Before SCHNACKENBERG, CASTLE, and KILEY, Circuit Judges.
This is a Motion to Correct Sentence of fifteen years for kidnapping a woman and transporting her in interstate commerce for immoral purposes in violation of the Federal Kidnapping Act, 18 U.S.C. § 1201.*fn1 The District Court denied the motion and petitioner has appealed. The Government concedes that we may treat petitioner's motion as a Motion to Vacate Judgment and Sentence under 28 U.S.C. § 2255.
Petitioner Kees was arrested in the Eastern District of Illinois under a warrant issued in Kansas City, Missouri. October 30, 1951, being advised of his right to counsel, he waived in writing prosecution by indictment and consented to prosecution in Illinois by information "filed" in Missouri. November 13, 1951 he waived in writing his "right to trial" in Missouri, stated his "desire to plead guilty," and consented to disposition of the cause in the Eastern District of Illinois. November 26, 1951, Kees pleaded guilty to the information and "again declined the appointment of counsel." It is admitted his victim was not "liberated unharmed."
The only question is whether the court was without jurisdiction to try Kees by information.
Kees argues that the offense charged against him is a capital offense, which under the fifth amendment to the Constitution of the United States must be presented by indictment of a grand jury.*fn2 The Government contends that the information cannot be said to charge a capital offense because by defendant's written consent to transfer and desire to plead guilty under Fed.R.Crim.P. 20, 18 U.S.C.A,*fn3 punishment by death under the Kidnapping Act was removed from the case since there could be no jury verdict recommending it, and that the waiver of the indictment was therefore valid under Fed.R.Crim.P. 7(a), 18 U.S.C.A.*fn4
Kees relies solely upon Smith v. United States, 360 U.S. 1, 79 S. Ct. 991, 3 L. Ed. 2d 1041 (1959). There, Smith waived indictment, counsel and venue, pleaded guilty to the violation of 18 U.S.C. § 1201 charged in the information, and was sentenced to fifteen years in prison. The decisive question on review of denial of relief under § 2255, was "whether petitioner's alleged violation of the Kidnapping Act had to be prosecuted by indictment." The conviction was reversed on the ground that the court lacked jurisdiction to proceed by information in a capital case.
The Smith case did not involve Rule 20. The Government there claimed that because the Act created two offenses, the question for the court required examination of the evidence as to whether the victim was "released unharmed"*fn5 to determine whether the offense was capital; and that the mere filing of the information eliminated the capital element. The court stated that the right given in the fifth amendment is "substantial" and "may be waived * * * only in those proceedings which are noncapital." It stated further: The question whether the offense charged is capital must be decided before trial. The Federal Kidnapping Act creates a single offense, and a charge of its violation is a charge of an offense which may be punishable by death. Fed.R.Crim.P. 7(a) must be construed strictly to protect "those accused of one of our most serious crimes" against "summary treatment."
A careful reading of the Smith case persuades us that its rule extends to the factual situation before us. The Supreme Court made its decision on the information itself, unaffected by the trial that followed:
"When an accused is charged * * * with transporting a kidnapping victim across state lines, he is charged and will be tried for an offense which may be punished by death. * * * when the offense as charged is sufficiently broad to justify a capital verdict, the trial must proceed on that basis, * * *." 360 U.S. 1, 8, 79 S. Ct. 991, 996.
This impels the conclusion that Kees was charged with a capital offense because the charge against Kees*fn6 is as broad as the charge made against Smith.*fn7 The invocation of Rule 20 does not preclude this conclusion, just as the evidence in the Smith case did not preclude the Supreme Court's decision. The charge against the defendant is controlling.
Because we conclude that the offense charged was a capital offense, we decide that Rule 7(a) gives no support to the District Court's assumption of jurisdiction in this case. We hold that the court had no jurisdiction to try the alleged violation of the Kidnapping Act by information.
In this appeal, prosecuted in forma pauperis, we appointed Mr. Charles R. Purcell, Jr., a member of the Illinois Bar, to represent petitioner. We thank him for this able and dedicated service.
The order denying petitioner's motion is reversed and the cause remanded with directions to vacate the judgment and sentence under 18 U.S.C. § ...