Smith v. United States
| Decision Date | 16 February 1961 |
| Docket Number | No. 16710.,16710. |
| Parties | Warren David SMITH, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Totton P. Heffelfinger, II, San Francisco, Cal., for appellant.
Charles P. Moriarty, U. S. Atty., Jeremiah M. Long, Asst. U. S. Atty., Seattle, Wash., for appellee.
Before STEPHENS, HAMLEY and HAMLIN, Circuit Judges.
Warren David Smith, a federal prisoner at Alcatraz, brought this proceeding in district court under 28 U.S.C.A. § 2255 and rule 35, Federal Rules of Criminal Procedure, 18 U.S.C.A. By these alternative means he sought to set aside sentences of twenty and twenty-five years imposed under counts II and III of an information, and to leave in effect only a ten-year sentence imposed under count I. The district court denied the relief prayed for and Smith appeals.
The relevant facts are not in dispute. On June 8 1953, indictment having been waived, a three-count information was filed charging Smith with offenses under the Federal Bank Robbery Act, 18 U.S. C.A. § 2113. In count I Smith was charged with stealing $50,000 from the Lynwood Branch of the First National Bank of Everett on May 29, 1953, in violation of 18 U.S.C.A. § 2113(b). In count II he was charged with entering that bank on that date with intent to commit larceny in violation of 18 U.S. C.A. § 2113(a). In count III he was charged with assaulting one Kenneth Killien and others and putting their lives in jeopardy by the use of a dangerous weapon while committing the offenses charged in counts I and II in violation of 18 U.S.C.A. § 2113(d).
On the day the information was filed Smith pleaded guilty to counts I, II and III in the order named. On June 22, 1953, he was convicted on all three counts in the same order. Sentence was first imposed under count III — twenty-five years imprisonment and $10,000 fine. Sentence was next imposed under count II — twenty years imprisonment and $5,000 fine. The sentence under count I was ten years imprisonment and one dollar fine. The terms of imprisonment imposed under counts I and II were to be served concurrently with that imposed under count III, but the fines imposed under each count were made independent of each other.
The judgments, sentences and commitments entered on the same day follow this same sequence of counts in adjudicating guilt and imposing sentences. Smith commenced serving the sentences on July 7, 1953. On March 22, 1957, he paid the one-dollar fine imposed under count I.
On July 14, 1958, Smith commenced the instant proceeding. In his combined section 2255 application and rule 35 motion he urged that the allegations of the three counts of the information charged only one crime. Arguing from this that the court should not have imposed three separate sentences, Smith contended that the sentences imposed under counts II and III were invalid and should be vacated.
Smith had by then served time equal to more than half of that imposed under count I and had, as noted above, paid the one-dollar fine imposed under that count. Hence the effect of an order setting aside the judgments, sentences and commitments under counts II and III, as prayed for by Smith, would have been to give him his release within five years. On the other hand any disposition of the application and motion which would leave the judgment under count III in effect would mean that Smith's term would not expire until 1978, and the $10,000 fine imposed under that count would remain undisturbed.
The district court issued an order to show cause. In its return thereto the government asserted that the application made under section 2255 was legally defective in that it did not claim the right of immediate release. The Government conceded in its return, however, the propriety of the motion made under rule 35, and acknowledged that only one sentence should have been imposed under the information.
It was the position of the Government, however, that the corrective action should be not the vacating of the sentence imposed under counts II and III, but rather the vacating of the sentences imposed under counts I and II. This would leave in effect the twenty-five-year sentence and $10,000 fine imposed under count III and in substance deny Smith any effective relief.
The course suggested by the Government in its return was adopted by the district court. In its order of September 29, 1958, now under review, the court vacated the judgments, sentences and commitments entered under counts I and II and "affirmed and confirmed" the judgment, sentence and commitment entered under count III. In all other respects the section 2255 application and the rule 35 motion were denied.
Two errors are specified, the first being that appellant did not intelligently waive the assistance of counsel in entering his pleas of guilty.
Consideration of such a question is inappropriate in a rule 35 proceeding because such a proceeding is for the correction of illegal sentences imposed under valid convictions. Green v. United States, 1 Cir., 274 F.2d 59. Such a question may be raised in a section 2255 proceeding, which is the alternative remedy here pursued. This is true because the question goes to the validity of the convictions on all counts and if decided in Smith's favor would require that all such convictions be set aside.
But while such a question may be raised in a section 2255 proceeding it was not raised in this proceeding when Smith was before the district court. In reviewing an order denying relief in a section 2255 proceeding this court will not consider contentions made for the purpose of obtaining reversal advanced for the first time in this court.1
Appellant's second specification of error is that under the circumstances of this case, the setting aside of the judgments and sentences under counts I and II, thereby leaving in effect the judgment and sentence under count III, placed him in double jeopardy, contrary to the fifth amendment.
The separate sentences imposed under counts I, II and III, all relating to the same incident which occurred at the Lynwood bank on May 29, 1953, were entered on June 22, 1953. Thereafter the Supreme Court held that the subdivisions of 18 U.S.C.A. § 2113, under which Smith was charged in the three counts, describe but one offense and that the imposition of more than one sentence was illegal. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, decided February 25, 1957.
It thus became necessary, as the Government concedes, to set aside the sentences entered under two of the counts, leaving only one in...
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