Russell v. United States

Decision Date03 August 1962
Docket NumberNo. 17477.,17477.
Citation306 F.2d 402
PartiesCharles Benton RUSSELL, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit


Marvin D. Morgenstein, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., and Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before MATHEWS, HAMLEY and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge.

Charles Benton Russell appeals from an order denying a motion, made under 28 U.S.C. § 2255, to vacate a three-year sentence imposed by a court of the United States. The sentence in question was entered following Russell's conviction, on a plea of guilty, of possessing firearms which he had unlawfully, wilfully and knowingly failed to register with the Collector of Internal Revenue.1 It was stated in the information charging the offense that this constituted a violation of 26 U.S.C. § 5851.

In his section 2255 motion Russell asserted that the conviction was actually obtained under 26 U.S.C. § 5841,2 and that this statute is unconstitutional because compliance therewith compels self-incrimination in contravention of the Fifth Amendment.

The district court denied the motion on two grounds, namely: (1) the court was not shown to have jurisdiction under section 2255 because Russell did not allege that he had completed the service of two other consecutive three-year sentences imposed at the same time in other proceedings; and (2) the statute under which the challenged conviction was obtained does not unconstitutionally compel self-incrimination. On this appeal Russell questions both of these rulings.

The Government, however, asks us not to deal with these questions, but to dismiss the appeal. It asserts that this court is without jurisdiction to entertain the appeal because, in its view, Russell has already completed service of the challenged sentence. The Government points out that the questioned sentence was the first of three consecutive three-year sentences imposed on December 7, 1956. Therefore, it is argued, Russell must have commenced service of that sentence first and must have completed such service before this section 2255 proceeding was instituted on May 24, 1961.

The Government thus seeks to invoke the rule that a collateral attack upon a sentence is mooted by completion of the challenged term of imprisonment. This rule was applied in Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963, with regard to a habeas corpus application by a state prisoner. It was implied in a note on page 575, 80 S.Ct. on page 910 of that opinion that the same rule is applicable in section 2255 proceedings by a federal prisoner, notwithstanding the "unconsidered assumption" in Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393.

But while the rule has application in a section 2255 case, it is not a valid ground for dismissing an appeal from an order granting or denying relief therein. The jurisdiction of this court depends only upon whether the jurisdictional requirements of statutes and rules pertaining to the taking of appeals have been met.

If a district court denies relief in a particular action on the ground that it lacks jurisdiction, a court of appeals has jurisdiction to entertain an appeal for the purpose of determining whether the district court correctly decided the jurisdictional question. If the holding of the district court is found to be correct, the proper appellate court action is not dismissal of the appeal, but affirmance. On the other hand, if the district court grants relief on the mistaken assumption that it has jurisdiction, an appeal may be entertained for the purpose of correcting the error, the appropriate appellate action being reversal.3

We therefore consider the argument advanced by the Government, not as one made in support of a motion to dismiss the appeal, but as an asserted ground for affirming the court's order denying relief.

So considered, the argument is without merit. Where the first of two or more consecutive sentences imposed is asserted to be invalid, the prisoner will be deemed to have been first confined under the admittedly valid sentence or sentences. See Hoffman v. United States, 9 Cir., 244 F.2d 378, 380.4 It follows that, if the conviction here in question is invalid, Russell will be deemed to have first begun service of the two valid sentences imposed at the same time. As it is not contended that Russell had, when this proceeding was instituted, already served all three consecutive sentences imposed upon him on December 7, 1956, it follows that the proceeding has not been mooted by prior service of the challenged sentence.

The first ground on which the district court denied the section 2255 motion exemplifies the opposite side of the jurisdictional coin we have been discussing. Whereas the Government has argued, on its motion to dismiss the appeal, that Russell had already completed service of the questioned sentence, the district court held that the proceeding could not be entertained because Russell had not alleged that he had begun to serve that sentence. Therefore, the court reasoned, insofar as the record indicated, the section 2255 proceeding is premature.

Section 2255 is available only to attack a sentence under which a prisoner is in custody. Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 3 L.Ed.2d 407. Thus, in a motion filed under that section, the right to be released at that time must be claimed. Miller v. United States, 9 Cir., 256 F.2d 501. Russell did not expressly claim this right in his motion and he could not make such a claim if he were still serving either of the other two three-year sentences.

On this appeal, however, the parties have stipulated that Russell completed service of the two other sentences on January 5, 1961, and was on that date entitled to his release if the sentence here questioned is not valid.5 Pursuant to 28 U.S.C. § 1653 we will therefore deem Russell's motion to be amended to add this jurisdictional allegation. In view of such amendment denial of the section 2255 motion cannot be sustained on this jurisdictional ground.6

Turning to the issue of whether 26 U.S.C. § 5841 is unconstitutional, a question as to whether Russell was convicted under that section is first presented. The district court did not question Russell's assertion that he was convicted under section 5841. Nor did the United States in its initial brief in this court. In its points and authorities thereafter filed in support of its motion to dismiss, however, the United States took the position that Russell was convicted under 26 U.S.C. § 5851 rather than 26 U.S.C. § 5841. The Government there stated: "In this case the appellant has never had Section 5841 applied to him."

If it is true that Russell was convicted and sentenced under section 5851, the constitutional question referred to above might not be presented.7 We therefore called for supplemental briefs on two questions: (1) does count 2 of the information in Cause No. 11736 charge a violation of section 5851? and (2) does that count charge a violation of section 5841?8

In the supplemental brief filed for Russell it is argued, consistent with his position throughout, that the count in question does not charge a violation of section 5851, but does charge a violation of section 5841. In the Government's supplemental brief it is contended that this count charges a violation under both sections 5851 and 5841. As to section 5841 this Government response thus completes a "does," "doesn't, "does" cycle as to whether the count in question charges a violation of that section.

On October 28, 1956, when Russell was alleged to have committed the act which led to the conviction here in question, section 5851 read as follows:

"It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811, 5812(b), 5813, 5814, 5844 or 5846, or which has at any time been made in violation of section 5821. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury."

It will be seen that, as section 5851 then read, two classifications of unlawful acts are described: (1) receiving or possessing any firearm which has at any time been transferred in violation of sections 5811, 5812(b), 5813, 5814, 5844, or 5846; and (2) receiving or possessing any firearm which has at any time been made in violation of section 5821.

Had it been alleged that the firearms allegedly possessed by Russell had been made in violation of section 5821, this might have been a sufficient charge under section 5851, even though there are several different ways whereby section 5821 may be violated.9 See Wright v. United States, 6 Cir., 243 F.2d 546. The result would possibly be the same if it had been charged that the firearms allegedly possessed by Russell had been transferred in violation of one of the six statutes referred to in the part of section 5851 relating to transferred firearms.10

But here it was not charged that the firearms allegedly possessed by Russell had been either made or transferred nor, assuming they had been either made or transferred, which if any of the statutes relating to the making and transfer of firearms, referred to in section 5851, had been violated.

This deficiency is not cured by inclusion in the count of the wholly irrelevant allegation (insofar as section 5851, as it then read, is concerned) that Russell and other defendants unlawfully, wilfully and knowingly failed to register their firearms with the Collector of Internal Revenue. Failure to register was not made unlawful by section 5851 as it read in 1956, or by any of the other sections referred to in section 5851.


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