United States v. Hines

• Decision Date: 18 June 1958
• Docket Number: No. 285,Docket 24677.,285
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Irving HINES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

256 F.2d 561 (1958)

UNITED STATES of America, Plaintiff-Appellee, v. Irving HINES, Defendant-Appellant.

No. 285, Docket 24677.

United States Court of Appeals Second Circuit.

Argued April 16, 1958.

Decided June 18, 1958.

Benson H. Begun, New York City, for defendant-appellant.

Morton J. Schlossberg, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Cornelius W. Wickersham, Jr., U. S. Atty., Brooklyn, N. Y., on the brief), for plaintiff-appellee.

Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.

CLARK, Chief Judge.

The defendant was convicted by a jury on three counts of a four-count indictment which charged him with possessing, forging, and uttering a stolen United States Treasury check in violation of 18 U.S.C. §§ 1708 and 495. The jury acquitted him on the first count, which charged unlawful possession of another such check. He was sentenced to three years on each count, the sentences to run concurrently. Both here and below the defendant was represented by assigned counsel. He charges error only with respect to the conviction on the second count, possessing a stolen check, urging alternatively that the indictment failed to charge him with a violation of 18 U.S.C. § 1708, that there was insufficient evidence to sustain the verdict on this count, and finally that the trial court erred in charging the jury with respect to this offense. When the defendant's counsel filed his brief in this court, the government moved to dismiss the appeal on the ground that the failure to attack the convictions on either count three or four left us with no alternative but to affirm the judgment of the court below. This is said to follow from the imposition of identical concurrent sentences on all three counts. We continued the motion for consideration on the appeal and hence rule on it now.

In numerous cases the Supreme Court has refused to consider on the merits claims of error relating to one or more counts of a conviction where the trial court imposed concurrent sentences and conviction under at least one count was proper. See, e. g., Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed. 2d 321; Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407. Here the defendant makes no claim that his convictions on counts three and four, forging and uttering the check, were erroneous; and the record shows substantial evidence to support these convictions. The doctrine urged by the government originated in Claassen v. United States, 142 U.S. 140, 146, 147, 12 S.Ct. 169, 170, 35 L.Ed. 966. There a jury convicted a defendant on five of eleven counts, and the court sentenced him to six years on a general judgment which made no reference to any of the specific counts. On appeal the Supreme Court only considered the sufficiency of the first count and stated that "* * * it is settled law in this court, and in this country generally, that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error if any one of the counts is good, and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only."

Technically the situation in the Claassen case differs of course from the one at hand. Here the defendant has been convicted and sentenced for three separate crimes; and it is unwarranted to entertain the Claassen presumption that the sentence was on the good count only, even if it is still justified in the light of contemporary circumstances. But well after the decision in Claassen, the Court, without explanation, applied the same rule to a case where the sentences were concurrent, Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542, although it had refused to do so in Putnam v. United States, 162 U.S. 687, 16 S.Ct. 923, 40 L.Ed. 1118. And the Pierce case has been followed in a number of cases, still without any explanation why the Claassen presumption should have any effect where the defendant is convicted of different offenses and separately sentenced to terms of imprisonment on each conviction.

Putting aside, however, what appears to be error in holding the Claassen rule controlling in cases of this sort, the Supreme Court has made it clear that the rule is not a hard and fast one, but rather a matter of discretion. For at least on one occasion it reversed convictions on some counts of a multicount indictment where concurrent sentences had been imposed. Putnam v. United States, supra, 162 U.S. 687, 16 S.Ct. 923. See also Robinson v. United States, 6 Cir., 30 F.2d 25, and United States v. DiCanio, 2 Cir., 245 F.2d 713, certiorari denied DiCanio v. United States, 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79. And even in a Claassen type of case, where a defendant was convicted on two counts and sentenced on a general judgment, the Court, after exhaustively reviewing the English authorities, concluded that it had the power to reverse the conviction on one count, even though conviction on the other was proper. There it proceeded to reverse the general judgment and issued instructions to the lower court to enter judgment on the good count and to proceed on the defective count in conformity with law. Ballew v. United States, 160 U.S. 187, 16 S.Ct. 263, 40 L.Ed. 388.

It is difficult to isolate the circumstances which led the Supreme Court to examine all the counts in some instances and only one count in others. Possibly in the Putnam and Ballew cases the Court suspected that the total sentences would be less if the convictions were shorn of the defective counts. Obviously the Claassen rule, especially as it applies to cases involving concurrent sentences, presumes that a district judge does and should give the same punishment on one-count convictions as he does on multicount convictions, and that a defendant's punishment is no greater so long as he must stay in prison for the same period of time. The validity of this presumption is questionable. See, e. g., Yates v. United States, 356 U.S. 363, 78 S.Ct. 766, 2 L.Ed.2d 837. Moreover, it does not take into account the stigma which attaches to an accused from the conviction of two or more crimes, rather than one, or the practical effect on a prisoner,...