Boerngen v. United States, 20111.
| Decision Date | 07 January 1964 |
| Docket Number | No. 20111.,20111. |
| Parties | Edward L. BOERNGEN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Benjamin D. Lucas, San Antonio, Tex., for appellant.
Harry Lee Hudspeth, Asst. U. S. Atty., San Antonio, Tex., for appellee.
Before HUTCHESON, RIVES and GEWIN, Circuit Judges.
This appeal is from three judgments of conviction entered on pleas of guilty and from the denial of a motion for new trial as to each judgment. The motions for new trial raised for the first time the defense of insanity. The case was submitted in this Court on February 21, 1963, and its decision was delayed to await the decision in Carter v. United States of America, 5 Cir., 314 F.2d 386, argued en banc. The judgment in that case has now been affirmed by an evenly divided court.
All of the offenses of which the defendant was convicted were violations of Title 18, United States Code, § 2314; that is, causing forged checks to be transported in interstate commerce. In the district court the three cases were numbered 22146, 22198 and 22222. No. 22146 began as an eight-count indictment in the Southern District of California, each of the counts charging that the defendant caused to be transported in interstate commerce a forged check, the checks varying in amount from $91.21 to $199.29.
The defendant was arrested in the Western District of Texas and, after receiving a copy of the indictment, filed his consent under Rule 20, Fed.R.Crim. P., for the transfer of the case from the Southern District of California to the Western District of Texas so that he might enter a plea of guilty.
Case No. 22198 was begun by an information filed in the Western District of Texas, charging that the defendant caused to be transported in interstate commerce two forged checks, one in the amount of $75.00 and the other in the amount of $36.89.
Case No. 22222 was originally commenced by information filed in the Northern District of Georgia, charging that the defendant caused to be transported in interstate commerce a forged check in the amount of $175.00. In that case, also, the defendant filed his consent under Rule 20, Fed.R.Crim.P., for the case to be transferred from the Northern District of Georgia to the Western District of Texas in order that the defendant might plead guilty in the latter court.
The defendant and his court-appointed counsel appeared in open court in the Western District of Texas on January 2, 1962, at which time the defendant entered pleas of guilty in each case and on each count. The transcript of the testimony shows that the court meticulously complied with Rule 10, Fed.R.Crim.P., and there is no contention to the contrary.
When the court came to impose sentence, it first called on the defendant's counsel as to whether he had anything to say on behalf of the defendant, to which he replied: "No, sir, other than he spent a considerable amount of time in jail, as Your Honor knows." Pursuant to Rule 32, Fed.R.Crim.P., the court then asked the defendant if he wished to say anything in his own behalf, to which the defendant first replied in the negative, and then, after the court read to him a part of the presentence report showing that he had passed a substantial number of forged checks in Las Vegas, New York City, San Francisco, Miami and Los Angeles, as well as in the State of Texas, the court asked whether that was a correct statement and the defendant replied, "I believe so, sir." Later the court again inquired from the defendant: "You say there's nothing you wish to say to me now before I sentence you?" The defendant then informed the court that after he had gotten in trouble and while he was a fugitive from justice, he had been to see a psychiatrist in the Summer of 1961, a Dr. Weinberger in New York,
The court then sentenced the defendant to 10 years' imprisonment on the first four counts in case No. 22146, and to another 10 years' imprisonment on the last four counts in that case, to run consecutively; that is, to begin to run on the completion of the sentence imposed on the first four counts. In case No. 22198 the court sentenced the defendant to 10 years on the two counts generally, to run concurrently with the sentence imposed on the last four counts in case No. 22146. In case No. 22222 the court sentenced the defendant to 10 years to run concurrently with the sentence imposed under the first four counts in case No. 22146. The sentences were imposed on January 2, 1962. On January 12, 1962, appearing by different counsel whom the court later appointed...
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...10 See Blockburger v. United States, 284 U.S. 299, 305, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (quoted infra note 25); Boerngen v. United States, 326 F.2d 326, 329 (5th Cir. 1964); cases cited infra note 11 72 Stat. 845 (1958). 12 320 F.2d at 672, n. 4; Public Law No. 86-624, § 13(c), July 12, 1......
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