Kistner v. United States

• Decision Date: 11 June 1964
• Docket Number: No. 17498.,17498.
• Citation: 332 F.2d 978
• Parties: Harold Eugene KISTNER, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

332 F.2d 978 (1964)

Harold Eugene KISTNER, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 17498.

United States Court of Appeals Eighth Circuit.

June 11, 1964.

Wallace W. Huff of Crary & Huff, Sioux City, Iowa, made argument for appellant and filed a brief.

Donald E. O'Brien, U. S. Atty., Sioux City, Iowa, made argument for appellee and filed a brief.

Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

This appeal is from an order of the District Court denying the motion filed under 28 U.S.C.A. § 2255 by appellant, Harold Eugene Kistner, Jr. (hereinafter referred to as "defendant"), to vacate judgment and sentence which the trial court entered upon one of defendant's two convictions under separate indictments. In Criminal Action No. 4548, the defendant was tried before a jury on a nineteen count indictment and found guilty under Count XIX for causing the delivery by mail on January 19, 1961, of an envelope addressed to one Dr. Klass G. Onken, Wilmont, Minnesota, containing an unregistered stock certificate representing 1,000 shares of $1.00 par value common stock in the Northern Biochemical Corporation of Iowa, in violation of 15 U.S.C.A. § 77e(a) (2). A second, twenty-two count indictment against the defendant was returned in Criminal Action No. 4550. All counts, save two, were dismissed by the court upon motion of the Government following defendant's plea of guilty to Counts I and XIII. Defendant was charged in Count I with aiding and abetting in the misapplication of national bank funds in violation of 18 U.S.C.A. §§ 2 and 656; while Count XIII alleged a violation of 15 U.S.C.A. § 77q (a) for his fraudulent sale through the mails to Dr. Onken of the same securities described in Count XIX of the first indictment. When sentenced by the District Court pursuant to the general penalty proviso of the Securities Act of 1933, 15 U.S.C.A. § 77x, the defendant received five years' imprisonment under Count XIX of No. 4548, ordered to run concurrently with a like term imposed under Count I of No. 4550 and three years' imprisonment under Count XIII of the latter indictment, ordered to run consecutively to the five year sentences, for a total sentence of eight years.

The District Court correctly found that defendant's motion under § 2255 improvidently attacked collaterally the judgment and sentence under Count XIII of No. 4550, because service thereof has not been commenced by defendant who is presently in custody for the third year of his concurrent five year terms. Section 2255, like its ancestral writ of habeas corpus, is only available to a prisoner entitled to be released from custody of the sentence being served. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Willis v. United States, 289 F.2d 581 (8th Cir. 1961), cert. denied 368 U.S. 856, 82 S.Ct. 93, 7 L.Ed.2d 53 (1961). We are unconcerned with the appropriateness of the District Court's entertaining defendant's entire motion, complete with hearing under Rule 35, Fed.Rules Crim.Proc., even though his grounds, which include double jeopardy, res judicata, fraud on the court, newly discovered evidence, insufficiency of the indictment, and denial of a plea nolo contendere, may exceed this rule's limitation of correcting at any time an illegal sentence, but precludes reexamination of errors at trial or other proceedings prior to the imposition of sentence. Defendant has abandoned appeal of all these issues unfavorably decided against him in the hearing below except his alleged double jeopardy in being twice indicted and convicted under separate statutes for a single, unlawful stock transaction. With regard to this ground alone, we are not inclined to extend approval of the District Court's recognition generally in its post-hearing memorandum that the issue of double jeopardy may be raised for the first time under the procedural vehicle of Rule 35 in view of the defendant's plea of guilty to the indictment attacked and failure to take a timely appeal from either conviction. Constitutional immunity from double jeopardy is a personal defense which must be affirmatively pleaded at trial and is waived by a plea of guilty along with all non-jurisdictional defects, facts and defenses. See Harris v. United States, 237 F.2d 274 (8th Cir. 1956) and Harris v. United States, 288 F.2d 790 (8th Cir. 1961).

Assuming the double jeopardy question is reachable upon the merits through Rule 35, the District Court properly denied defendant its substantive relief. The crux of the defendant's argument is that Count XIX of the first indictment for violation of § 77e(a) (2) and Count XIII of the second indictment for violation of § 77q(a), constitute a single offense because to sustain both convictions, the Government must prove identical facts, viz: the mailing of a certain unregistered stock certificate to the duped investor, Dr. Klass G. Onken.

Whether the attack on double punishment or successive prosecution for a single offense has been raised, respectively, in response to one indictment with multiple counts, or, as here, under the double jeopardy provision of the Fifth Amendment, the legal touchstone for determining the separate charges' identicalness is indistinguishable. The Supreme Court has long held in cases involving a single, multi-count indictment that:

"(T)he test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes." Morgan v. Devine, 237 U.S. 632, 641, 35 S.Ct. 712, 715, 59 L.Ed. 1153 (1915).

and stated differently, but to the same effect:

"(T)hat, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182

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