Strickland v. United States

• Decision Date: 18 February 1963
• Docket Number: No. 58 Cr. 96.,58 Cr. 96.
• Citation: 214 F. Supp. 640
• Parties: Elliott Luis STRICKLAND, Jr., Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

214 F. Supp. 640

Elliott Luis STRICKLAND, Jr., Petitioner, v. UNITED STATES of America, Respondent.

No. 58 Cr. 96.

United States District Court E. D. Missouri, E. D.

February 18, 1963.

Ben Ely, Jr., St. Louis, Mo., for petitioner.

D. Jeff. Lance, U. S. Atty., St. Louis, Mo., for respondent.

MEREDITH, District Judge.

This matter is pending before the Court following a hearing on petitioner's Motion to Vacate a Sentence of three years imposed on April 10, 1958, by the late Judge Moore on petitioner's plea of guilty to a three-count information. Sentence of three years was likewise imposed on each of the other two counts, each to run consecutively and not concurrently, for a total of 9 years. The late Judge Moore granted the petitioner a hearing under Rule 35 of the Federal Rules of Criminal Procedure for the purpose of determining whether Counts 2 and 3 of the information constituted more than one offense.¹

The essence of the motion is this: petitioner in each count of the information was charged with willfully causing interstate transportation of a forged check in violation of § 2314 and § 2(b) of Title 18, U.S.C. A different forged check was involved in each count. However, petitioner alleges that the two separate checks involved in Counts 2 and 3 were transported together on the same day in interstate commerce; hence there was but one interstate transportation and but one offense and in accordance with Castle v. United States, 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75, and Kessel v. United States (8th C.A.), 303 F.2d 563, the sentence was illegal.

The government argues that the decisions just cited are not controlling because they involved actual transportation of forged documents, while petitioner was charged with "causing" the forged checks to be transported in interstate commerce under both § 2314 and § 2(b) of Title 18. We are of the opinion that the applicable law cannot be so distinguished. Consequently, if the checks were simultaneously transported in interstate commerce, only one offense arises under § 2314 of Title 18 under the authority of and as controlled by Castle v. United States, supra, and Kessel v. United States, supra, if such facts are proved, the sentence imposed on Count 3 is illegal and the Court is under a duty to vacate. Garrison v. Reeves (8th C.A., 1941), 116 F.2d 978; Holiday v. United States (8th C.A., 1942), 130 F.2d 988; Holbrook v. United States (8th C.A., 1943), 136 F.2d 649.

The information in Count 2 charges that on March 13, 1958, defendant caused to be transported in interstate commerce from St. Louis, Missouri, a forged check drawn on The Barnett National Bank of Jacksonville, Jacksonville, Florida, dated March 8, 1948, in the amount of $150.00, payable to Reverend Elliott L. Strickland, Jr., and signed by E. A. Paul, M.D.

Count 3 charges that on March 13, 1958, defendant caused to be transported in interstate commerce from St. Louis, Missouri, a forged check in the amount of $75.00, dated March 8, 1958, drawn on the Barnett National Bank of Jacksonville, Jacksonville, Florida, payable to Reverend Elliott L. Strickland, Jr., and signed by E. A. Paul, M.D.

The facts developed at the hearing were that petitioner on March 13, 1958, cashed the $75.00 check at Famous-Barr Company. This check was deposited at Boatmen's Bank on March 14, 1958. It probably went to the Federal Reserve Bank in St. Louis, Missouri, on March 14, 1958, and was shipped by that Bank probably on March 14, 1958, to the Federal Reserve Bank of...