Beland v. United States
| Decision Date | 27 August 1942 |
| Docket Number | No. 10137.,10137. |
| Citation | 128 F.2d 795 |
| Parties | BELAND v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Forrest McCutcheon, of Dallas, Tex., for appellant.
Frank F. Taylor and William P. Fonville, Asst. U. S. Attys., both of Fort Worth, Tex., for appellee.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
Charles Beland was found guilty on counts 16, 18, and 42 of an indictment charging violations of the narcotic laws and a conspiracy. He received a general sentence of five years on counts 16 and 42, and a ten year suspended sentence on count 18. On appeal this court affirmed the judgment as to the conspiracy count 42, reversed the judgment on the other counts, and remanded the case with direction that Beland "be resentenced accordingly". Beland v. United States, 5 Cir., 117 F.2d 958, 960. The Supreme Court denied certiorari 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541.
On November 10, 1941, after the mandate of this court had issued, but before imposition of sentence by the trial court, the United States Attorney for the Northern District of Texas filed an information under 26 U.S.C.A.Int.Rev.Code, § 2557 (b) (7) setting forth that on two previous occasions Beland had been convicted of unlawfully selling morphine, a derivative of opium, in violation of the narcotic laws of the United States. On November 11, 1941, Beland came into court, and having been fully apprised of the allegations of the information and of his right to a jury trial as to the truth thereof, and having been cautioned as to his rights, he acknowledged that he was the person named in the information and that he had been previously convicted as alleged. The court thereupon sentenced Beland to serve a term of seven years in the penitentiary, a term below the maximum prescribed by § 2557 (b) (5) (6) (7). Subdivision 6 of this section provides: "A person who, after having been two times convicted of selling, importing, or exporting, or conspiring to sell, import, or export, opium, * * * derivative, or preparation of opium, * * * again sells, * * * or conspires to sell, import, or export, any of the said narcotic drugs, in violation of the laws of the United States, shall, upon conviction of such third offense, or any offense subsequent thereto, be fined not more than $10,000 or imprisoned in a Federal penitentiary for not more than twenty years, or both, in the discretion of the court, whenever the fact of such previous convictions is established in the manner prescribed in paragraph 7 of this subsection." Paragraph 7 provides for the filing of an information by the District Attorney, and for a jury trial to establish the truth of its allegations if such allegations are not expressly admitted by the defendant.
Beland contends that since his conviction was for a conspiracy the trial court was bound by the mandate of this court to impose a sentence of not more than two years; and that since he had voluntarily surrendered to the United States marshal on November 7, 1941, he had begun serving his sentence, and the trial court was without authority on November 11, 1941, to impose a sentence of more than two years. When this court reversed the judgment on two counts of the indictment and affirmed the judgment on the conspiracy count, we expressed no opinion as to the length of sentence to be imposed. We simply remanded the case with direction to resentence the defendant; that is, resentence him in accordance with the Constitution and laws of the United States. His surrender to the marshal in no wise affected the trial court's authority to sentence him in accordance with law, and this is especially true since § 2557 (b) (7) provides for the filing of an information and proceedings upon it "after conviction and before or after sentence."
The appellant attacks the constitutionality of the invoked section on the ground that his previous convictions were alleged and set forth in an information and not in an indictment, and that such method of procedure was violative of the Fifth Amendment to the Constitution that, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."
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