merit. The files and record disclose that petitioner was indicted March 18, 1953; that an order for a warrant of arrest was issued March 23, 1953, and that petitioner was sentenced by this Court on June 17, 1953. The interval between the date of petitioner's arrest and the date on which sentence was imposed was less than three months, which indicates that petitioner was accorded a prompt and speedy trial despite his protests to the contrary.'
Moreover this was an afterthought conceived by the defendant after his conviction and sentence. It was not raised prior to trial and was waived, Petition of Provoo, D.C.Md., 17 F.R.D. 183 (1955).
The motion contains an allegation, 'The petitioner was denied the privilege to confer privately with his Court appointed lawyers.' This was previously raised by Doughty and disposed of in Judge Watson's Opinion of February 20, 1956, as follows:
'Petitioner's reasons in support of his motion for relief set forth in ground (5) are also without merit. The transcript of the proceedings of June 8, 1953, discloses that immediately after counsel was appointed to represent petitioner in this case, the Court suggested that a guard accompany petitioner and his counsel to a room adjoining the courtroom. Neither petitioner nor his counsel registered an objection to such procedure at that time. However, the Court was and is fully aware that a prisoner has the right to consult privately with his counsel, secure in the knowledge that their conversation will not fall upon unauthorized ears. Upon motion of counsel for petitioner, the date fixed for petitioner's arraignment was postponed by the Court from June 8, 1953 to June 16, 1953. The postponement provided petitioner and his counsel with sufficient time in which to privately discuss the case. If they failed to do so, such failure may not be assigned as error on the part of the Court.'
A careful review of the files, including the transcripts of the Court proceedings on June 8, 16 and 17, 1953, leaves no room for doubt as to the correctness of Judge Watson's determination as being equally true as to Finnegan.
The Indictment, under 18 U.S.C. § 1201, charged that the defendant and Doughty did transport in interstate commerce from New York State to Pennsylvania a certain person 'who had theretofore been unlawfully seized, kidnapped, abducted, carried away, and held in a motor vehicle by the said defendants for the purpose, in them, the said defendants, and each of them, of fleeing from the said State of New York after having held up and robbed the said Alvin H. Thiel, Sr.' Petitioner now contends (as Doughty previously did) that the reference to the robbery renders the Indictment defective. In the Opinion of February 20, 1956, Judge Watson correctly held:
'Petitioner contends that the indictment was defective because it charged him with a crime for which he was not tried. It is a well established rule of law that the sufficiency of an indictment may not be attacked in a proceeding under § 2255, unless it is so obviously defective as not to charge an offense under any reasonable construction. Walker v. United States of America, 7 Cir., 1955. 218 F.2d 80. An examination of the indictment discloses that it did set forth fully and adequately that petitioner was charged with the crime for which he was subsequently convicted and, therefore, the indictment may not now be attacked collaterally.'
But even had this been raised before trial, it would have been without merit. Had such reference to the 'purpose' been omitted from the Indictment it might have been held insufficient, United States v. Varner, 7 Cir., 283 F.2d 900 (1961).
The Motion to Vacate and Set Aside Sentence being totally without merit, Order denying the same will be entered.