Sepulveda v. Squier, 12904.

• Decision Date: 29 October 1951
• Docket Number: No. 12904.,12904.
• Parties: SEPULVEDA v. SQUIER, Warden, U. S. Penitentiary, McNeil Island, Washington.
• Court: U.S. Court of Appeals — Ninth Circuit

192 F.2d 796 (1951)

SEPULVEDA v. SQUIER, Warden, U. S. Penitentiary, McNeil Island, Washington.

No. 12904.

United States Court of Appeals Ninth Circuit.

October 29, 1951.

Dario DeBenedictius, San Francisco, Cal., for appellant.

J. Charles Dennis, U. S. Atty., Guy A. B. Dovell, Asst. U. S. Atty., Tacoma, Wash., for appellee.

Before HEALY, BONE, and POPE, circuit Judges.

HEALY, Circuit Judge.

This is an appeal from an order denying a petition for a writ of habeas corpus. The record indicates that appellant was indicted for bringing into the United States, on or about April 26, 1950, four named aliens not entitled to enter the country. The indictment was in four counts, that is, it treated the bringing in of each alien as a distinct offense. The jury found the accused guilty on all counts and he was sentenced as follows: one year and a fine of $500 on count 1; one year and a fine of $500 on count 2, the imprisonment to commence upon expiration of the sentence on count 1; and one year and a fine of $1.00 on count 3, to run concurrently with count 1. On count 4 imposition of sentence was suspended and the defendant placed on probation for five years. He was committed by the Attorney General to the federal penitentiary at McNeil Island.

On the appeal in the habeas corpus proceeding the court appointed counsel to represent the petitioner, and his contentions have been thoroughly aired. The first point he makes is that the offenses charged in the four counts were all parts of a single transaction¹ and constitute but one offense; and since those charged in counts 2, 3, and 4 are identical with that covered by count 1, the sentences imposed on 2, 3 and 4 are invalid and petitioner is entitled to his liberty inasmuch as he has served the entire sentence imposed on count 1. The second claim, in the alternative, is to the effect that should the court hold the offenses to be separate, then appellant's confinement in a penitentiary rather than in jail is improper and unauthorized, it being the law, says appellant, that a person can be confined in a penitentiary without his consent only if sentenced to a term of more than one year. Several cases are cited to the proposition that sentences on separate counts may not be cumulated to determine the place of confinement.

1. The statute under which the indictment was returned is 8 U.S.C.A. § 144, the material parts of which provide: "Any person * * * who shall bring into or land in the United States, by vessel or otherwise, or shall attempt, by himself or through another, to bring into or land in the United States, by vessel or otherwise, * * any alien not duly admitted by an immigrant inspector or not lawfully entitled to enter or to reside within the United States, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding $2,000 and by imprisonment for a term not exceeding five years for each and every alien so landed or brought in or attempted to be landed or brought in." Emphasis ours.

We think, if for no other reason than the use by Congress of the italicized language, that it was not improper to indict appellant in the form followed by the grand jury here. Logically it would seem that the offense as appertaining to each alien should be set forth in a separate count so...