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UNITED STATES v. MORGAN

June 27, 1951

UNITED STATES
v.
MORGAN.



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.

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 allegation.

(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 use."

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, of ...


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