Bozel v. United States, 9511.
| Decision Date | 14 December 1943 |
| Docket Number | No. 9511.,9511. |
| Citation | 139 F.2d 153 |
| Parties | BOZEL v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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Emmet H. Bozel, in pro. per.
Roy C. Scott, of Cleveland, Ohio (Don C. Miller and Roy C. Scott, both of Cleveland, Ohio, on the brief), for appellee.
Before ALLEN, HAMILTON, and McALLISTER, Circuit Judges.
Appellant, Emmet H. Bozel, appearing here in propria persona was indicted in the United States District Court for the Northern District of Ohio, Eastern Division, June 14, 1939, for violation of U.S.C.A., Title 18, Section 338. The indictment contained three counts and appellant on trial was convicted on all of them. The trial court, on September 15, 1939, sentenced appellant to five years imprisonment on each count, the sentences on counts 1 and 2 being consecutive and the sentence on count 3 being concurrent with those on counts 1 and 2. On January 30, 1943, appellant filed a motion for vacation of the sentences which the trial court denied and from which order of denial this appeal is prosecuted.
Appellant states five alleged grounds for vacation of the sentences:
(1) The first count charged appellant with devising a scheme or artifice to defraud. The scheme was therein particularized and the persons and corporations who were its objects were named. This count charged appellant with placing in the mails at Cleveland, Ohio, a letter addressed to one of the corporations previously named as one of the intended victims. The second and third counts incorporated by reference the particulars of the scheme stated in the first count and each of these counts separately charged appellant with placing in the mails at Cleveland, Ohio, a letter in furtherance of his scheme, each letter being addressed to a different corporation whose name was listed in the first count.
From these facts, appellant insists that the entire indictment charged but one offense and that the trial court was without jurisdiction to impose a sentence for more than one offense, and as the sentences on counts one and two were consecutive that the trial court twice put him in jeopardy for the same offense.
The test for determining whether the offenses charged in one or more counts of an indictment are identical is whether the facts alleged in one, if offered in support of the other would sustain a conviction. Morgan v. Devine, 237 U.S. 632, 639, 35 S.Ct. 712, 59 L.Ed. 1153; Ebeling v. Morgan, 237 U.S. 625, 630, 35 S.Ct. 710, 59 L.Ed. 1151. Where one count requires proof of a fact which the other does not, the offenses charged are not identical. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306; Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489.
The proof of the mailing of the letter to the corporation named in the first count would not sustain a conviction on the second count, and vice versa the mailing of the letter to the corporation named in the second count would not sustain a conviction on the first count. The gist of the offense under the statute in question is the mailing of a letter in the execution of the scheme to defraud. The mailing and the letter itself constitute the corpus delicti. The statute forbids, not the general use of the post office for the purpose of carrying out a fraudulent scheme or device, but the depositing in the post office of a letter or the removal of a letter from the post office in furtherance of a fraudulent scheme. Each letter so removed and each letter so deposited is a separate and distinct violation of the statute. In re Henry, 123 U.S. 372, 8 S.Ct. 142, 31 L.Ed. 174; Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709.
The fact that the first count listed the persons and corporations which appellant's scheme envisioned and included those named in the second and third counts does not lead to the conclusion that the United States intended to charge numerous offenses in the first count nor make the indictment duplicitous. The purpose of naming the persons and corporations in the first count was to designate the names of those injured by the scheme and to set forth the facts which constituted appellant's transgressions.
On November 21, 1934, appellant was convicted and sentenced by the United States District Court at Jacksonville, Florida, for a violation of the Mail Fraud statute (Title 18 U.S.C.A. § 338).
Under the Parole Act (Title 18 U.S.C.A. §§ 724-727) appellant had been released from incarceration at the time of the imposition of the sentences here but there remained unserved fifteen months of his previous sentence. He claims it was the duty of the trial court to have provided in the present sentences that they be concurrent or consecutive with the unserved portion of the earlier sentence and further insists that the trial court failed to take into consideration the fact that his present conviction would, under the Parole Act, require him to finish the service of the old sentence.
Under the Parole Act, if the behavior of defendant warrants, he may be paroled when he has served one-third of his sentence, but the court lacks the power to arrest execution of sentence after it is imposed and defendant has been delivered to the executive officers of the government for its service. The matters of commutation of sentence, pardon, conditional or otherwise, or parole, are purely the province of the...
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