Dillon v. United States, 11645

• Decision Date: 05 August 1940
• Docket Number: 11647.,No. 11645,11645
• Citation: 113 F.2d 334
• Parties: DILLON v. UNITED STATES. CROWLEY v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

113 F.2d 334 (1940)

DILLON v. UNITED STATES.

CROWLEY v. SAME.

Nos. 11645, 11647.

Circuit Court of Appeals, Eighth Circuit.

July 16, 1940.

Rehearing Denied August 5, 1940.

Frank J. Comfort, of Des Moines, Iowa, for appellant Lewis E. Crowley.

Walter F. Maley, of Des Moines, Iowa, for appellant Sidney J. Dillon.

Cloid I. Level, Asst. U. S. Atty., of Des Moines, Iowa (Hugh B. McCoy, U. S. Atty., of Oskaloosa, Iowa, and William R. Sheridan, Asst. U. S. Atty., of Keokuk, Iowa, on the brief), for appellee.

Before WOODROUGH and THOMAS, Circuit Judges, and BELL, District Judge.

WOODROUGH, Circuit Judge.

Sidney J. Dillon and Lewis E. Crowley were indicted upon ten counts (1-10) for violation of 18 U.S.C.A. § 338 (the mail fraud statute) and upon two counts (11 and 12) for violation of 15 U.S.C.A. § 77q (a) (2) (the Securities Act of 1933 as amended). They each pleaded nolo contendere to two counts (one and twelve) and were thereupon sentenced: Dillon to five years' imprisonment on each of the two counts, to run concurrently, and a thousand dollar fine; and Crowley to three years' imprisonment on each of the counts, to run concurrently, and a thousand dollar fine. They have prosecuted separate appeals from the final judgments which have been heard together upon the same record.

It appears from the record that after the pleas of nolo contendere were entered by the defendants the court passed the cause for sentence to a date twenty-eight days later. On the appointed day, the defendants appeared and filed a motion to dismiss and quash the indictment and for discharge of the defendants, and an amendment thereto. The District Attorney protested that in view of the plea of nolo contendere the motion could not then be made, but the court expressed the opinion that the sufficiency of the indictment could be inquired into at any time, and the motion and amendment having been argued by counsel, the court overruled the same and directed that the record show that the motion and the amendment were ordered to be argued before taking up the matter of the pleas of nolo contendere, and that "the court being advised", had then made its ruling and allowed exception.

The record as to the court's hearing and disposition of the motion and the amendment was doubtless kept clear in this manner to prevent our confusing in any way the court's action on the motion with its action respecting the pronouncement of sentence on the defendants' pleas of nolo contendere. The court had assigned the cause at that time only for pronouncement of sentence on the pleas, but the defendants had each filed typewritten statements which were treated and considered by the court as their statements of cause why judgment should not be pronounced against them, and in addition they offered testimony in their behalf. The District Attorney also had filed a typewritten statement advising the court of the testimony which he believed was available to the government to sustain the charges of the indictment. In their respective statements the defendants had also given their version of the matters covered by the statement presented by the District Attorney. The defendants made no request to withdraw their pleas of nolo contendere. Their counsel stated: "the Court may make any inquiry into the facts that may assist him, and we are merely offering it the proffered testimony¹ to aid the court in determining these legal questions that will come up to be determined". "We don't question the effect of the plea." The court therefore made its position plain on the record that it would not hear evidence on whether the facts warranted the indictment and that it would not "go behind the indictment". But the court stated, "I don't like to arbitrarily say the gentlemen can not make a record on their position * * *," and it appointed an official reporter to make up a record of the proceedings which were had before it. They consisted of offers of proof made by defendants, arguments of counsel, colloquy and discussion between the court and counsel, questions propounded to defendants and answered by them, and evidence of the good character of the defendants. The court clearly indicated by its rulings and statements that it would not hear evidence to contradict the indictment or to show its insufficiency, but would "take the evidence" as indicated by the record for the purpose of aiding in passing sentence. Counsel for defendants also made eloquent pleas for leniency for their clients, conceding as to defendants that "they did some things they ought not to do", but urging that they stood before the court "as good citizens, engaged in honorable pursuits in life, unfortunate in the situation in which they find themselves", and that they did not come within the class that needed to be isolated for the benefit of the public. The court, in passing sentence, expressed a contrary view of the nature of the offenses charged against the defendants, admitted by their plea, and explained by the statements considered during the proceedings. The formal journal entry of the judgment of sentence appears in the record duly signed by the judge.

On this appeal the substance of the points argued for reversal is (1) that the indictment fails to charge an offense; (2) that the court considered incompetent evidence and failed to consider competent evidence tendered by defendants; (3) that there was improper joinder of parties and of offenses; (4) that the judgment entered does not conform to the oral pronouncement of the court; (5) that there was unjust discrimination between the defendants in the different penalties imposed; (6) that the punishment was cruel and excessive; (7) that the court was confused as to the law and facts; (8) that the defendants did not have a fair trial.

Opinion.

(1) The first count of the indictment plainly and sufficiently charges both defendants with the commission within the period of the statute of limitations of the offense denounced by the mail fraud statute, 18 U.S.C.A. § 338. A copy omitting the formal parts is appended,² and no good purpose could be served by discussion of the attacks that were made upon it after the defendants had pleaded to it. As the sentence of imprisonment and fine imposed under the first count of the indictment did not equal the maximum penalty fixed by the applicable statute, and the imprisonment under the twelfth count runs concurrently with that under the first count, there is no occasion to discuss the sufficiency of the twelfth count. Miller v. United States, 8 Cir., 295 F. 602. We think it also stated an offense.

(2) The extent of the sentence to be imposed upon the defendants was within the discretion of the trial court. It is settled that the pleas of nolo contendere were confessions of guilt for the purpose of the case, and sentence of both imprisonment and fine could be imposed upon such plea. Hudson v. United States, 272 U.S. 451, 47 S.Ct. 127, 71 L.Ed. 347. The court accorded the defendants full opportunity to give their version of all the matters involved in the charges against them, and they availed themselves of the opportunity. The court properly refused to "go behind the indictment", or to turn its proceedings relative to the imposition of sentence into a trial of the case. It heard everything proffered that tended to aid in exercising its discretion, and the attacks now made upon the procedure by which it became advised as to the sentence proper to be imposed are without merit.

(3) The fact that a charge of violation of the mail fraud statute was joined in the same indictment, but in different counts, with a charge of violation of the Securities Act, did not render the indictment defective, and certainly such fact presents no ground to reverse the judgments entered upon pleas of nolo contendere. The two officers of the common law trusts who co-operated in the commission of the offenses were properly joined as defendants in the same indictment.

(4) In its oral pronouncement of sentence, the court ordered that Mr. Dillon be committed for a period of five years and fined a thousand dollars on each count, running concurrently (referring to the two counts to which he had plead nolo contendere). The judge thereupon, on the same day, made and signed the formal judgment entry. It omits any fine on the twelfth count and specifies an institution of the...