Ekberg v. United States

• Citation: 167 F.2d 380
• Decision Date: 25 March 1948
• Docket Number: No. 4314.,4314.
• Parties: EKBERG v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

167 F.2d 380 (1948)

EKBERG v. UNITED STATES.

No. 4314.

Circuit Court of Appeals, First Circuit.

March 25, 1948.

John O. Parker, of Boston, Mass. (Charles W. Bartlett, of Boston, Mass., on the brief), for appellant.

Philip F. Herrick, of San Juan, P. R., U. S. Atty. (Francisco Ponsa Feliu, of San Juan, P. R., Asst. U. S. Atty., on the brief), for appellee.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

This is an appeal from an order denying a motion under Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, for correction of an allegedly illegal sentence.

On April 22, 1942, an indictment was filed in the United States District Court for Puerto Rico charging appellant Ekberg with violation of § 32 of the Criminal Code, 18 U.S.C.A. § 76, which reads as follows:

"Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any department, or any officer of the Government thereof, or under the authority of any corporation owned or controlled by the United States, and shall take upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any department, or any officer of the Government thereof, or any corporation owned or controlled by the United States, any money, paper, document, or other valuable thing, shall be fined not more than $1,000 or imprisoned not more than three years, or both."

The indictment was in three counts, the material portions of which are set forth in the footnote.¹

In the first count it was charged that Ekberg, with intent to defraud one Manuel Vazquez Diaz, pretended to be an officer and employee of the United States Engineer Office of the United States War Department, and did take upon himself to act as such officer and employee, in that he called by telephone the said Manuel Vazquez Diaz and falsely pretended to him that he was such an officer and employee of the United States. In the second count it was charged that Ekberg, with intent to defraud and in the afore-mentioned pretended character, demanded a typewriter from the said Manuel Vazquez Diaz. The third count was the same as the second, except that in place of alleging a demand it charged that Ekberg did "obtain" a typewriter from Manuel Vazquez Diaz. In each count the time and place of the offense were alleged to be February 9, 1942, in San Juan, Puerto Rico.

Upon arraignment, and being then represented by counsel appointed by the court, Ekberg entered a plea of guilty to the indictment. Thereupon, on April 24, 1942, the court sentenced him to imprisonment for a term of two years and one month on each of the three counts; sentences on the second and third counts to run concurrently, but consecutively to the sentence imposed on the first count. Further, the court suspended the execution of the sentences on the second and third counts and placed the defendant on probation for a period of five years commencing upon completion of the service of sentence on the first count.

After Ekberg had completed the service of his sentence under count 1, and had entered upon his period of probation, he was taken into custody and brought before the court below on the charge of having violated the conditions of his probation. At the hearing on revocation of probation, Ekberg, being again represented by courtappointed counsel, pleaded guilty to the charge. By order on December 2, 1946, the district court revoked the probation, and committed Ekberg to prison for service of the concurrent sentences of two years and one month theretofore imposed on the second and third counts of the indictment. Ekberg is now in the federal penitentiary at Leavenworth, Kansas, on this commitment.

On June 11, 1947, Ekberg filed in the court below a motion for correction of sentence under Rule 35, which provides that an illegal sentence may be corrected "at any time." His contention was that the indictment with its three counts, to which he pleaded guilty, charged but a single offense under 18 U.S.C.A. § 76, and that the sentence imposed by the court exceeded the statutory maximum of three years. The motion was set down for hearing on June 13, 1947, at which an Assistant United States Attorney appeared for the government, but at which Ekberg was not present or represented by counsel. (Cf. United States v. Lynch, 7 Cir., 1947, 159 F.2d 198, 200.) On the same day the court entered an order denying the motion. No appeal was taken from this order.

On October 23, 1947, Ekberg filed another motion for correction of sentence. This motion, while more elaborate, is now conceded to have raised in substance the same question that had been presented in the earlier motion. At a hearing held October 31, 1947, the motion was opposed by an Assistant United States Attorney. Ekberg, again, was not present or represented by counsel. The court on the same day denied the motion. Notice of appeal from this order of denial was filed November 7, 1947.²

The United States filed a motion to dismiss the appeal as untimely. We withheld consideration of the motion until argument on the merits, at which the United States was represented by the United States Attorney and appellant by counsel appointed by this court.

We have concluded, not without some hesitation, that the motion to dismiss should be denied.

An order denying a motion to correct an illegal sentence is a "final decision" within the meaning of 28 U.S.C.A. § 225(a), since nothing further remains to be determined in the cause. See Wiley v. United States, 9 Cir., 1944, 144 F.2d 707, 708, in which the court described the proceeding as in the nature of an application for a writ of error coram nobis. See also Michener v. United States, 8 Cir., 1946, 157 F.2d 616, in which the circuit court of appeals entertained an appeal from such an order, and reversed on the merits.³ It follows that an order of the United States District Court for Puerto Rico denying a motion to correct an illegal sentence is appealable to this court by virtue of 28 U.S. C.A. § 225(a) and 48 U.S.C.A. § 864. In such a case, the method of taking the appeal is governed by Rule 37(a) (1) of the new Criminal Rules, and the appeal must be taken within ten days after the entry of the order, as provided in Rule 37(a) (2) thereof. Under Rule III of the earlier Criminal Rules, 292 U.S. 662, the five-day limit on taking appeals in criminal cases applied only to appeals from judgments of conviction; and appeals from subsequent orders like the one now in question were therefore left to be governed by 28 U.S.C.A. § 350. United States ex rel. Coy v. United States 1942, 316 U.S. 342; Tesciona v. United States, 9 Cir., 1944, 141 F.2d 811. But the New Rule 37 applies more broadly to any "judgment or order" in a criminal case, from which an appeal is permitted by law. Appellant here took the present appeal within ten days from the entry of the order appealed from — the order of October 31, 1947, denying his second motion for correction of his sentence. To that extent the appeal is certainly timely.

So much the government concedes. But in its motion to dismiss it stresses the point that Ekberg's first motion for correction of sentence, raising the same question of law, was denied by order entered June 13, 1947, and that no appeal was ever taken from such order. The time for appealing having expired, it is contended that appellant cannot extend the time by indirection, by the expedient of filing a second motion to the same effect and having the court enter a second order of denial. Sosa v. Royal Bank of Canada, 1 Cir., 1943, 134 F.2d 955, cited by the government in this connection, is not controlling. There, the district court had entered an order dismissing a complaint for failure to state a cause of action. After the time for appealing had elapsed, the court by inadvertence signed and entered another order in the same terms dismissing the complaint. We held that such reentry of the order of dismissal could not operate to extend the statutory period for appeal. The situation would have been closer to the present case, though not wholly on all fours, if the plaintiff in the Sosa case, after his first complaint had been dismissed, had filed an identical second complaint, and the defendant, without relying on the defense of res judicata, had moved to dismiss on the merits; we would suppose that an appeal could be taken from a judgment dismissing this second complaint.

Since under Rule 35, the sentencing court may correct an illegal sentence "at any time", even after the term has expired, we think it clear that the court below would have had power to entertain and grant Ekberg's second motion, notwithstanding its denial of the earlier motion to the same effect, assuming the motion was a meritorious one. If convinced of its previous error, the sentencing court should have continuing power to correct its own illegal sentence. This is a much more appropriate remedy than remitting the prisoner to a petition for habeas corpus in the district court wherein he is confined. See Berkoff v. Humphrey, 8 Cir., 1947, 159 F.2d 5. The rule of res judicata is not in all strictness applied in habeas corpus cases. A judge is not precluded from entertaining a petition for habeas corpus and disposing of it on the merits, even though the same point had been ruled adversely to the petitioner in a previous habeas corpus proceeding. Salinger v. Loisel, 1924, 265 U.S. 224, 230, 231, 44 S.Ct. 519, 68 L.Ed. 989; Johnston v. Wright, 9 Cir., 1943, 137 F.2d 914; United States ex rel. Gregoire v. Watkins, 2 Cir., 1947, 164 F.2d 137, 138. See Price v. Johnston, 9 Cir., 1947, 161 F.2d 705, certiorari granted, 1947, 331 U.S. 804, 67 S.Ct. 1757. A fortiori a ruling by the trial judge, at an earlier stage of the same criminal proceeding, on a motion to correct...