Green v. United States

• Decision Date: 20 December 1961
• Docket Number: No. 17489.,17489.
• Citation: 298 F.2d 230
• Parties: Kenneth A. GREEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

298 F.2d 230 (1961)

Kenneth A. GREEN, Appellant, v. UNITED STATES of America, Appellee.

No. 17489.

United States Court of Appeals Ninth Circuit.

December 20, 1961.

Kenneth A. Green, El Reno, Okl., appellant, in pro. per.

Francis C. Whelan, U.S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, David Y. Smith, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before JERTBERG and BROWNING, Circuit Judges, and TAYLOR, District Judge.

JERTBERG, Circuit Judge.

Appellant was convicted on his plea of guilty to both counts of a two-count indictment, each charging the offense of violating Title 18 U.S.C.A. § 2314, in that appellant unlawfully and fraudulently caused to be transported in interstate commerce a false security, the check in Count 1 being in the amount of $214.45 and the check in Count 2 in the amount of $322.

On December 14, 1959, appellant was sentenced under Count 1 to imprisonment for two years. Imposition of sentence under Count 2 was suspended, and appellant was placed on probation for a period of five years, to commence upon completion of service of sentence imposed on Count 1. On the same day, the district court ordered a stay of execution of the sentence until twelve o'clock noon, January 18, 1960.

On April 25, 1960, following appellant's conviction on his plea of nolo contendere to a one-count indictment charging violation of Title 18 U.S.C.A. § 2314, alleged to have been committed on or about January 8, 1960, the appellant was sentenced to imprisonment for three years, such sentence to run concurrently with the sentence imposed under the two-count indictment.

On May 3, 1961, the appellant moved the district court "for the discharge of the defendant from Count 2 of the two-count indictment * * *." The motion was denied and this appeal is from the order denying such motion.

Appellant, who appears in propria persona, makes two contentions.

First, he contends that the district court was without authority to suspend the imposition of sentence on Count 2 of the two-count indictment and place him on probation for the five-year period to commence upon completion of the two-year penitentiary sentence imposed on Count 1 of the same indictment.

Such contention is without merit.

The two offenses set forth in the two-count indictment are separate and distinct offenses, for which separate and distinct sentences may be imposed. Castle v. United States, 287 F.2d 657 (5th Cir. 1961); Carlson v. United States, 274 F. 2d 694 (8th Cir.1960); United States v. Taylor, 210 F.2d 110 (2d Cir.1954). The punishment provided by Title 18 U.S. C.A. § 2314, is a fine of not more than $10,000 or imprisonment for not more than ten years, or both. Title 18 U.S. C.A. § 3651, authorizes a suspension of imposition of sentence and the granting of probation. The sentence pronounced by the district court on Count 2 of the two-count indictment is specifically authorized by said section, which in pertinent part reads:

"Probation may be granted whether the offense is punishable by fine or imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment."

The express contention urged by appellant was considered by this court and rejected in Weber v. Squier, 124 F.2d 618 (9th Cir.1941), certiorari denied 315 U.S. 810, 62 S.Ct. 800, 86 L.Ed. 1209, 1942. In the Weber case, the defendant was sentenced to imprisonment for two years on one count of the indictment and for five years on another count of the same indictment, but execution of this sentence was suspended and the defendant was placed on probation for five years. At page 621, of 124 F.2d, this court states:

"* * * there was nothing wrong with the District Court\'s order in the instant case in sentencing petitioner to the penitentiary upon one count and at the same time sentencing him and suspending sentence under a period of probation under another count of the same indictment."

To the same effect, see Palmer v. Sanford, 57 F.Supp. 104 (D.C.Ga.1944), affirmed 147 F.2d 549 (5th Cir.1945), certiorari denied 325 U.S. 878, 65 S.Ct. 1555, 89 L.Ed. 1995, 1945; United States v. Vasen, 222 F.2d 3 (7th Cir. 1955).

Appellant quotes at great length from United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309, 1928. In the Murray case, it was held that where a person had begun to serve his sentence, the court was without power under the Probation Act to suspend further execution and grant probation, even though in that case the term to which sentence was imposed had not expired. In the instant case, the suspension of imposition of sentence on Count 2 of the two-count indictment was pronounced at the same time as the sentence of imprisonment on Count 1 of the indictment, and hence before appellant had begun to serve his sentence on Count...