DePugh v. United States

• Decision Date: 09 May 1968
• Docket Number: No. 18805.,18805.
• Citation: 393 F.2d 367
• Parties: Robert Bolivar DePUGH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

393 F.2d 367 (1968)

Robert Bolivar DePUGH, Appellant, v. UNITED STATES of America, Appellee.

No. 18805.

United States Court of Appeals Eighth Circuit.

April 15, 1968.

Rehearing Denied May 9, 1968.

William J. Gilwee, Kansas City, Mo., for appellant; William H. Costello, Kansas City, Mo., on the brief.

Calvin K. Hamilton, Asst. U. S. Atty., Kansas City, Mo., for appellee; F. Russell Millin, U. S. Atty., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MEHAFFY and HEANEY, Circuit Judges.

PER CURIAM.

On January 31, 1967, defendant Robert Bolivar DePugh was sentenced upon his plea of nolo contendere to a one-count indictment alleging a violation of 15 U.S. C.A. § 902(e), charging that he transported a revolver in interstate commerce while under state indictment for a crime punishable by imprisonment for a term exceeding one year.¹ This appeal arises from the March 8, 1967 orders of the district court overruling defendant's timely motions for new trial and in arrest of judgment. We affirm the judgment of conviction.

Defendant's various arguments raise the sole issue of the sufficiency of the federal indictment. This court is not foreclosed by a plea of nolo contendere from considering the sufficiency of the indictment. Melrose Distillers, Inc. v. United States, 258 F.2d 726 (4th Cir. 1958). See also Jaben v. United States, 333 F.2d 535 (8th Cir. 1964). The defendant argues that § 902(e), under which he was indicted by the federal grand jury, requires a valid and legal predicating indictment as one of its elements; that the state indictment returned on August 16, 1965, and quashed on March 9, 1967, was defective; that it was null and void as it failed to allege possession of a bomb with intent to use it unlawfully against the person or property of another, an alleged essential ingredient of the Missouri statute.² This argument was first raised in the defendant's pretrial motion to dismiss the indictment which was overruled by District Judge Elmo B. Hunter in a memorandum and order dated January 27, 1967 and reported as United States v. DePugh, 266 F.Supp. 453 (W.D.Mo. 1967).

The state indictment pending at the time of defendant's sentence in federal court, omitting its formal parts, reads as follows:

"The Grand Jurors for the State of Missouri, duly summoned from the body of said County of Jackson, being duly impaneled, sworn and charged to inquire within and for said County, upon their oaths present and charge that at the County of Jackson and State of Missouri, on or about the 9th day of July, 1965, one ROBERT B. DEPUGH, whose more true and full name is unknown to the members of the Grand Jury, did then and there unlawfully, wilfully and feloniously have in his possession and under his control various bombs and bomb shells; against the peace and dignity of the State."

The state indictment was predicated on V.A.M.S. § 564.580, and although not in the language of the statute did charge that the defendant "unlawfully, wilfully and feloniously" had in his possession and under his control various bombs and bombshells. The experienced district judge was of the opinion that the indictment was proper and valid on its face.³ However, on March 9, 1967, some thirty-seven days after sentencing on the federal plea, the state court quashed the indictment on motion of defendant.

The record before us does not show whether at that late date the state prosecutor resisted the motion to quash the state indictment, but under Missouri law a substitute information could have been filed if the state indicment was insufficient either as to form or substance. The Missouri statute, V.A.M.S. § 545.300 provides:

"§ 545.300. Informations — amendment — substitution for defective indictment.

"An information may be amended either as to form or substance at any time before the jury is sworn, but no such amendment shall be allowed as would operate to charge an offense different from that charged or attempted to be charged in the original information. If an indictment be held to be insufficient either as to form or substance, an information charging the same offense charged or attempted to be charged in such indictment may be substituted therefor at any time before the jury is sworn. No amendment of the information or substitution of an information for an indictment as herein provided shall cause a delay of the trial unless the defendant shall satisfy the court that such amendment or substitution has made it necessary that he have additional time in which to prepare his defense." (Emphasis added.)

We think this statute is a complete refutation of defendant's contention for reversal, which is based on the asserted invalidity of the state indictment. The state indictment returned against defendant on August 16, 1965 carries a minimum sentence of two years. This indictment was pending when defendant was alleged to have transported the revolver from Des Moines, Iowa to Kansas City, Missouri, in interstate commerce between the dates of July 23, 1966 and August 20, 1966. The state indictment was pending when defendant entered his plea of nolo contendere and was sentenced to the custody of the Attorney General for a term of one year on January 31, 1967 in the district court. It was not until March 9, 1967 that the state indictment was quashed. Defendant had by this time been convicted in the present case, and also on January 17, 1967 he had been convicted and sentenced upon three counts of an indictment by trial to a jury in the same federal district court. When the state indictment was quashed, the prosecutor could have filed a substitute information to correct any defects in the indictment if he wished. We have no knowledge why the state did not substitute an information and prosecute the defendant when the indictment was quashed. The indictment pended for about fifteen months and no state action was taken. It could well have been that the state's inactivity was by reason of its knowledge of some of the federal charges as it is not uncommon for state charges to be sometimes dropped when the same defendant has been convicted or sentenced under a federal charge. Whatever the motivation, it could not have had any effect upon the validity of the federal indictment. The United States was not a party to the state proceeding and could not take any action to support the validity of the state indictment, and therefore could not be affected by the decision of the Missouri court to which it was not a party. United States v. Luros, 243 F.Supp. 160 (N. D.Iowa 1965).

We assume for purposes of this decision that the state indictment was defective, but at most it was voidable and not void because of the Missouri statute permitting substitution of an information to cure the defects. We have heretofore held in Schook v. United States, 337 F.2d 563, 567 (8th Cir. 1964), that the federal Act applied to informations as well as indictments and that:

"Congress plainly sought to protect the public by proscribing the transportation of firearms by convicted felons or those charged with felonies

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