United States v. Melvin Houston Rigdon

Sixth Circuit

United States v. Melvin Houston Rigdon

459 F.2d 379, 1972 U.S. App. LEXIS 9797

CourtCourt of Appeals for the Sixth Circuit

DecidedMay 2, 1972

Docket71-1353

StatusPublished

Cited by38 cases

This text of 459 F.2d 379 (United States v. Melvin Houston Rigdon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Melvin Houston Rigdon, 459 F.2d 379, 1972 U.S. App. LEXIS 9797 (6th Cir. 1972).

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PER CURIAM.

The appellant, Melvin Houston Rig-don, was tried before a jury and found guilty of a violation of 18 U.S.C. § 2113 (a) and (d) (Bank Robbery). On this direct appeal, the appellant challenges the District Court’s denials of his peti[380]*380tions for writs of habeas corpus ad testi-ficandum at government expense pursuant to Federal Rule of Criminal Procedure 17(b). The appellant requested subpoenas be issued for seven witnesses, all of whom were at the time incarcerated in the Federal Penitentiary in Atlanta, Georgia. All seven requests were denied; however, the appellant has appealed only from the denials as to two of the witnesses.

In his affidavit, the appellant stated' only that the witnesses would “testify and verify the whereabouts of the defendant at the time this crime was allegedly committed,” that the testimony of these witnesses was material to his defense, and that he could not safely go to trial without the witnesses named because he could not otherwise account for his whereabouts or establish his innocence.

Federal Rule of Criminal Procedure 17(b) provides:

“The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense.”

Prior to being amended in 1966, this rule placed a far more onerous burden upon a defendant wishing to subpoena witnesses at government expense. However, although the amended rule removed the objectionable compulsory disclosure requirements of the rule, the defendant still must make a showing satisfactory to the District Judge that the presence of the witness is necessary to an adequate defense of his case. In this determination, the District Court is vested with a wide discretion, Welsh v. United States, 404 F.2d 414 (5th Cir. 1968), and “a reviewing court should not reverse unless the exceptional circumstances of the case indicate that defendant’s right to a complete, fair and adequate trial is jeopardized.” Terlikowski v. United States, 379 F.2d 501, 508 (8th Cir. 1967). This discretion is necessary to prevent abuses often attempted by defendants. E. g.: Speers v. United States, 387 F.2d 698 (10th Cir. 1967), cert. denied, 391 U.S. 956, 88 S.Ct. 1864, 20 L.Ed.2d 871 (1968). Compare Findley v. United States, 380 F.2d 752 (10th Cir. 1967) (no abuse) to Hathcock v. United States, 441 F.2d 197 (5th Cir. 1971) (abuse of discretion).

In United States v. Conder, 423 F.2d 904 (6th Cir. 1970), this Court held that the mere allegation that the witnesses would be necessary for “alibi as well as impeachment purposes” was too general a statement to meet the requirements of the rule. The appellant’s allegations here are similarly lacking in particular facts concerning the claimed alibi; they are the broadest of generalities and do not constitute a sufficient averment of facts to satisfy the requirements of Rule 17(b). It is to be noted that at the time of trial, these prisoners were incarcerated in Federal penitentiaries at Atlanta, Georgia, and Marion, Illinois. The Court may consider the expense to the government and more particularly the danger to the public inherent in transporting inmates over these distances. Additional appropriate factors for consideration include the uncontradicted assertion of the government that at least one of the seven prisoners was imprisoned at LaGrange, Kentucky, on the date of the bank robbery and could not possibly know about the appellant’s activities on that date; these facts are reflected by the records of the District Court for the Eastern District of Kentucky, and the District Judge was empowered to take judicial notice of such records. In such circumstances we conclude that denial of the petitions for writs of habeas corpus ad testificandum did not constitute an abuse of discretion.

The judgment of the District Court is affirmed.

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PER CURIAM.

The appellant, Melvin Houston Rig-don, was tried before a jury and found guilty of a violation of 18 U.S.C. § 2113 (a) and (d) (Bank Robbery). On this direct appeal, the appellant challenges the District Court’s denials of his peti[380]*380tions for writs of habeas corpus ad testi-ficandum at government expense pursuant to Federal Rule of Criminal Procedure 17(b). The appellant requested subpoenas be issued for seven witnesses, all of whom were at the time incarcerated in the Federal Penitentiary in Atlanta, Georgia. All seven requests were denied; however, the appellant has appealed only from the denials as to two of the witnesses.

In his affidavit, the appellant stated' only that the witnesses would “testify and verify the whereabouts of the defendant at the time this crime was allegedly committed,” that the testimony of these witnesses was material to his defense, and that he could not safely go to trial without the witnesses named because he could not otherwise account for his whereabouts or establish his innocence.

Federal Rule of Criminal Procedure 17(b) provides:

“The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense.”

Prior to being amended in 1966, this rule placed a far more onerous burden upon a defendant wishing to subpoena witnesses at government expense. However, although the amended rule removed the objectionable compulsory disclosure requirements of the rule, the defendant still must make a showing satisfactory to the District Judge that the presence of the witness is necessary to an adequate defense of his case. In this determination, the District Court is vested with a wide discretion, Welsh v. United States, 404 F.2d 414 (5th Cir. 1968), and “a reviewing court should not reverse unless the exceptional circumstances of the case indicate that defendant’s right to a complete, fair and adequate trial is jeopardized.” Terlikowski v. United States, 379 F.2d 501, 508 (8th Cir. 1967). This discretion is necessary to prevent abuses often attempted by defendants. E. g.: Speers v. United States, 387 F.2d 698 (10th Cir. 1967), cert. denied, 391 U.S. 956, 88 S.Ct. 1864, 20 L.Ed.2d 871 (1968). Compare Findley v. United States, 380 F.2d 752 (10th Cir. 1967) (no abuse) to Hathcock v. United States, 441 F.2d 197 (5th Cir. 1971) (abuse of discretion).

In United States v. Conder, 423 F.2d 904 (6th Cir. 1970), this Court held that the mere allegation that the witnesses would be necessary for “alibi as well as impeachment purposes” was too general a statement to meet the requirements of the rule. The appellant’s allegations here are similarly lacking in particular facts concerning the claimed alibi; they are the broadest of generalities and do not constitute a sufficient averment of facts to satisfy the requirements of Rule 17(b). It is to be noted that at the time of trial, these prisoners were incarcerated in Federal penitentiaries at Atlanta, Georgia, and Marion, Illinois. The Court may consider the expense to the government and more particularly the danger to the public inherent in transporting inmates over these distances. Additional appropriate factors for consideration include the uncontradicted assertion of the government that at least one of the seven prisoners was imprisoned at LaGrange, Kentucky, on the date of the bank robbery and could not possibly know about the appellant’s activities on that date; these facts are reflected by the records of the District Court for the Eastern District of Kentucky, and the District Judge was empowered to take judicial notice of such records. In such circumstances we conclude that denial of the petitions for writs of habeas corpus ad testificandum did not constitute an abuse of discretion.

The judgment of the District Court is affirmed.

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459 F.2d 379, 1972 U.S. App. LEXIS 9797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-melvin-houston-rigdon-ca6-1972.

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