Amer v. United States

• Decision Date: 05 December 1966
• Docket Number: No. 18215.,18215.
• Citation: 367 F.2d 803
• Parties: Harold Ray AMER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

367 F.2d 803 (1966)

Harold Ray AMER, Appellant, v. UNITED STATES of America, Appellee.

No. 18215.

United States Court of Appeals Eighth Circuit.

November 9, 1966.

As Amended December 5, 1966.

Kenneth K. Simon, Kansas City, Mo., submitted printed brief without oral argument.

Bruce C. Houdek, Asst. U. S. Atty., Kansas City, Mo., for appellee. F. Russell Millin, U. S. Atty., Kansas City, Mo., was with him on the brief.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT and LAY, Circuit Judges.

VOGEL, Chief Judge.

Defendant-appellant, Harold Ray Amer, was charged in a four-count indictment with transporting or causing to be transported four forged checks in interstate commerce in violation of 18 U.S. C.A. § 2314. Each forged check was the basis of one count. Upon appellant's plea of guilty to all four counts, he was sentenced to a term of imprisonment for one year and one day upon each count, such sentences to be served consecutively commencing upon the expiration of a prior state sentence. Motion was made by appellant, pursuant to 28 U.S.C.A. § 2255, to vacate or correct an illegal sentence wherein he claimed that the four checks traveled simultaneously in interstate commerce and hence must be viewed as one unit of prosecution rather than four. A hearing was held by Judge Hunter upon the motion and the findings being adverse to appellant, the petition was denied. This appeal followed. The sole ground urged is that the court erred in finding that no two checks traveled simultaneously in interstate commerce and therefore erred in denying appellant's motion to vacate or correct sentence. We affirm.

Appellant Amer had, on August 28, 1956, passed four forged checks, each in a different business establishment, three in Leavenworth, Kansas, and one in Kansas City, Kansas. All of these checks were drawn on the Baltimore Bank of Kansas City, Missouri, and hence for final payment they would have to clear through the drawee bank, which necessitated their movement through banking or business channels across state lines. Upon negotiation in Leavenworth, the four forged checks did not follow the same pattern of interstate transport and clearance. Exhibit 1, which is the basis of Count II, was transported from Leavenworth, Kansas, to Kansas City, Missouri, by private messenger. Exhibit 2, which pertains to Count III, was mailed by the original recipient of the check in Leavenworth directly to its bank in Kansas City, Missouri. Exhibits 3 and 4, upon which Counts IV and I are respectively based, were deposited by the original recipients of the forged checks in a Leavenworth bank which in turn transmitted the checks by mail for clearance in Kansas City, Missouri.

Appellant claims that since Exhibits 2, 3 and 4 traveled by United States mail between Leavenworth and Kansas City, Missouri, and since there are only two principal night mail trains over this route, at least two of the checks must have traveled simultaneously in one of the trains. He says that because of this simultaneous transport of at least two of the checks, there would have been an absolute maximum of three prosecutable offenses under 18 U.S.C.A. § 2314 and that sentence upon one of the counts is therefore illegal and should have been vacated.

Appellant was not responsible for the actual interstate transportation of the forged checks but by negotiating out-of-state forged securities in Kansas appellant caused these securities to be transported in interstate commerce in violation of 18 U.S.C.A. § 2314. It is clear that causing transportation of forged securities in interstate commerce by negotiation is a violation of the Code provision which will serve as the basis for prosecution and no personal transportation or mailing of the securities by the defendant need be shown. Pereira v. United States, 1954, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435; Halfen v. United States, 10 Cir., 1963, 324 F.2d 52, 55. The essence of appellant's claim here is that if by some happenstance the securities he negotiated moved simultaneously in the stream of interstate commerce, there is a merger of transactions and only one prosecutable offense results. It has been clear since Bell v. United States, 1955, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905, that several criminal offenses cannot be carved out of what is in fact one transaction. See, e. g., Castle v. United States, 1961, 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75; Strickland v. United States, 8 Cir., 1964, 325 F. 2d 970; Kessell v. United States, 8 Cir., 1962, 303 F.2d 563. Three of the above-cited cases — Castle,Strickland and Kessell — involved the interstate transportation of forged securities in violation of 18 U.S.C.A. § 2314. Appellant places principal reliance in these cases, claiming they establish that where several forged checks or money orders travel simultaneously in interstate commerce there is but one violation of 18 U.S.C.A. § 2314 and they thus control the permissible units of prosecution in the instant case. The precise holding of Castle and Kessell was that where defendant retained within his possession and personally transported forged securities in interstate commerce, upon...