the defendant is based, and these allegations will
be referred to and discussed by the court in the order as made by
the defendant in his motion.
(1) The defendant complains that he was arrested and confined
on or about August 7, 1950, without due process of law and before
any order or commitment was issued.
The record discloses that on July 24, 1950, Ralph E. Rawlings,
Special Agent of the Federal Bureau of Investigation, filed a
complaint before the United States Commissioner in Fort Smith,
Arkansas, charging the defendant with violation of Title 18,
U.S.C.A. § 659. The complaint alleges that the defendant on or
about July 13, 1950, at Van Buren in the Western
District of Arkansas embezzled with intent to convert to his own
use certain farm produce of the value of $1,902.75, consigned in
interstate commerce from Van Buren, Arkansas, to Sioux City,
Iowa. Warrant was issued on said complaint and the United States
Marshal for the Southern District of Florida executed the same on
August 7 by arresting the defendant. On the same date he was
taken before the United States Commissioner for said District who
issued a temporary commitment authorizing the commitment of
defendant to jail in the event of his failure to execute and file
an appearance bond in the sum of $3,000.
On August 10, 1950, the defendant was taken again before the
said Commissioner for the Southern District of Florida and there,
upon a preliminary hearing, the Commissioner found that there was
probable cause to believe that the offense charged had been
committed and that the defendant had committed it, and bond for
his appearance in the District Court of the United States for the
Western District of Arkansas, Fort Smith Division, was fixed at
the sum of $5,000. Upon his failure to furnish the bond, he was
committed to jail.
On the 14th day of August, 1950, Honorable William J. Barker,
United States District Judge of the Southern District of Florida,
issued a warrant of removal directing that the defendant be
removed to the Western District of Arkansas. This warrant was
executed and the defendant was removed from the Florida District
and delivered to the Western District of Arkansas on August 27,
1950. In the meantime and on August 16 the indictment had been
returned in this District.
(2) and (3) In allegations (2) and (3) the defendant complains
that he was never served with a warrant of arrest and was not
told of the nature of the charges against him, and that he was
held in jail for fourteen days and was denied the advice of an
attorney or consultation with friends.
These two allegations are clearly without foundation as shown
by the documents referred to in the discussion under the first
(4) The defendant alleges that his attorney, Ed V. McDonald,
Jr., had certain documents in his possession which should have
been adduced at the trial and that the documentary evidence
tended to show that the shipment of produce was not actually
stolen as was charged in the complaint.
Omitting the formal parts, the indictment is as follows: "On or
about July 13, 1950, in the Western District of Arkansas, the
defendant Elmer Elsworth (Morgan) embezzled, stole and unlawfully
took and carried away and obtained by fraud and deception 50
bushels of cucumbers; 75 sacks of corn and 396 lugs of tomatoes
having a total value of $1,902.75, the property of Myers
Commission Company of Van Buren, Arkansas, from the motor truck
of said defendant transporting said produce as an interstate
shipment of freight from Van Buren, Arkansas, to Haley-Neeley
Company, Sioux City, Iowa, with intent to convert same to his own
As above stated, the defendant was delivered to the United
States Marshal for the Western District of Arkansas on August 27,
1950, and on September 8 was brought before the court. At that
time there was another indictment pending against him in Criminal
Action No. 4899 charging the defendant with a violation of Title
18, U.S.C.A. §§ 2314 and 2312. The first count in the indictment
charged him with transporting in interstate commerce from
Norfolk, Virginia, to Van Buren, Arkansas, with fraudulent intent
certain property stolen, converted and taken by fraud. A
description of the property is set forth and it is alleged that
the property belonged to W.J. Jasper of Norfolk, Virginia, and
was of a total value of $6,100 and at the time of the
transportation the defendant knew the property to have been
stolen, converted and taken by fraud.
Count 2 charged the defendant with transporting in interstate
commerce, contrary to Title 18, U.S.C.A. § 2312, from Van Buren,
Arkansas, to Madison, Wisconsin, a certain stolen motor vehicle
therein described, the property of W.J. Jasper,