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UNITED STATES v. KEES

September 29, 1961

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WILLIAM R. KEES, DEFENDANT.



The opinion of the court was delivered by: Juergens, District Judge.

Defendant William R. Kees was sentenced by this Court on November 26, 1951, to a term of fifteen years for having transported in interstate commerce a certain woman having been unlawfully seized and kidnaped by the defendant for immoral purposes.

Having consummated the crime, the defendant fled and was apprehended in the Eastern District of Illinois. On October 30, 1951, subsequent to his apprehension, in open court he declined appointment of counsel, signed a waiver of indictment and consented to be proceeded against by information, and requested, pursuant to Rule 20 of the Federal Rules of Criminal Procedure, Title 18 U.S.C.A., that his case be transferred from the Western District of Missouri to the Eastern District of Illinois. The United States Attorney for the Western District of Missouri filed an information which was then transferred to this Court for disposition.

On November 26, 1951, defendant again appeared in court and again declined the appointment of counsel and advised the Court that he wished to plead guilty to the charge in the information.

Defendant now declares that this Court did not have jurisdiction over him for the reason that he could not waive indictment and consent that an information be filed against him since he was charged with kidnaping, which may be a capital offense, and, therefore, the sentence pronounced, pursuant to the information and his plea, was illegal and should be set aside.

Under the provisions of Rule 20 a defendant arrested in a district other than the district in which an indictment or information was pending against him may state in writing that he wishes to plead guilty or nolo contendere and to waive trial in the district in which the indictment or information is pending and consent to the disposition of the case in the district in which he was arrested, subject, however, to the approval of the United States attorney for each district. If after the proceeding has been transferred, the defendant pleads not guilty, then the proceedings must be returned to the district from whence it came and the transferee court has no authority to proceed under an indictment or information against the defendant. It is only where a defendant enters a plea of guilty that he may be proceeded against in the transferee court under the provisions of Rule 20, and under these circumstances the progress of this case could proceed in one and only one direction. There could be no trial. The action of the defendant and the government precluded a trial. Each, by his action, closed the door to a trial. This being so, the punishment by death was definitely and positively removed from the case.

This defendant was apprehended in the State of Illinois. He requested that disposition of his case be made within the Eastern District of Illinois. In order to effect this transfer, he asked that he be proceeded against by information and waived his right to be proceeded against by indictment. In accordance with his waiver and consent, an information was filed in the United States District Court for the Western District of Missouri and then transferred to this Court for disposition.

Waiver of indictment is provided for by Rule 7, Title 18 U.S.C.A. This rule, together with the other Rules of Criminal Procedure, was adopted by the United States Supreme Court, certified by it to Congress, which added its approval and then promulgated same. Rule 7 provides in pertinent parts as follows:

    "(a) Use of Indictment or Information. An
  offense which may be punished by death shall be
  prosecuted by indictment. An offense which may be
  punished by imprisonment for a term exceeding one
  year or at hard labor shall be prosecuted by
  indictment or, if indictment is waived, it may be
  prosecuted by information. * * * (Emphasis
  Supplied).
    "(b) Waiver of Indictment. An offense which may
  be punished by imprisonment for a term exceeding
  one year or at hard labor may be prosecuted by
  information if the defendant, after he has been
  advised of the nature of the charge and of his
  rights, waives in open court prosecution by
  indictment."

The defendant was advised of his constitutional rights at each stage of the proceedings but persisted in his request that he be permitted to waive the presentment by an indictment and consented that an information might be filed against him.

The charge for which the defendant was sentenced is found in Section 1201, Title 18 U.S.C.A., which provides in pertinent parts as follows:

    "(a) Whoever knowingly transports in interstate
  or foreign commerce, any person who has been
  unlawfully seized, confined, inveigled, decoyed,
  kidnaped, abducted, or carried away and held for
  ransom or reward or otherwise, except, in the
  case of a minor, by a parent thereof, shall be
  punished (1) by death if the kidnaped person has
  not been liberated unharmed, and if the verdict of
  the jury shall so recommend, or (2) by imprisonment
  for any term of years or for life, if the death
  penalty is not imposed." (Emphasis Supplied).

Under the facts of this case, there could be no jury verdict since trial of the cause must be waived in order to proceed under the provisions of Rule 20 and was waived by this defendant, both before and after the transfer was made. Only a plea of guilty may be entered under a Rule 20 proceedings; upon a plea of guilty there, of course, would be no jury verdict; there being no jury verdict, no death penalty could be imposed. The statute, which the defendant violated, prescribes the circumstances and conditions under which the offense is made capital.

To say that an offense is capital or may be a capital offense, it must be possible for the death penalty to be imposed under the facts and circumstances as they exist. In this case the requirements necessary for the imposition of the death penalty were clearly absent for the reason that there was and could be no trial by jury in this district. Accordingly, the case could ...


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