Simmons v. United States

• Decision Date: 15 April 1937
• Docket Number: No. 8075.,8075.
• Citation: 89 F.2d 591
• Parties: SIMMONS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

89 F.2d 591 (1937)

SIMMONS v. UNITED STATES.^*

No. 8075.

Circuit Court of Appeals, Fifth Circuit.

April 15, 1937.

Walter C. Linden, Jr., Walter P. Luck and Marvin B. Simpson, all of Fort Worth, Tex., and J. Forrest McCutcheon, of Oklahoma City, Okl., for appellant.

Clyde O. Eastus, U. S. Atty., of Fort Worth, Tex., and Joe H. Jones and Clyde G. Hood, Asst. U. S. Attys., both of Dallas, Tex., for the United States.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

FOSTER, Circuit Judge.

Appellant was convicted on five counts of two indictments consolidated for trial. Indictment 6512 had but one count and charged appellant Simmons, together with Miller, Greene, Halfin, and Regan, with conspiring to violate title 18, U.S.Code, § 338 (18 U.S.C.A. § 338), by operating a scheme to defraud by use of the mail. Indictment 6520 was in four counts. Count 4 charged a different but similar conspiracy between Simmons, Miller, and Greene to violate the mail fraud statute. The first, second, and third counts of indictment 6520 each charged the substantive offense of mailing a letter in furtherance of the fraudulent scheme, respectively to W. H. Ackerman, C. C. Godfrey, and Z. R. Stocker, with intent to defraud said named persons. There are thirty-six assignments of error. As usual when the assignments are so multiplied, most of them are without substance and will require no discussion.

The case went to trial at Fort Worth before the Honorable T. Whitfield Davidson, District Judge, on March 10, 1936. On March 9, 1936, appellant presented a petition to disqualify the judge, under the provisions of section 21, Judicial Code (28 U. S.C.A. § 25). The affidavit in support thereof, on information and belief, alleged that Judge Davidson had represented one Jimmie Cox and wife, Margaret Cox, in certain legal matters until a short time before taking his oath of office as judge; that Harry W. Greene, one of the defendants in the case on trial, is related to Jimmie Cox and wife and will be an important witness for the government against petitioner; that Margaret Cox had been subpœnaed as a witness for the government in the case; that the court is friendly inclined towards Cox and wife and Greene, and that by reason of these facts petitioner verily believed that the court has a personal bias and prejudice against him and in favor of his codefendant, Harry W. Greene. The motion to disqualify was overruled by Judge Davidson. Error is assigned to that action.

As indictment 6520 was not returned until March 9th, which was the first day of the term, we will assume that good cause is shown for not filing the petition sooner. However, it is settled that an affidavit of disqualification under the section must state facts showing the personal prejudice of the judge against the defendant and not baseless conclusions. The judge may not consider whether the facts are truthfully recited, but he may pass upon their sufficiency as showing personal prejudice. We agree with the District Court in his ruling that the facts alleged were insufficient to show good cause for recusation within the letter and intent of the statute. Berger v. U. S., 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Wilkes v. U. S. (C.C.A.) 80 F.(2d) 285.

Error is assigned to the refusal of the court to direct a verdict for defendant on each count of the indictments. Without stopping to review the evidence in full, it is sufficient to say there was evidence before the jury tending to show the fraudulent character of the schemes; the participation of appellant in them; the existence of the conspiracy between the persons named; the doing of overt acts charged as in furtherance of the conspiracies and the mailing of the three letters charged as substantive offences. It is contended that there was no evidence that the letter sent to Ackerman, forming the basis of count 1 of indictment 6520, was mailed at Fort Worth and therefore jurisdiction of the court on that particular count was not shown. This point was not raised in the trial court. The introduction of the letter in evidence was objected to but not on that ground. The indictment alleged the letter was mailed at Fort Worth. There was evidence tending to show the following facts. Some 60 to 70 letters, all of the same tenor as those charged in the indictment, were mimeographed at Fort Worth and were addressed by several stenographers, one of whom was Mrs. Greene, the wife of a codefendant, who pleaded guilty. Practically all of these letters were mailed at Fort Worth to intended victims. All the defendants lived in Fort Worth. Greene, a codefendant, testified he mailed the letters to Godfrey and Stocker, forming the basis of counts 2 and 3 of indictment 6520, at Fort Worth. He also testified he mailed the letter to Ackerman but did not say he mailed it at Fort Worth. He was not cross-examined on this. It appears from his testimony that he went to places other than Fort Worth in execution of the scheme but did not leave Fort Worth to go to these other places until after the letters had been mailed. At most, the objection would go to the venue of the court. The crime was committed by the mailing of the letter, and appellant could have been prosecuted either at the place where it was mailed or where it was taken from the mail. Because of the absence of evidence tending to show that the Ackerman letter was not mailed at Fort Worth, and the failure of appellant to bring that particular point to the attention of the trial court, we consider there was evidence before them sufficient to permit the jury to find that the Ackerman letter was mailed at Fort Worth. The assignments running to the want of substantial evidence to sustain the verdict present no grounds for reversal.

Error is assigned to the sentence imposed. The record discloses the following facts: The verdict of guilty was returned against appellant on March 12, 1936, and he was remanded to the custody of the marshal to await sentence. On March 17, 1936, judgment on the verdict was entered. Appellant was sentenced to imprisonment of seven years on count 1 and to pay a fine of $10,000 on count 2 of indictment 6520, and in default of the payment of the fine to be further imprisoned in accordance with section 1042, Rev.Stat. (18 U.S.C.A. § 641). A general sentence of five years' imprisonment was imposed on counts 3 and 4 of indictment 6520 and on indictment 6512. Execution of sentence on these last three counts was suspended for five years and defendant was placed on probation, to begin at the expiration of the sentence on the first and second counts of indictment 6520. The judgment directed the marshal to transport defendant from the Tarrant county jail at Fort Worth, Tex., to the United States Penitentiary at Leavenworth, Kan., where the sentence was to be executed.

On June 27, 1936, the United States Attorney filed a petition in this court for an order to supplement the record. This was argued and submitted with the merits. From this application, and the certificate of the clerk annexed, it appears that on May 27, 1936, the District Judge, on notice to appellant, but in his absence, entered an order to correct the minutes and rendered an entirely new judgment, which imposed a sentence of two years' imprisonment on indictment 6512, instead of a suspended sentence, and a sentence of five years' imprisonment on count 1 of indictment 6520, instead of seven years, service of the sentence to commence at the expiration of the sentence on indictment 6512, and imposed a fine of $10,000 on count 4 of indictment 6520, instead of a suspended sentence of imprisonment. The new judgment imposed a sentence of three years' imprisonment on count 2 and two years' imprisonment on count 3 of indictment 6520, these last two sentences to be suspended as provided in the original sentence. In support of the motion it is contended by the United States that the term at which the original sentence was imposed had not expired and the District Court had jurisdiction to enter an order correcting the minutes and to then conform the sentence to the corrected minutes.

For the purpose of considering the petition we accept its allegations as true and take notice that the term had not expired. It may be conceded, as a general proposition, that, within the term, the trial court has control over any judgment rendered and may correct the minutes to have them conform to what was actually done at the time the judgment was entered. But this rule is subject to exceptions. In Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, it was held that after a defendant has begun to serve his sentence the trial court is without power to amend it so as to increase the penalty. In U. S. v. Murray, 275 U.S. 347, 48 S.Ct. 146, 149, 72 L.Ed. 309, it appears that Murray was granted probation within the term, but after he had served one day of his sentence. The Supreme Court held this could not be done and stated the rule broadly, as follows: "The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it." In U. S. v. Benz, 282 U.S. 304, 51 S.Ct....