United States v. Bremer

• Decision Date: 30 September 1953
• Docket Number: 13613.,No. 13612,13612
• Parties: UNITED STATES v. BREMER.
• Court: U.S. Court of Appeals — Ninth Circuit

207 F.2d 247 (1953)

UNITED STATES v. BREMER.

Nos. 13612, 13613.

United States Court of Appeals Ninth Circuit.

September 30, 1953.

J. Charles Dennis, U. S. Atty., John E. Belcher, Asst. U. S. Atty., Seattle, Wash., for appellant.

Charles S. Burdell, Gordon McLean Callow & Clavin C. Culp, Seattle, Wash., for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

HEALY, Circuit Judge.

This appeal is from an order granting a petition to set aside and vacate sentences and judgment against appellee, herein for convenience referred to as Bremer. The proceeding was brought pursuant to the provisions of 28 U.S.C.A. § 2255.

The record shows that on June 1, 1951, Bremer was charged by information with a violation of 18 U.S.C.A. § 2312 in that he transported a stolen motor vehicle from Miami, Florida, to Seattle, Washington, knowing it to have been stolen. At the same time he was charged by information, laid under 18 U.S.C.A. § 2314, with having feloniously transported and caused to be transported from Seattle to Chicago a falsely made and forged security, namely a forged check. After arraignment and pleas of guilty Bremer was sentenced to five years imprisonment on each charge, the sentences to run concurrently.

The Section 2255 proceeding was begun a year later and was heard before the judge who had taken the pleas and imposed the sentences. As amended by counsel appointed by the court, Bremer's petition alleged that the pleas of guilty were entered without effective assistance of counsel and "under and by reason of a misunderstanding and mistake as to the applicable law and without having been advised of the applicable law and the fact that effective defenses were available against each of the aforesaid charges; that petitioner is advised and believes * * * that at the time of accepting said pleas the court was not advised of the fact that effective defenses were available."¹ The nature of the "effective defenses" is not spelled out in the petition.

At the hearing various witnesses, including Bremer, testified. The court found that counsel, who had been appointed at the time of the arraignment, had had sufficient time to consult with the accused before entry of the pleas; that no assurances of leniency had been given; and that the pleas of guilty were entered freely and voluntarily without coercion of any sort. However, the court found that in the case involving the transportation in commerce of the allegedly stolen automobile Bremer had acquired title by means of a worthless check drawn on a bank in which he knew he had insufficient or no funds, and that before or shortly after sentence was pronounced the accused had informed his counsel to that effect. The court was of opinion that on these facts the car was not "stolen" within the meaning of that word as used in the statute, hence Bremer's plea had been entered in the erroneous belief that he was guilty of the charge laid in the information. As regards the charge under 18 U.S.C.A. § 2314, the court found that Bremer had forged the security in question in Seattle, and such being the case he had not transported it in interstate commerce as charged in the information. The conclusion drawn from these findings was that the court lacked jurisdiction to impose sentence in either of the cases. The sentences were ordered vacated and Bremer discharged from further imprisonment.

Several arguments for reversal are pressed upon us by the government. One is the general contention that in a Section 2255 proceeding only such grounds may be urged as would be available in a habeas corpus proceeding; and that a plea of guilty in circumstances such as obtained here constitutes a waiver of all nonjurisdictional defenses and an admission of all the facts averred in the indictment.² Another point relates immediately to the Dyer Act charge, that is, to the transportation in interstate commerce of the allegedly stolen motor vehicle. The government argues, and presents considerable authority in support of its position,³ that there is violation of the statute whenever the intent to steal is formed, regardless of the means by which the transporter originally came into possession of the car. Neither of these controversial questions appears to have been passed upon by this court, and for reasons to be given we feel it inopportune to rule upon them now. The court was plainly in error in vacating the sentence imposed in the case laid under 18 U.S.C.A. § 2314 and in ordering Bremer's release from imprisonment; and since his five-year term under this charge was to run concurrently with the like term imposed under the Dyer Act charge it is of no moment whether the court's ruling with respect to the latter was right or wrong.

The information under 18 U.S.C.A. § 2314 reads as follows:

"That on or about April 15, 1951, John Harry Bremer, Jr., with unlawful and fraudulent intent, did knowingly and unlawfully transport and cause to be transported in interstate commerce, to-wit, from Seattle, in the Northern Division of the Western District of Washington, to Chicago, State of Illinois, a falsely made and forged security reportedly sic signed by Hanson-Bennett Magazine Agency, by Preston C. Beck, president, payable to John H. Bremer, Jr., in the sum of $292.17, and said security was a falsely made and forged security in that the signature, `Preston C. Beck\' was false and forged and the same John Harry Bremer, Jr., at all times herein referred to knew the purported signature of Preston C. Beck was false and forged."

The record on the original hearing shows that prior to the arraignment Bremer and his counsel had received a copy of this information, and that upon arraignment the court read it to the accused and asked him whether he understood the nature of the charge, to which Bremer replied that he did. He said further that he was ready to enter his plea and that his plea was guilty.

In the instant proceeding the court apparently misconstrued both the charge and the testimony relative to it. It observed that according to the testimony of Bremer...