Strickland v. United States
| Decision Date | 08 January 1964 |
| Docket Number | No. 17318.,17318. |
| Parties | Elliot Luis STRICKLAND, Jr., Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ben Ely, Jr., St. Louis, Mo., for appellant.
William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee, and Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., on the brief.
Before MATTHES and MEHAFFY, Circuit Judges, and MICKELSON, District Judge.
Appellant, Strickland, has appealed from an order denying correction of sentence under Rule 35, Federal Rules of Criminal Procedure.
On March 28, 1958, appellant, appearing with court appointed counsel, waived prosecution by indictment and consented to be proceeded against by information. The information charged appellant with willfully causing interstate transportation of three forged checks, each check a separate count, in violation of sections 2314 and 2(b) of Title 18 U.S.C.A. That same day, upon arraignment, a plea of guilty was entered to each of the three counts. On April 10, 1958, appellant was sentenced to three years imprisonment on each count, the sentences to run consecutively, for a total of nine years imprisonment. No issue is raised as to the validity of the sentence imposed under Count 1.
The late Judge Moore granted appellant a hearing under Rule 35 for the purpose of determining whether Counts 2 and 3 of the information constituted more than one offense under the rule laid down in Castle v. United States, 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75 (1961), and followed in Kessel v. United States, 303 F.2d 563 (8 Cir. 1962), wherein it was held that simultaneous interstate transportation of more than one falsely made money order constituted a single offense under 18 U.S.C.A. § 2314.
At the hearing below, Judge Meredith presiding, 214 F.Supp. 640 (E.D.Mo. 1963), held that if the checks in Counts 2 and 3 of the information were simultaneously transported in interstate commerce, the same would constitute only one offense under 18 U.S.C.A. § 2314, Castle and Kessel, supra. He further held that the appellant failed to sustain his burden of proving that the checks were simultaneously transported in interstate commerce, and stated, at page 642, of 214 F.Supp.
"At best the facts shown by the petitioner raise only the possibility that the checks in Count 2 and Count 3 may have been transmitted in the same shipment by the Federal Reserve Bank at St. Louis, Missouri, to the Federal Reserve Bank at Jacksonville, Florida."
Count 2 of the information charged that on or about March 13, 1958, the appellant caused to be transported in interstate commerce from St. Louis, Missouri, a forged check drawn on the Barnett National Bank of Jacksonville, Florida, dated March 8, 1958, in the amount of $150.00, payable to Reverend Elliot L. Strickland, Jr., and signed E. A. Paul, M.D. Count 3 of the information is identical except that the check was for the amount of $75.00.
The evidence at the hearing disclosed that both checks were cashed the same day, March 13, 1958, in St. Louis, Missouri, each at a different business establishment. The $75.00 check was cashed at Famous-Barr Co. and was deposited in Boatmen's National Bank, St. Louis, on March 14, 1958. Under ordinary business practices, it would have been sent to the Federal Reserve Bank of St. Louis and by it transmitted to the Federal Reserve Bank of Jacksonville, Florida, that same day. March 14, 1958, was a Friday. On March 17, 1958, this check was sent by the Federal Reserve Bank of Jacksonville, Florida, to the Barnett National Bank of Jacksonville, Florida, and was received by said bank that same day. It was not shown when this check was received by the Federal Reserve Bank of Jacksonville. This $75.00 check was produced at the hearing by an employee of Famous-Barr Co. The $150.00 check was cashed at the...
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Gilinsky v. United States
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