Keto v. United States

• Decision Date: 08 May 1951
• Docket Number: No. 14255.,14255.
• Parties: KETO v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

189 F.2d 247 (1951)

KETO v. UNITED STATES.

No. 14255.

United States Court of Appeals Eighth Circuit.

May 8, 1951.

Thomas Paul Downs, Kansas City, Mo., for appellant.

Leo P. Flynn, U. S. Atty., and Matthew A. Brown and Francis G. Dunn, Asst. U. S. Attys., all of Sioux Falls, S. D., for appellee.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from an order denying the motion of Tommy Keto (who will be referred to as defendant) to vacate a sentence of imprisonment imposed upon him September 13, 1946, after his plea of guilty to an information charging him with the armed robbery, on August 29, 1946, of the Bear Butte Valley Bank, of Sturgis, South Dakota. See 12 U.S.C.A. § 588b.¹ He contends that the court was without jurisdiction to impose sentence, because the information² failed to state that the bank was the kind of a bank the robbery of which would constitute a federal offense. See 12 U.S.C.A., § 588a.1

The information was filed on September 10, 1946. The defendant had on that day filed a formal waiver of indictment and consent to be prosecuted by information.³ See Rule 7(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Upon arraignment, the defendant, who was represented by counsel, again, in open court, waived indictment and entered a plea of guilty to the information. Sentence was deferred by the court pending a pre-sentence investigation by the Federal Probation Officer.

On September 13, 1946, the defendant appeared for sentence with his counsel. Mr. George Philip, the United States Attorney (now deceased) first called the court's attention to the fact that the defendant's name was "Keto", not "Kito", and then said: "I want to make a statement to the record. It is not specified in the information that the Bear Butte Valley Bank, which was the victim bank of the robbery charged in the information, is a member of the Federal Deposit Insurance Corporation. I have talked to counsel for the defendant and I am advised by him that he and his client are fully aware, and were at the time of the pleading, that that was the situation of the Bear Butte Valley Bank. The Statute, as required by the new rules, is cited in the information and charges a violation of that particular statute. I think it is entirely a formality. My attention was called to it by Matt Brown, but counsel for the defendant and I have agreed that no amendment of the information under Rule 7e is required under the circumstances."

The court replied, "Very well." Mr. Philip then moved for sentence.

The court said to the defendant: "By criminal information No. 3115, which was filed and made a record of this court on the 10th day of September, 1946, you are charged with the violation of the federal statute in that it is alleged that you perpetrated the robbery of the Bear Butte Valley Bank, contrary to the provisions of the federal statute. When arraigned upon this charge in open court you entered your oral plea of guilty to the charge set forth in the information. The District Attorney has moved the case for sentence, or judgment, at this time, and before pronouncing sentence it is the duty of the Court to ask you if you have any legal ground or cause to show why the judgment of the Court should not be pronounced at this time? Are you ready for sentence?"

Counsel for the defendant replied: "We have no legal ground or cause to show."

Upon being asked by the court if there were any mitigating circumstances, defendant's counsel stated that the defendant claimed that he was drunk at the time of the robbery, and further stated that $5,110.00 of the bank's money had been taken from the defendant at the time of his arrest. The District Court, after expressing the view that neither the defendant's claimed intoxication nor involuntary restitution of funds stolen would justify leniency, sentenced him to imprisonment for twenty-five years.

The defendant's motion, under § 2255, Title 28 U.S.C.A., to vacate his sentence was filed March 31, 1950. A hearing was thereafter had and briefs were submitted. In a letter to counsel dated August 15, 1950, the District Judge stated his conclusion relative to the motion as follows:

"When the information is attacked for the first time by a motion to vacate the sentence, more than three years after the sentence was pronounced, under the facts and circumstances obtaining in this case, I feel as stated in Kramer v. U. S., 9 Cir., 166 F. 2d 515, 519.

"`That the indictment should be sustained if the necessary facts could be drawn by reasonable inference from its allegations.'

"While the question is by no means free from doubt, I am convinced that under the facts and circumstances in this case, coupled with the fact that the petitioner has waited almost four years after sentence was pronounced before raising the question, that the ends of justice would not be served by granting petitioner's motion, based as it is on painfully technical grounds."

A formal order denying the motion was entered August 21, 1950, which contains the following language:

"After a careful consideration of the entire record, the briefs submitted by respective counsel, and from my own knowledge and recollection of the proceedings at the time of arraignment and plea as well as at the time of sentence, I have concluded that the failure of the Information to allege the fact, admittedly known by petitioner at the time of arraignment and plea, that the Bear Butte Valley Bank was a bank within the purview of Section 588a, Title 12, United States Code, is not sufficient to warrant vacating and setting aside judgment and sentence after an elapse of almost four years from the date said sentence was pronounced; now, therefore, it is hereby

"Ordered that the Motion to Vacate Judgment and Sentence of said petitioner, Tommy Keto, be and the same hereby, is denied."

This Court has recently been confronted with several cases in which a federal prisoner has attacked collaterally a sentence, either by habeas corpus or motion to vacate, upon the ground that the indictment or information upon which the sentence was based was so defective as to deprive the court of jurisdiction to impose the sentence. Such cases have usually been decided adversely to the prisoner upon the ground that the defects relied upon to invalidate the sentence were formal rather than substantial, that no prejudice to the defendant had been shown, and that the attack came too late. See United States v. Bent, 8 Cir., 175 F.2d 397, certiorari denied 338 U.S. 829, 70 S.Ct. 79, rehearing denied 338 U.S. 896, 70 S.Ct. 238; Thomas v. United States, 8 Cir., 188 F.2d 6. It seems advisable to state as definitely as possible the rule which precludes a defendant, after conviction, from attacking collaterally the sufficiency of an indictment or information.

The general rule is that, after conviction, a sentence is not open to collateral attack on the ground that the information or indictment upon which it was based was defective. A motion to vacate a judgment, under 28 U.S.C.A. § 2255, is a collateral attack upon the judgment, and only such grounds may be urged as would be available in habeas corpus proceedings. United States v. Gallagher, 3 Cir., 183 F.2d 342, 344. A judgment in a criminal case which is invulnerable to attack by habeas corpus is equally invulnerable on motion to vacate the judgment.

In Ex parte Watkins, 3 Pet. 191, 7 L.Ed. 650, a prisoner who had been convicted in the District of Columbia, applied to the Supreme Court for habeas corpus on the ground that the indictment under which he had been sentenced by the Circuit Court of the District charged no offense for which he was punishable. Mr. Chief Justice Marshal, in delivering the opinion of the court, said at page 206 of 3 Pet.: "The cases are numerous, which decide, that the judgments of a court of record, having general jurisdiction of the subject, although erroneous, are binding, until reversed. It is universally understood, that the judgments of the courts of the United States, although their jurisdiction be not shown in the pleadings, are yet binding on all the world; and that this apparent want of jurisdiction can avail the party only on a writ of error. This acknowledged principle seems to us, to settle the question now before the court. The judgment of the circuit court, in a criminal case, is, of itself, evidence of its own legality, and requires for its support, no inspection of the indictment on which it is founded. The law trusts that court with the whole subject, and has not confided to this court the power of revising its decisions. We cannot usurp that power, by the instrumentality of the writ of habeas corpus. The judgment informs us, that the commitment is legal, and with that information, it is our duty to be satisfied."

In Lamar v. United States, 240 U.S. 60, 36 S.Ct. 255, 60 L.Ed. 526, Mr. Justice Holmes, who delivered the opinion of the court, stated that the question of the sufficiency of an indictment was not a question going to the jurisdiction of the court, but one relating to the merits of the case. He said at pages 64-65 of 240 U.S., at page 256 of 36 S.Ct.: "* * * Jurisdiction is a matter of power, and covers wrong as well as right decisions. Fauntleroy v. Lum, 210 U. S. 230, 234, 235, 28 S.Ct. 641, 52 L.Ed. 1039, 1041; Burnet v. Desmornes y Alvarez, 226 U.S. 145, 147, 33 S.Ct. 63, 57 L.Ed. 159, 160. There may be instances in which it is hard to say whether a law goes to the power or only to the duty of the court; but the argument is pressed too far. A decision that a patent is bad, either on the facts or on the law, is as binding as one that it is good. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716, 717. And nothing can be...