Rogers v. United States, 19445.

• Decision Date: 08 August 1962
• Docket Number: No. 19445.,19445.
• Citation: 304 F.2d 520
• Parties: Clarence D. ROGERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

304 F.2d 520 (1962)

Clarence D. ROGERS, Appellant, v. UNITED STATES of America, Appellee.

No. 19445.

United States Court of Appeals Fifth Circuit.

June 11, 1962.

Rehearing Denied August 8, 1962.

Charles R. Wheeler, Fort Worth, Tex., for appellant.

William L. Hughes, Jr., Asst. U. S. Atty., Fort Worth, Tex., for appellee.

Before TUTTLE, Chief Judge, and RIVES and JONES, Circuit Judges.

RIVES, Circuit Judge.

The indictment, upon all three counts of which Rogers was convicted, charged:

Count 1: "That on or about the 8th day of July, 1961, in Tarrant County, Texas, in the Fort Worth Division of the Northern District of Texas, CLARENCE D. ROGERS did knowingly and unlawfully have in his possession the contents of a letter addressed to G. C. and A. M. Williams, 2921 Lubbock Avenue, Fort Worth, Texas, which letter had been stolen from an authorized depository for mail matter located at 1201 Hurley Street, Forth Worth, Texas, and which letter he knew had been stolen, the said contents being United States Treasury Check No. 4,803,394, dated March 20, 1961, in the sum of $380.51, payable to G. C. and A. M. Williams, 2921 Lubbock Avenue, Fort Worth, Texas. (Title 18, United States Code, Section 1708)."

Count 2: "That on or about the 8th day of July, 1961, in Tarrant County, Texas, in the Fort Worth Division of the Northern District of Texas, CLARENCE D. ROGERS and NELM SILVESTER SWALLOW, for the purpose of obtaining and receiving a sum of money from the United States, did wilfully, knowingly and unlawfully forge United States Treasury Check No. 4,803,394, dated March 20, 1961, in the sum of $380.51, over Symbol No. 3160, payable to G. C. and A. M. Williams, 2921 Lubbock Avenue, Fort Worth, Texas, by forging the endorsement of the payees\' names thereon. (Title 18, United States Code, Sections 495 & 2)."

Count 3: "That on or about the 8th day of July, 1961, in Tarrant County, Texas, in the Fort Worth Division of the Northern District of Texas, CLARENCE D. ROGERS and NELM SILVESTER SWALLOW, with intent to defraud the United States, did utter and publish as true a forged United States Treasury Check, No. 4,803,394, dated March 20, 1961, in the sum of $380.51, over Symbol No. 3160, payable to G. C. and A. M. Williams, 2921 Lubbock Avenue, Fort Worth, Texas, knowing the same to have been forged. (Title 18, United States Code, Section 495 & 2)."

Rogers' pre-sentence report showed that this was his fifth criminal conviction, though two of the earlier convictions occurred more than 20 years before the present conviction. The other two were listed as January 24, 1952, forgery, sentence 3 years, and September 16, 1954, defrauding by check, sentence 2 years. The present offense was alleged to have been committed on July 8, 1961, or nearly seven years after his last previous conviction. Rogers had been in custody on the present charge since August 11, 1961, or for nearly four months before he was sentenced on December 6, 1961 to "imprisonment for a period of five (5) years. on count 1; ten (10) years on count 2, said sentence on count 2 to begin at the end of the service of the sentence on count 1; and ten (10) years on count 3, said sentence on count 3 to begin at the end of the service of the sentence on count 2, making a total of 25 years to be served."

It will be noted that the offenses in all three counts of the indictment concerned a Treasury check in the sum of $380.51. It is not necessary for us to pass on the question not argued by counsel as to whether the sentence to 25 years' imprisonment is within the interdiction of the Eighth Amendment against the infliction of "cruel and unusual punishments."

"Punishment is not `cruel and unusual,\' unless it is so greatly disproportionate to the offence committed as to be completely arbitrary and shocking to the sense of justice. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793; United States v. Rosenberg, 2 Cir., 195 F.2d 583, certiorari denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687."

Kasper v. Brittain, 6 Cir., 1957, 245 F.2d 92, 96.¹

In the absence of other constitutional provision or of statute, this Court has no power to review the length of a sentence within the limits permitted by statute.² We may, however, carefully examine the entire record to determine whether it reveals plain errors affecting substantial rights noticeable under Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A.³

Prior to the trial, Rogers moved the court to grant a severance of defendants, assigning the following among other grounds:

"I.

"That defendant, Clarence D. Rogers and defendant, Nelm Silvester Swallow are diametrically opposed and their interests are not the same in contesting the same. Defendant, Clarence D. Rogers asserts and declares his innocence of the charges now pending against him; and defendant, Nelm Silvester Swallow, has indicated on October 27, 1961, that he intends to, and will, enter a plea of Guilty, and ask for a probated sentence, which, if true, will materially impair the opportunity of defendant, Clarence D. Rogers to have the case against him presented fairly and without prejudice to the jury.

"II.

"Defendant Nelm Silvester Swallow has given a statement to United States officers and officials which implicates defendant, Clarence D. Rogers, which Clarence D. Rogers protests and declares is false and incorrect, but which, on a trial in which both are co-defendants will be read to the jury, and which, though Clarence D. Rogers did not join in will necessarily and severely prejudice him in the eyes of the jury, to such an extent that he cannot obtain a fair and impartial jury trial if both parties are tried at the same time."

On December 6, 1961 Rogers' motion for severance was overruled by the court. The jury was then selected, impaneled and sworn. The following proceedings were then had at the bench, in the presence, but outside the hearing, of the jury:

"Mr. HUGHES (Assistant U. S. Attorney): Your Honor, Mr. Hausenfluck just told me his client is going to plead guilty and he wondered if there was any impropriety in taking that plea before the jury at the same time "THE COURT: I will retire the jury. Is he pleading guilty on just one count?

"MR. HUGHES: Just one count.

"THE COURT: Which count?

"MR. HUGHES: Count III. We will move to dismiss Count II.

"THE COURT: I will withhold sentence until the other case is disposed of. Suppose I ask the jury to retire and of course you can take him on back there to the cell — you won\'t need him sitting here, will you?

"MR. HUGHES: We don\'t want him in here. I thought we might arraign him outside of the presence of the jury.

"MR. HAUSENFLUCK (Counsel for Swallow): Your Honor, he is on bond. Would that bond be good until such time as he is sentenced?

"THE COURT: Yes, I will continue his bond at least until after the trial.

"MR. WHEELER (Counsel for Rogers): At this time, Your Honor, the defendant Clarence Rogers moves for a mistrial on the ground that the announcement of this cannot be concealed from the jury and it will have a prejudicial effect on my case, on my client, Clarence Rogers. I think the Court will see the circumstances of that and should grant the motion for a mistrial.

"THE COURT: Is that your motion?

"MR. WHEELER: Yes, sir.

"THE COURT: I overrule it."

Under our decisions in Schaffer v. United States, 5 Cir., 1955, 221 F.2d 17, 19, 54 A.L.R.2d 820, and Barton v. United States, 5 Cir., 1959, 263 F.2d 894,...