Oxman v. United States, 13017.

• Decision Date: 18 June 1945
• Docket Number: No. 13017.,13017.
• Citation: 148 F.2d 750,159 ALR 155
• Parties: OXMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

159 ALR 155, 148 F.2d 750 (1945)

OXMAN v. UNITED STATES.

No. 13017.

Circuit Court of Appeals, Eighth Circuit.

April 23, 1945.

Writ of Certiorari Denied June 18, 1945.

William H. Howery, of Kansas City, Mo., and Maxwell P. Oxman, pro se, for appellant.

Tobias E. Diamond, U. S. Atty., of Sioux City, Iowa, for appellee.

Before GARDNER, THOMAS, and JOHNSEN, Circuit Judges.

Writ of Certiorari Denied June 18, 1945. See 65 S.Ct. 1569.

THOMAS, Circuit Judge.

This is an appeal from an order entered August 29, 1944, denying appellant's motion to vacate and correct a sentence imposed upon him at Cedar Rapids, Iowa, on February 2, 1943, upon his plea of guilty to an indictment charging him and 10 others in 23 counts with use of the mails in furtherance of a scheme to defraud in violation of 18 U.S.C.A. § 338 and in one count with conspiracy in violation of 18 U.S.C.A. § 88. The order of the court granting the appeal authorized it to be presented in forma pauperis.

The indictment was returned August 20, 1942, and an order was entered on the same day fixing the amount of bail bonds for the several defendants. The appellant furnished a bail bond, but having failed to appear for trial at the time fixed therein his bond was forfeited. Thereafter he was apprehended and lodged in jail at Cedar Rapids to await trial. On February 2, 1943, the defendants, including appellant, appeared in court, the marshal having brought the appellant from the jail where he was held. The court convened at 2 o'clock P.M. and remained in uninterrupted session until approximately 8 o'clock in the evening. All the defendants entered pleas of guilty. The court heard statements of the United States attorney and of counsel for the defendants and of several, if not all, of the defendants. Sentence was first imposed upon the defendant John Factor. The judge next pronounced sentence upon appellant, sentencing him generally on all counts of the indictment to "be committed to the Attorney General or his duly authorized agents for imprisonment for a period of 6 years and pay a fine of $2500.00."

When the court proceeded to impose sentence upon the remaining defendants a deputy marshal removed Factor and the appellant to a room in the marshal's office across the hall from the court room, the door to which was locked. The room was provided with toilet facilities and was separated from the marshal's main office by iron bars. While the court imposed sentences upon the remaining defendants, appellant and Factor were permitted to visit with attorneys for some of the defendants and with Factor's wife. When the court had sentenced all the defendants the United States attorney inquired whether it was the court's intention to sentence appellant to 6 years in the penitentiary and to pay a fine of $2500.00, whereupon the following proceedings were had:

"The Court: If I said that it was a mistake. I am depending on the records of the clerk.

"Clerk of Court, Mr. McNeeley: I understood Your Honor to say 6 years.

"The Court: Mr. Oxman should be brought back into the court room.

"Note: Mr. Oxman is returned to the court room accompanied by Deputy United States Marshal Petrus.

"The Court: The clerk of court informs me that I imposed a sentence of 6 years on you and a fine of $2500.00. If I said 6 years I made a mistake.

"If the sentence has been entered it may be vacated and set aside, and as general sentence on all Counts, it is the judgment of the court that the defendant be and he hereby is committed to the Attorney General or his duly authorized agent for a period of ten (10) years and shall pay a fine of $2500.00, and commitment in the event the fine is not paid.

"If I said six (6) years, I did not mean that, as I intended to impose the same sentence on both you and Factor, except that your fine is smaller. I am convinced that you and Factor were the dominant members of the scheme to defraud.

"Mr. Meshbesher (counsel for defendant Oxman): At this time, the defendant takes exception to the change of sentence, for the purpose of the record.

"The Court: Very well."

After these proceedings were completed, judgments and commitments were prepared and signed by the judge and all the defendants were taken to and incarcerated in the county jail to await transportation to a penitentiary to be designated by the Attorney General; and on February 4, 1943, appellant was delivered to the Warden of the federal penitentiary at Leavenworth, Kansas.

The time during which appellant remained in the room in the marshal's office was estimated by the judge to be a little more than an hour. The defendant in his motion to vacate and correct the judgment says that it was for a period of five hours. The deputy marshal testified that his reason for removing appellant during the proceedings from the court room to the marshal's office was because of appellant's request to be taken to a rest room.

After appellant's motion was filed and the date for hearing thereon had been fixed by the judge, appellant filed a motion for a "writ of habeas corpus ad prosequendum ad testificandum" asking to be brought to the court room in Cedar Rapids to testify in his own behalf at the hearing, but without stating the substance of the evidence which he deemed material. The motion was denied, and he now complains of that ruling. The complaint is without merit. Such an application is addressed to the discretion of the court and no abuse of discretion is shown. Bugg v. United States, 8 Cir., 140 F.2d 848, 850. Appellant now says that his testimony would have supported his claim that he was held in the marshal's office for five hours and that he would have contradicted the testimony of the deputy marshal to the effect that he was removed from the court room at his own request. As we shall point out hereinafter such testimony would in any event be immaterial.

Appellant's principal contention on appeal is that the room in the marshal's office to which he was removed from the court room during a part of the proceedings on February 2, 1943, is a "jail or other place of detention" within the meaning of 18 U.S. C.A. § 709a,¹ and that the time during which he was detained there was a part of the sentence first imposed upon him by the court, and that, therefore, the court was without jurisdiction to recall him and increase his sentence.

The general rule is that judgments, both civil and criminal, are within the control of the court during the term at which they are made. For that time they are deemed to be "in the...