Graham v. Squier, 577.
| Citation | 53 F. Supp. 881 |
| Decision Date | 11 February 1944 |
| Docket Number | No. 577.,577. |
| Parties | GRAHAM v. SQUIER, Warden. |
| Court | U.S. District Court — Western District of Washington |
Allan Lee Graham, pro se.
J. Charles Dennis, U. S. Atty., and Guy A. B. Dovell, Asst. U. S. Atty., both of Tacoma, Wash., for respondent.
The petitioner herein is serving an aggregate sentence of five years, imposed upon him on his plea of guilty to two counts in an indictment charging a violation of 18 U.S.C.A. § 76. The maximum sentence that can be imposed for a single offense under this section is three years. Sentence was imposed in this case on two counts and began to run on the 7th day of June, 1941.
It is the petitioner's contention that he committed but a single offense, even though he plead guilty to the offenses charged in the two counts. If this be a fact, then, making allowance for good time, he would be entitled to release on parole, under a maximum sentence of three years provided in the statute. He has further shown that his prison record is such that he has not forfeited his good time allowance.
The counts of the indictment herein involved are numbered I and III. Both counts are drawn in the language of the statute. Count I charges the petitioner:
"With intent to defraud one Frank X. Farry, did unlawfully, wilfully, knowingly and feloniously falsely assume and pretend to be an officer and employee, acting under the authority of the United States of America, to-wit: A Major, Air Corps, United States Army of America, and said defendant then and there did unlawfully, wilfully, knowingly and feloniously take upon himself to act as said officer and employee." (Italics supplied.)
Count III charges that petitioner, at the same time and place:
"With intent to defraud one Frank X. Farry, did unlawfully, wilfully, knowingly and feloniously falsely assume and pretend to be an officer and employee acting under authority of the United States of America, a Major, Air Corps, United States Army of America, and in such pretended character did unlawfully, wilfully, knowingly and feloniously obtain from said Frank X. Farry, a thing of value, to-wit: $25.00 good and lawful money of the United States of America." (Italics supplied.)
The sentence imposed on Count I was three years, and that upon Count III was two years, the sentences to run consecutively and not concurrently.
Upon hearing on the return to the Show Cause Order issued herein, the petitioner offered the only oral evidence that was submitted.
From the petitioner's testimony, the Court finds the facts to be that on the 6th day of May, 1941, he entered a business establishment of one Frank X. Farry, who dealt in household furnishings and hardware in the town of Sutter, California. He introduced himself to Mr. Farry as "Major Patrick of Moffatt Field" — Moffatt Field being an Army Air Base nearby. At the time he wore civilian clothes. He told Mr. Farry that he was being assigned to Moffatt Field, had leased a house in the community, as a personal residence, and desired to furnish it for the occupancy of himself and family. He selected several articles of furnishings, and, at the conclusion of the transaction, he asked Mr. Farry if he would accommodate petitioner by cashing a personal check for him in the sum of $25, as the bank had closed for the day. Mr. Farry agreed to do this, and the petitioner thereupon made a check drawn on the Branch Bank of America, in Sutter, and signed the check "Bernard F. Patrick" or "B. F. Patrick". Mr. Farry thereupon gave the petitioner $25, took the check, and in due course of business it was presented to the bank upon which it was drawn, and was dishonored, as there were no funds in the account.
The petitioner, in his original petition herein, contended that Section 76, supra, defines but a single offense, and relied upon United States v. Rush, D. C., 196 F. 579. When advised that the Rush case had been overruled in United States v. Barnow, 239 U.S. 74, 36 S.Ct. 19, 60 L.Ed. 155, and numerous other cases that have since followed, he asked and was given permission to file an amended petition, in which petition he contended that the facts as heretofore enumerated constituted but a single offense, even though Section 76, supra, defines two separate and distinct offenses, and, therefore, he is being subjected to double jeopardy, in violation of the 5th Amendment to the Constitution of the United States, by the imposition of two consecutive sentences for but one offense.
The amended petition was demurred to by the respondent herein, which demurrer was overruled, and the case was considered upon the amended petition. The Government did not offer any evidence, but contented itself in relying upon the fact that the evidence of the petitioner disclosed two separate and distinct offenses.
The Court finds from the petitioner's evidence that at the time he became involved in this trouble he was a lawyer and a member of the bar of the State of California; that due to domestic difficulties he was and had been for some time previous to his arraignment suffering great mental remorse and indulged in the excessive use of intoxicants. The Court, however, can not find that by reason of these facts he was not mentally in a condition to raise the question of double jeopardy at the time of his arraignment. He voluntarily entered his plea of guilty to the two counts of the indictment here in question, and at the time sentence was imposed the American Legion sent down as a "Comrade Counsel", a lawyer, who explained to the Court that, while he was appearing as counsel of record for the petitioner, it was only for the purpose of saying what he could concerning the petitioner's physical and mental condition.
Accepting these facts, do they support the two offenses charged?
The essential elements that establish the charge in Count I are:
1. The petitioner intended to defraud the person named in the indictment.
2. That he assumed and pretended to be a federal officer, acting under the authority of the...
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