Bryant v. United States

• Decision Date: 20 May 1959
• Docket Number: Crim. No. 8785.
• Parties: George Harding BRYANT, Vance W. Heideman, and Stanley V. Kessel, Petitioners, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of South Dakota

173 F. Supp. 574

George Harding BRYANT, Vance W. Heideman, and Stanley V. Kessel, Petitioners, v. UNITED STATES of America, Respondent.

Crim. No. 8785.

United States District Court D. North Dakota, Southeastern Division.

May 20, 1959.

George Harding Bryant, Vance W. Heideman and Stanley V. Kessel, petitioners, pro se.

Robert L. Vogel, U. S. Atty., and Gordon Thompson, Asst. U. S. Atty., Fargo, N. D., for respondent.

RONALD N. DAVIES, District Judge.

Before the Court are the separate motions of Petitioners, Stanley V. Kessel, Vance W. Heideman and George Harding Bryant, to vacate and set aside judgment as to each of them brought under Title 28 U.S.C.A. § 2255.

Each motion will be treated individually since the bases for them are dissimilar. However, a general statement applicable to all Petitioners is necessary for a more complete understanding of what is involved.

On August 28, 1958, a complaint was filed before the United States Commissioner in Fargo, North Dakota, charging Petitioner Kessel with violation of Title 18 U.S.C.A. § 2314. Warrant issued, and the same day Kessel was arrested in Hillsboro, North Dakota, and was immediately taken before the United States Commissioner in Fargo, North Dakota. Upon being informed of the complaint and of his rights, Kessel waived preliminary hearing and was committed to jail in default of bond.

Kessel's two companions, the Petitioners Heideman and Bryant, were arrested in Crookston, Minnesota, August 30, 1958, under warrants issued the previous day in Fargo by the United States Commissioner. The complaints, filed prior to the issuance of the warrants, charged them also with violation of Title 18 U.S. C.A. § 2314.

The Petitioners Heideman and Bryant were then taken to Fargo, North Dakota, which is less than 100 miles from Crookston, Minnesota, for appearance before the United States Commissioner. The Commissioner informed them of the complaint and of their rights. Both Heideman and Bryant then waived preliminary hearing and were committed to the Cass County, North Dakota, jail in default of bond.

On September 19, 1958, a six count indictment was returned by a Grand Jury for the District of North Dakota. Each count charged each of the Petitioners with the interstate transportation of a falsely made, forged and counterfeited security in violation of Title 18 U.S.C.A. § 2314. On September 26, 1958, the Petitioners appeared with counsel of their own choice before this Court for arraignment. After being fully informed of their rights, each entered a plea of not guilty to each of the six counts of the indictment. Trial was set for all three Petitioners for December 15, 1958.

On December 12, 1958, the Petitioners again appeared with their attorney, each requesting permission to withdraw his plea of not guilty. Their respective requests were granted, and each Petitioner then entered a plea of guilty to each of the six counts of the indictment.

On December 16, 1958, the Court sentenced Petitioners Kessel and Heideman to four year terms on each of the first five counts, to be served consecutively, and ordered them placed on probation for five years on the sixth count effective upon their release from confinement after having served the prison sentences imposed. At the same time the Petitioner Bryant was sentenced to five year terms on each of the first five counts, to be served consecutively, and was ordered placed on probation for five years on the sixth count, effective upon his release from confinement after having served the prison sentences imposed.

George Harding Bryant

Consideration of the motion of Petitioner Bryant has been made both onerous and difficult since the Petitioner has often mis-cited cases, misquoted from cases he has cited and misunderstood the import of others upon which he relies.

Bryant contends this Court lacked jurisdiction to impose consecutive sentences on a single indictment, irrespective of the number of counts, above and beyond the maximum prescribed by statute on the first count in the indictment. The Court understands Petitioner to mean that the indictment is to be treated as one offense and not six, or that if treated as six, the maximum sentence that could be imposed would be that maximum prescribed for any one count of the indictment.

The motion Petitioner makes here is doubtless premature, (Crow v. United States, 9 Cir., 186 F.2d 704); but assuming, arguendo, that the question may be raised at this time, the problem presented to this Court is whether this Petitioner can now question the counts of an indictment to each of which he has freely and voluntarily pleaded guilty.

"A plea of guilty means guilty as charged in the indictment. If the indictment states no basis for jurisdiction, such a plea will not create a sufficient charge. However, by a plea of guilty, all averments of fact are admitted, all defects not jurisdictional are cured, all defenses are waived and the prosecution is relieved from the duty of proving any facts. The effect is the same as if the defendant had been tried before a jury and had been found guilty upon evidence covering all material facts. Where there are several counts and there is a plea of guilty to each respectively, the sentencing court must assume that each count states a separate crime. After judgment and sentence upon such a voluntary admission by plea of guilty, the matter is concluded and no proof will be received on habeas corpus or otherwise to assail collaterally the judgment, unless absence of jurisdiction makes it void." Berg v. United States, 9 Cir., 176 F.2d 122, 125, certiorari denied 338 U.S. 876, 70 S.Ct. 137, 94 L.Ed. 537.

"As this Court said in Keto v. United States, 8 Cir., 189 F.2d 247, 249:

"`The general rule is that, after conviction, a sentence is not open to collateral attack on the ground that the information or indictment upon which it was based was defective. A motion to vacate a judgment, under 28 U.S.C.A. § 2255, is a collateral attack upon the judgment, and only such grounds may be urged as would be available in habeas corpus proceedings. United States v. Gallagher, 3 Cir., 183 F.2d 342, 344. A judgment in a criminal case which is invulnerable to attack by habeas corpus is equally invulnerable on motion to vacate the judgment.'" Alm v. United States, 8 Cir., 238 F.2d 604, 605.

Upon the Petitioner's plea of guilty to each of the six counts of the indictment, this Court could, and rightfully did, assume that the six counts presented separate offenses and that the Petitioner's plea of guilty to the six counts of the indictment authorized the imposition of the maximum sentence upon each of the six counts. Berg v. United States, supra.

In Bridges v. United States, 9 Cir., 259 F.2d 611, 616, certiorari denied 358 U.S. 847, 79 S.Ct. 73, 3 L.Ed.2d 81, the Petitioner, after entering a plea of guilty to a two count indictment charging him in count one with a violation of the Jones-Miller Act, 21 U.S.C.A. § 174 and in count two with a violation of the Harrison Narcotic Act, 26 U.S.C.A. §§ 2553, 2557 was sentenced to five years under each count, the sentences to run consecutively. Bridges later filed a Sec. 2255 motion in which he alleged that there was an inference that the heroin referred to in the first count was also involved in the second count, and therefore, only one penalty could be imposed. Bridges, supra, is, of course, distinguishable from the case at bar since here we are concerned with six violations of the same law, whereas in Bridges both the Jones-Miller Act and the Harrison Narcotic Act were involved; but the reasoning applied in dealing with a plea of guilty to a multiple count indictment and the imposition of consecutive sentences is the same, and so as much of the Bridges case is quoted below as appears necessary to an understanding of this Court's reasoning.

"As to the `errors' here relied on, appellant contends that the lower court was without jurisdiction to impose the second and consecutive sentence on Count Two; that `as a matter of law the sentence under Count Two should have been made to run concurrently with the sentence imposed under Count One.' This argument makes clear that appellant is not challenging the jurisdiction of the court to impose the two sentences so long as they were ordered to run concurrently thereby imposing but one punishment under both charges. This view rests on the specific contention that `in order that separate offenses charged in an indictment may carry different punishments, they must rest on separate and distinct criminal acts and therefore, if they were committed at the same time and were part of the same criminal continuous act and inspired by the same criminal intent which is an essential element of each offense, they are susceptible to but one single punishment.'

"Based on the foregoing argument, appellant asserts that imposition of the second (consecutive) sentence has caused him to suffer double punishment because of an inference that the heroin referred to in the first count was also involved in the second count. From this fact he argues that since proof of the commission of the offense charged in Count One involved use of the same evidence relied upon to sustain the offense charged in Count Two, the claimed use of this evidence shows that he had committed but one offense and therefore was subject to only one penalty. This is a far from uncommon contention, and appellant cites two early cases as authority to sustain it, Munson v. McClaughry, 8 Cir., 1912, 198 F. 72, 42 L.R.A.,N.S., 302, and Stevens v. McClaughry, 8 Cir., 1913, 207 F. 18, 51 L.R.A.,N.S., 390.

"The above noted argument advanced by appellant is utterly void of merit. When he waived trial on the merits by entering a plea of guilty on both counts, he thereby deliberately (and as a matter of law) relieved the Government of the necessity of introducing proof of any sort to fully sustain the specific allegations set forth in each of the first two

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