The opinion of the court was delivered by: SHERIDAN
This matter comes before the Court on a hearing held in accordance with the opinion and order of the United States Court of Appeals for the Third Circuit, 289 F.2d 288, which reversed an order of this Court denying the petition of William Vasilick, defendant, for a Writ of Error Coram Nobis.
On May 29, 1942, in the United States District Court for the District of New Jersey, Vasilick was sentenced to a twenty-five year prison term for a bank robbery which took place in New Jersey. While serving this sentence in the United States Penitentiary at Atlanta, Georgia, Vasilick was indicted for the armed robbery of the First-Stroudsburg National Bank, Stroudsburg, Pennsylvania, which occurred on August 5, 1941. During the latter part of October, 1942, Vasilick was brought to the Middle District of Pennsylvania and lodged in the Luzerne County prison. A co-defendant in the Stroudsburg robbery, Raffael Greco, was lodged in the Lackawanna County prison. Vasilick and Greco were arraigned at 2:00 o'clock P.M. on November 4, 1942, for the Stroudsburg robbery.
Vasilick appeared at the arraignment without counsel. The late Judge Albert W. Johnson appointed Joseph J. Walsh, Esq., a member of the Lackawanna County, a Pennsylvania bar, to represent Vasilick. Greco was represented by Anthony A. Calandra, Esq., a member of the New Jersey bar, who had been retained by Greco several months prior to trial. The trial began immediately after the arraignment. On November 12, 1942, the jury returned a verdict of guilty against both defendants. Judge Johnson sentenced Vasilick to a term of twenty-five years, which was to run consecutively to the twenty-five year term imposed by the District Court of New Jersey. The convictions were affirmed. 3 Cir. 1943, 134 F.2d 1023.
In 1955, Vasilick filed a petition for a Writ of Error Coram Nobis which was treated as a motion to vacate, set aside or correct the sentence, as provided under Title 28 U.S.C.A. § 2255. In his petition, Vasilick stated that (1) while enroute from the penitentiary to the Middle District of Pennsylvania, he was not informed of his destination; (2) he was held incommunicado for two weeks prior to trial; (3) his court-appointed counsel was not granted a continuance so that counsel might have reasonable opportunity to prepare for a trial; (4) Vasilick and his co-defendant, Greco, were handcuffed in the presence of the jury during trial, and were escorted to and from the courtroom by Deputy Marshals with drawn guns; and (5) he was not guilty of the Stroudsburg robbery. After hearing, the petition was denied in an opinion
by the late Judge Albert L. Watson.
On appeal, the Court of Appeals vacated the order of Judge Watson and remanded the cause for further proceedings to determine whether Vasilick's court-appointed counsel had sufficient time to prepare a defense. The court found no error in Judge Watson's disposition of the other grounds in the petition.
At the hearing, Mr. T. Harold Campion, then a Deputy Clerk and now the Clerk of this Court, testified that on or about 1:30 o'clock P.M. on November 4, 1942, he was asked by Judge Johnson to recommend a lawyer to represent Vasilick, who was without counsel. Campion told Judge Johnson that Mr. Walsh was in the Clerk's office on some other business. At the request of the Court, Campion went to the Clerk's office and told Walsh that Judge Johnson wanted to see him.
Walsh testified he went into chambers, and Judge Johnson said he wanted him to represent a defendant who was to go to trial in bank robbery case. When Walsh learned that the trial was to take place immediately, he objected strenuously, stating that this was unfair, and he requested a continuance in order to prepare a defense. He argued this point for about half an hour, but Judge Johnson refused to grant the continuance. There was no record of this discussion.
Walsh entered the courtroom at about 2:00 o'clock P.M., approached the bench and at that time Judge Johnson pointed out Vasilick. Walsh made another request for a continuance, but Judge Johnson refused, stating, 'There has been too much delay on this case so far.' There was no record of this discussion. Walsh left the bench, went down to the defense table and introduced himself to Vasilick. This was the first time he had ever seen Vasilick.
According to Walsh there was no record of the discussion between Judge Johnson and him in chambers and in the courtroom because at that time there was no official reporter attached to the court.
Walsh did not make a formal motion for a continuance because of the repeated requests he had made in chambers and at side-bar, all of which had been denied. Walsh said the Government's case was based on the identification of Vasilick and the defense would have been an alibi. Since the robbery had occurred about fifteen months prior to trial, the defendant could not recall where he had been at the time the robbery was committed. Walsh did not have sufficient time to investigate, and he groped his way through the trial, making objections and conducting cross-examinations as best be could.
Mr. Campion corroborated that part of Walsh's testimony about the conversations with Judge Johnson at side-bar. At the time Campion was seated at the Clerk's desk, which was immediately in front of the bench, and heard the conversation between Walsh and Judge Johnson.
The transcript of Vasilick's trial supports parts of the testimony of Campion and Walsh. Pages 1 and 2 indicate that the trial began at 2:00 o'clock P.M. with a reading of the indictment. No pretrial discussions by any counsel are found in the transcript.
The transcript (page 5) shows that just prior to the reading of the indictment against Vasilick, the Assistant United States Attorney asked whether Vasilick wanted court-appointed counsel. The following then appears:
'The Court: I will appoint Mr. Joseph Walsh. * * * I spoke to you out there Mr. Walsh.'
The record offers additional proof that Vasilick was without counsel, that Walsh was appointed counsel shortly before the trial began, and that Judge Johnson had ...