152 F.2d 959 | 10th Cir. | 1946
This is an appeal from an order of the United States District Court for the District of Kansas denying discharge in habeas corpus proceedings.
Petitioner was tried and convicted upon an indictment containing eight counts charging violations of the Mail Fraud Statute. Section 215 of the Criminal Code, 35 Stat. 1130, 18 U.S.C.A. 338. Each of the counts charged petitioner with having devised a continuing scheme or artifice to defraud persons named in the indictment by the sale, recordation and delivery of oil and gas lease assignments on lands owned by the State of New Mexico, and the separate use of the mails in execution thereof. Petitioner was sentenced to five years imprisonment on the first count and five years on the second, to run consecutively; and, five years in each of the other counts, to run concurrently with the first and second counts, or a total of ten years.
On appeal this court affirmed Mitchell v. United States, 126 F.2d 550, 554, after having reversed a former conviction for the alleged fraudulent use of the mails, on the grounds that the proof showed the scheme, as laid in that indictment, had been fully consummated before the alleged mailings. Mitchell v. United States, 118 F.2d 653. After entering upon the service of his sentence petitioner moved to vacate the judgment, alleging that since the indictment charged a continuous scheme to defraud the several counts constituted but one offense for which he could be sentenced for a maximum term of five years. We affirmed the judgment of the trial court denying the motion to vacate, holding that since the use of the mails was the gist of the offenses charged, the continuing scheme constituted a separate and distinct crime each time the mails were used. Mitchell v. United States, 142 F.2d 480.
By this proceedings in habeas corpus petitioner seeks to again impeach the validity of the indictment on the theory that upon its face the scheme alleged had been fully consummated and completed before the mails had been used. On his direct appeal from the judgment in this case petitioner contended that the proof showed-the mailings, charged in the indictment, occurred after the alleged scheme had terminated. We held, however, that the proof was amply sufficient to support the allegations to the effect that the continuing scheme contemplated the use of the mails in execution thereof and that the mails were so used. Certainly if the indictment is not vulnerable to attack on appeal it is invulnerable when, as here, it is collaterally attacked on the same grounds in a habeas corpus proceedings. See Baker v. Hunter, 10 Cir., 142 F.2d 615; Hudspeth v. Mosheik, 10 Cir., 94 F.2d 382. See also Rosenbloom v. Hunter, 10 Cir., 143 F.2d 673.
Petitioner contends, however, that the supervening decision of the Supreme Court in Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 151, 157 A.L.R. 406, re
The judgment is affirmed.