Martin v. United States, 6414.
| Decision Date | 09 December 1960 |
| Docket Number | No. 6414.,6414. |
| Parties | George F. MARTIN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jerry L. Smith, Denver, Colo., for appellant.
Erwin A. Cook, Asst. U. S. Atty., Oklahoma City, Okl. (Paul W. Cress, U. S. Atty., Oklahoma City, Okl., was with him on the brief), for United States.
Before MURRAH, Chief Judge, and BRATTON and PICKETT, Circuit Judges.
This is an appeal from the judgment of the District Court denying appellant's motion under § 2255 to vacate or modify a judgment and sentence charging the violation of the mail fraud statute. 18 U.S.C. § 1341. The background for the appeal is found in Martin v. United States, 10 Cir., 263 F.2d 516; 10 Cir., 273 F.2d 775.
The appellant first attacks the validity of the indictment for failure to state an offense under the mail fraud statute, the gist of which is (1) devising a scheme or artifice to defraud; and (2) the placing or causing to be placed in the post office establishment of the United States any letter, postcard, etc., for the purpose of effecting or carrying out the scheme. Webb v. United States, 10 Cir., 191 F.2d 512.
The indictment charged that the petitioner and another devised and intended to devise a scheme and artifice to defraud certain persons dealing in oil and gas leases and mineral deeds; and "to obtain money by the means of false and fraudulent pretenses, representations and promises, well knowing at the time that the pretenses, representations and promises would be false when made; that oil and gas lease and mineral deeds offered for sale were represented as having been transferred and sold from the owners of record to the false and fictitious name of person used, but that in each instance the name of the true owner was in fact a forgery and negotiated without the knowledge or consent of the owner of record." The second paragraph of the indictment specifically charged the use of the mails in the execution of the aforesaid scheme and artifice. The second count of the indictment reiterated the allegation in the first paragraph of the first count of the indictment and charged another and separate use of the mails in furtherance of the alleged scheme.
The test of sufficiency on motion to vacate under § 2255 is whether the indictment, when given a practical common-sense construction, can be reasonably said to inform the defendant of the charge against him, so that he can prepare his defense thereto and plead the judgment as a bar to further proceedings against him for the same offense. Marteney v. United States, 10 Cir., 216 F.2d 760; Braswell v. United States, 10 Cir., 224 F.2d 706.
The indictment was in substantially the language of the statute with sufficient particularization to inform the defendant of the nature of the offense against him, and to enable him to prepare his defense and to plead it in bar of further prosecution. It followed the suggested form 3 in the Appendices of Forms following the Federal Rules of Criminal Procedure, and it was not fatally defective. 18 U.S.C., F.R.Cr.P.App. Form 3.
The court imposed a sentence of five years on "each two counts of the indictment * * *," and ordered the sentences to run "consecutively (total ten years), and said sentences shall run consecutively with the sentence defenda...
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