Spirou v. United States

• Decision Date: 12 March 1928
• Docket Number: No. 275.,275.
• Citation: 24 F.2d 796
• Parties: SPIROU v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

24 F.2d 796 (1928)

SPIROU v. UNITED STATES.

No. 275.

Circuit Court of Appeals, Second Circuit.

March 12, 1928.

Henry Amerman, of New York City (J. Bradford Erb, of Chicago, Ill., of counsel), for plaintiff in error.

Charles H. Tuttle, U. S. Atty., of New York City (Alvin McKinley Sylvester and Hubert T. Delany, Asst. U. S. Attys., both of New York City, of counsel), for the United States.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

PER CURIAM.

The defendants pleaded guilty to an indictment which charged Spirou and the several other defendants with violations of sections 37 and 215 of the United States Criminal Code (18 USCA §§ 88, 338). There were 15 counts, separately charging conspiracy to defraud the United States, conspiracy to commit offenses against the United States, and unlawful use of the mails. On November 11, 1927, when the court was about to pass judgment and impose sentence, argument as to the length of the sentence having already been heard, Spirou asked leave to be represented by a different attorney, and to withdraw his plea of guilty, and plead not guilty. The court stated that the substitution of attorneys might be made in the regular way, and that he would thereafter hear counsel on his motion to withdraw the plea of guilty. A motion in arrest of judgment was made and denied. The court then proceeded to impose a sentence of six years' imprisonment, and granted a stay of execution till November 29th.

Thereafter the substitution of attorneys was made, the motion on the plea was heard, and an order denying leave to change defendant's plea was entered. This order was dated November 28th, but was not entered until November 30th. In the meantime Spirou had petitioned for a writ of error, the writ had been granted, citation issued, and all were filed in the District Court on November 28th. The lodgment of the writ in the clerk's office removed the cause, and deprived the District Court of any further jurisdiction. The order entered November 30th, denying the motion, is, therefore, not before us for review. It may be doubted whether such an order is ever reviewable (Whitworth v. United States, 114 F. 302 C. C. A. 8; Billingsley v. United States, 249 F. 331 C. C. A. 9), but, if it be, and the order were properly before us, we should not hesitate to approve the discretion exercised by the court in denying the motion.

The sentence imposed upon Spirou was three years on counts 1 to 8, to run concurrently; three years on counts 9, 10, 11, 13, and 14, to run concurrently, but to run consecutively to the sentence on counts 1 to 8; and two years on counts 12 and 15, to run concurrently, and to run concurrently with the sentence on counts 1 to 8. Counts 1, 2, and 14 charged conspiracy, and the maximum penalty which might lawfully be imposed was two years. It is urged that this error vitiates the entire sentence. It is enough to refer to United States v. Pridgeon, 153 U. S. 48, 62, 14 S. Ct. 746, 38 L. Ed. 631, to show that this contention cannot be maintained. The sentence is void merely for the excess. Dodge v. United States, 258 F. 300, 306 (C. C. A. 2), 7 A. L. R. 1510. In Wechsler v. United States, 158 F. 579 (C. C. A. 2), this court, under similar circumstances, reversed and remanded to the District Court, with instructions to enter a sentence in accordance with the statute. We see no reason, however, why we may not adopt the less cumbersome procedure of correcting the sentence by our own mandate, as was done in Salazar v. United States, 236 F. 541 (C. C. A. 8); Priori v. United States, 6 F.(2d) 575 (C. C. A. 6); Goode v. United States, 12 F.(2d) 742 (C. C. A. 8); Jackson v. United States, 102 F. 473 (C. C. A. 9).

Plaintiff in error attacks the indictment as insufficient in substance in its various counts, and as disclosing a misjoinder of parties and a misjoinder of counts. Having pleaded guilty, Spirou is in the same position in respect to matters reviewable by appeal as though he had been found guilty by verdict of a jury. It is well settled that questions of duplicity and misjoinder cannot be raised for the first time after verdict, by motion in arrest of judgment or writ of error. Morgan v. United States, 148 F. 189 (C. C. A. 8); Connors v. United States, 158 U. S. 408, 411, 15 S. Ct. 951, 39 L. Ed. 1033; United States v. Peterson (C. C.) Fed. Cas. No. 16,037; State v. Hooker, 17 Vt. 658; Bishop, New Crim. Proc. § 442. There remain, therefore, only questions of the sufficiency in substance of the indictment. See Gay v. United States, 12 F.(2d) 433, 434 (C. C. A. 5); Rosen v. United States, 161 U. S. 29, 16 S. Ct. 434, 480, 40 L. Ed. 606....