EKBERG v. UNITED STATES
No. 4314
Circuit Court of Appeals, First Circuit
March 25, 1948
Philip F. Herrick, of San Juan, P. R., U. S. Atty. (Francisco Ponsa Feliu, of San Juan, P. R., Asst. U. S. Atty., on the brief), for appellee.
Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
This is an appeal from an order denying a motion under
“Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or emрloyee acting under the authority of the United States, or any department, or any officer of the Government thereof, or under the authority of any corporation owned or controlled by the United States, and shall take upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any department, or any officer of the Government thereof, or any corporation owned or controlled by the United States, any money, paper, document, or other valuable thing, shall be fined not more than $1,000 or imprisoned not more than three years, or both.”
The indictment was in three counts, the material portions of which are set forth in the footnote.1
In the first count it was charged that Ekberg, with intent to defraud one Manuel Vazquez Diaz, pretended to be an officer and employee of the United States Engineer Office of the United States War Department, and did take upon himself to act as such officer and employee, in that he called by telephone the said Manuel Vazquez Diaz and falsely pretended to him that he was such an officer and employee of the United States. In the second count it was charged thаt Ekberg, with intent to defraud and in the afore-mentioned pretended character, demanded a typewriter from the said Manuel Vazquez Diaz. The third count was the same as the second, except that in place of alleging a demand it charged that Ekberg did “obtain” a typewriter from Manuel Vazquez Diaz. In each count the time and place of the offense were alleged to be February 9, 1942, in San Juan, Puerto Rico.
Upon arraignment, and being then represented by counsel appointed by the court, Ekberg entered a plea of guilty to the indictment. Thereupon, on April 24, 1942, the court sentenced him to imprisonment for a term of two years and one month on each of the three counts; sentences on the second and third counts to run concurrently, but consecutively to the sentence imposed on the first count. Further, the court sus-
After Ekberg had completed the service of his sentence under count 1, and had entered upon his period оf probation, he was taken into custody and brought before the court below on the charge of having violated the conditions of his probation. At the hearing on revocation of probation, Ekberg, being again represented by court-appointed counsel, pleaded guilty to the charge. By order on December 2, 1946, the district court revoked the probation, and committed Ekberg to prison for service of the concurrent sentences of two years and one month theretofore imposed on the second and third counts of the indictment. Ekberg is now in the federal penitentiary at Leavenworth, Kansas, on this commitment.
On June 11, 1947, Ekberg filed in the court below a motion for correction of sentence under
On October 23, 1947, Ekberg filed another motion for correction of sentence. This motion, while more elaborate, is now conceded to have raised in substance the same question that had been presented in the earlier motion. At a hearing held October 31, 1947, the motion was opposed by
an Assistant United States Attorney. Ekberg, again, was not present or represented by counsel. The court on the same day denied the motion. Notice of appeal from this order of denial was filed November 7, 1947.2
The United States filеd a motion to dismiss the appeal as untimely. We withheld consideration of the motion until argument on the merits, at which the United States was represented by the United States Attorney and appellant by counsel appointed by this court.
We have concluded, not without some hesitation, that the motion to dismiss should be denied.
An order denying a motion to correct an illegal sentence is a “final decision” within the meaning of
So much the government concedes. But in its motion to dismiss it stresses the point that Ekberg‘s first motion for correction of sentence, raising the same question of law, was denied by order entered June 13, 1947, and that no appeal was ever taken from such order. The time for appealing having expired, it is contended that appellant cannot extend the time by indirection, by the expedient of filing a second motion to the same effect and having the court enter a second order of denial. Sosa v. Royal Bank of Canada, 1 Cir., 1943, 134 F.2d 955, cited by the government in this connection, is not controlling. There, the district court had entered an order dismissing a complaint for failure to state a cause of action. After the time for appealing had elapsed, the court by inadvertence signed and entered another order in the same terms dismissing the complaint. We held that such reentry of the order of dismissal could not operate to extend the statutory period for appeal. The situation would have been closer to the present case, though not wholly on all fours, if the plaintiff in the Sosa case, after his first complaint had been dismissed, had filed an identical second complaint, and the defendant, without relying on the defense of res judicata, had moved to dismiss on the merits; we would suppose that an appeal could be taken from a judgment dismissing this second complaint.
Since under
a meritorious one. If convinced of its previous error, the sentencing court should have continuing power to correct its own illegal sentence. This is a much more appropriate remedy than remitting the prisoner to a petition for habeas corpus in the district court wherein he is confined. See Berkoff v. Humphrey, 8 Cir., 1947, 159 F.2d 5. The rule of res judicata is not in all strictness applied in habeas corpus cases. A judge is not precluded from entertaining a petition for habeas corpus and disposing of it on the merits, even though the same point had been ruled adversely to the petitioner in a previous habeas corpus proceeding. Salinger v. Loisel, 1924, 265 U.S. 224, 230, 231 (1924); Johnston v. Wright, 9 Cir., 1943, 137 F.2d 914; United States ex rel. Gregoire v. Watkins, 2 Cir., 1947, 164 F.2d 137, 138. See Price v. Johnston, 9 Cir., 1947, 161 F.2d 705, certiorari granted, 1947, 331 U.S. 804, 67 S.Ct. 1757. A fortiori a ruling by the trial judge, at an earlier stage of the same criminal proceeding, on a motion to correct sentence, does not operate аs res judicata.4 Ekberg‘s second motion to correct sentence was therefore in order; and though we have found no controlling precedent on the precise point, the analogies sustained the conclusion, and we so hold, that the order denying this second motion was appealable within the time limited by
Coming then to the merits, we think appellant is entitled to relief.
The problem of multiple offenses under
(1) It is well settled that the same act or transaction may constitute two distinct federal offenses, and justify findings of guilty on two counts and separate sentences thereon tо run consecutively, if each offense as defined by Congress requires the proof of some fact or element not required to establish the other. Thus under a stat-
(2) Another common situation is where the legislature has defined two distinct offenses, but one offense requires proof of all the facts or elements necessary to establish the other, plus something more—in other words, a greater offense including a lesser. Thus, under
In all such cases discussed in the preceding paragraph, sentence may be imposed on the more inclusive count only, or
The Act now in question,
“(1) With intent to defraud either the United States or any person, the falsely assuming or pretending to be an officer or employee acting under the authority of the United States, or any department, or any officer of the Government thereof, and taking upon oneself to act as suсh.
“(2) With intent to defraud either the United States or any person, the falsely assuming or pretending to be an officer or employee, etc., and in such pretended character demanding or obtaining from any person or from the United States, or any department, or any officer of the government thereof, any money, paper, document, or other valuable thing.”
Later cases, citing United States v. Barnow, have said that the section “creates and describes two [italics added] separate and distinct offenses“. Pierce v. United States, 6 Cir., 1936, 86 F.2d 949, 951; Baas v. United States, 5 Cir., 1928, 25 F.2d 294; Graham v. Squier, 9 Cir., 1944, 145 F.2d 348, 349; Elliott v. Hudspeth, 10 Cir., 1940, 110 F.2d 389, 390. And see United States v. Lepowitch, 1943, 318 U.S. 702, 704, 705 (1943). In none of these cases was it necessary to the decision to break down the elements dеscribed in the second clause of the section for the purpose of determining whether demanding a valuable thing constitutes an offense separate and distinct from the offense of obtaining a valuable thing. Since, in the pretended character described, one may “demand” a valuable thing without obtaining it, or may “obtain” a valuable thing without previously having demanded it, we think it clear, under the accepted test, that demanding and obtaining are separate and distinct offenses. See Burton v. United States, supra, where an Act making it criminal to “receive, or agree to receive, any compensation“,
It is clear, also, that the first clause of
In the light of the foregoing discussion, it now becomes pertinent to look more sharply at the three counts in the indictment, which we have set forth in footnote 1, supra.
Counts 2 and 3 adequately charge two separate and distinct offenses under the second clause of
Count 1 was obviously meant to be laid under the first clause of
We say that the “in that” сlause vitiated the count because it treated the defendant‘s pretense of being an officer as satisfying the statutory requirement that the defendant must “take upon himself to act as such“. This is clearly not enough. As stated in United States v. Barnow, supra, 239 U.S. at page 77: “But to ‘take upon himself to act as such’ means no more than to assume to act in the pretended character. It requires something beyond the false pretense with intent to defraud; there must be some act in keeping with the pretense ***” So, in Baas v. United States, supra, 25 F.2d at page 295, the court said: “It was not sufficient to charge that the accused falsely pretended to be an officer оf the United States with intent to defraud a named person. It was necessary to charge in addition that the accused did something in his pretended character, or at least demanded something of value while so pretending. This is a matter of substance and not of form.”
Evidently the government was not prepared to prove any act “in keeping with the pretense” of being a public official other than the defendant‘s acts on February 9, 1942, of demanding and obtaining from Manuel Vazquez Diaz a valuable thing, to wit, a portable Royal typewriter, as charged in counts 2 and 3. What the pleader did was to duplicate in сount 1 part of the factual allegations which went to make out the complete offenses charged in counts 2 and 3; but count 1, for the reason stated, failed to charge an offense separate and distinct from the offenses set forth in the other two counts, in fact, failed to charge any offense at all. Therefore, the court should not have imposed a separate sentence on count 1, and the time which appellant spent in the penitentiary under that sentence becomes legally referable to the concurrent sentences imposed on counts 2 and 3. Seе Holbrook v. United States, supra, 8 Cir., 1943, 136 F.2d 649, 652; Costner v. United States, supra, 4 Cir., 1943, 139 F.2d 429, 433; Dimenza v. Johnston, 9 Cir., 1942, 130 F.2d 465; Garrison v. Reeves, 8 Cir., 1941, 116 F.2d 978. Since the sentence on the first count, which he has fully served, was for the same length of imprisonment
It is true that the judge could lawfully have originally sentenced appellant to a maximum of three years on each of counts 2 and 3, to run consecutively, because, as above pointed out, those two counts stated separate and distinct offenses. Hence, it might be suggested that the district court, in the course of striking out the invalid sentence on count 1, should now be аllowed to resentence appellant on counts 2 and 3. But it is quite plain that merely because the trial judge could have imposed consecutive sentences on counts 2 and 3 equal to the aggregate sentences which he actually imposed on invalid count 1 and valid counts 2 and 3, “the matter may not be treated as though he had done so.” Miller v. United States, supra, 2 Cir., 1945, 147 F.2d 372, 374. It is too late to go back and start over again. The concurrent sentences on counts 2 and 3 were valid as originally imposed. Disregarding the invalid sentence under count 1, and attributing the time served to the sentences under counts 2 and 3, as must be done, it will be seen that appellant has fully paid the penalty, exacted by society through the sentence of a competent court, for the only offenses of which he was properly convicted. It would trench upon the double jeopardy clause if appellant were now faced with the possibility of an increase of the sentences imposed upon counts 2 and 3. See Ex parte Lange, 1873, 18 Wall. 163, 176 (1873); In re Bradley, 1943, 318 U.S. 50; Bozza v. United States, 1947, 330 U.S. 160, 167, note 2 (1947); Holbrook v. United States, 8 Cir., 1943, 136 F.2d 649, 652; King v. United States, 1938, 69 App.D.C. 10, 98 F.2d 291, 294, 295 (1938).
The order of the District Court entered October 31, 1947, is vacated and the case is remanded to that court with direction to enter an order vacating the sentence imposed on count 1 and crediting the time served thereon to the concurrent sentences imposed on counts 2 and 3, and to take further appropriate proceedings in conformity with this opinion. Since time is of the essence to afford appellant any good from our favorable judgment, we shall issue our
mandate forthwith instead of withholding it for the usual period of thirty days, as provided in our
WOODBURY, Circuit Judge.
I concur in the result. I agree, although not without hesitation, that the government‘s motion to dismiss the appeal as untimely ought to be denied. And I agree with my associates’ analysis of
In the first place I think it is too late at this stage of the proceedings in the case to consider the question of the sufficiency of the wording of any part of the indictment, particularly count 1. In the second place I think it very doubtful indeed that the phraseology of count 1 is not adequate to charge the offense defined in the first clause of the statute.
In United States v. Barnow, 239 U.S. 74, 80, the Supreme Court said: “It is the aim of the section not merely to protect innocent persons from actual loss through reliance upon false assumptions of Federal authority, but to maintain the general good repute and dignity of the service itself.” The second clause of this sentence was quoted by the Supreme Court with approval in United States v. Lepowitch, 318 U.S. 702, 704, decided in 1943, and in the latter case the court also said, again quoting the Barnow case, “Government officials are impersonated by any persons who ‘assume to act in the pretended character‘.” And then the court in the Lepowitch case goes on immediately to say “The most general allegation of impersonation of a government official, thеrefore, sufficiently charges this element of the offense.” In view of this language and of the allegation in the “in that” clause of count 1 that the accused in his pretended character called Diaz on the telephone, I would hesitate a long time to say that the count as drawn does not sufficiently charge any offense under the statute. It seems to me that an “act in keeping with the pretense” and not merely a “false pretense with intent to defraud“, to again quote the
But I see no occasion in the case at bar to consider the sufficiency of the language of the indictment at all. In my view the issue presented is adequately disposed of by pointing out that “If all the defendant has done by way of acting as such pretended official is to demand or obtain a valuable thing, it cannot be supposed that Congress intended to authorize the imposition of separate sentences, to run consecutively, upon a count charging the offense described in the first clause of
HARRINGTON v. EMPIRE CONST. CO.
No. 5704.
Circuit Court of Appeals, Fourth Circuit.
April 1, 1948.
Notes
Second count: “*** Heretofore, to wit, on or about February 9, 1942, in the city of San Juan, Puerto Rico, in the District of Puerto Rico аnd within the jurisdiction of this Court, James Nels Ekberg, hereinafter referred to as the defendant, did, knowingly, unlawfully, willfully and feloniously, and with intent to defraud one Manuel Vazquez Diaz, falsely assume and pretend to be an officer and employee acting under the authority of the United States, to wit, an officer and employee of the United States Engineer Office of the United States War Department, and in such pretended character the defendant did, unlawfully, willfully, knowingly and feloniously, demand from the said Manuel Vazquez Diaz a certain valuable thing, to wit, a portable Royal typewriter. ***”
Third count: “*** Heretofore, to wit, on or about February 9, 1942, in the city of San Juan, Puerto Rico, in the District of Puerto Rico and within the jurisdiction of this Court, James Nels Ekberg, hereinafter referred to as the defendant, did, knowingly, unlawfully, willfully and feloniously, and with intent to defraud one Manuel Vazquez Diaz, falsely assume and pretend to be an officer and employee acting under the authority of the United States, to wit, an officer and employee of the United States Engineer Office of the United States War Department, and in such pretended character the defendant did, unlawfully, willfully, knowingly and feloniously, obtain from the said Manuel Vazquez Diaz a certain valuable thing, to wit, a portable Royаl Typewriter. ***”