United States v. Callanan

• Decision Date: 08 May 1959
• Docket Number: No. 27761.,27761.
• Citation: 173 F. Supp. 98
• Parties: UNITED STATES of America, Plaintiff, v. Lawrence CALLANAN, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

173 F. Supp. 98

UNITED STATES of America, Plaintiff, v. Lawrence CALLANAN, Defendant.

No. 27761.

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

May 8, 1959.

Wayne H. Bigler, Jr., Asst. U. S. Atty., St. Louis, Mo., for plaintiff.

Morris A. Shenker, St. Louis, Mo., for defendant.

WEBER, District Judge.

Lawrence Callanan has filed a Motion to Correct Sentence Under Count I, under Rule 35, F.R.Crim.P., 18 U.S.C., or, in the Alternative under Title 28, § 2255, U.S.C. Said defendant will hereinafter be referred to as Movant.

Movant was convicted in this Court under an Indictment in two counts charging him with conspiracy to extort in the first count and with the substantive offense of extortion in the second count. The Indictment was based upon Title 18, § 1951, U.S.C., known as the Hobbs Act, or the Anti-Racketeering Act.¹

Movant was sentenced on July 19, 1954, by the late Honorable Rubey M. Hulen, then Judge of this Court, to 12 years imprisonment upon Count I (the conspiracy), and 12 years imprisonment upon Count II (the extortion), said sentences to run consecutively and cumulatively and not concurrently, with the term imposed in Count I. However, the sentence imposed under Count II was suspended and he was placed upon probation under Count II for a period of five years, which term of probation was ordered to begin and run consecutively and not concurrently with the term of imprisonment of 12 years imposed upon defendant under Count I. (In other words, the probation period was to begin at the end of the service of the sentence imposed in Count I.)

Movant began serving his sentence immediately, but his case, along with his co-defendants, was appealed to the United States Circuit Court of Appeals for the Eighth Circuit, and the decision affirming his conviction, sentence and judgment is found in Callanan v. United States, 1955, 223 F.2d 171, certiorari denied 350 U.S. 862, 76 S.Ct. 102, 100 L.Ed. 764.

Movant's contention in his Motion for Correction of Sentence is unique. He seeks to correct the sentence under Count I contending that it is an illegal sentence when taken together with the sentence imposed on Count II; he further contends Count I and Count II are both variants of a single offense and as he received a 12-year sentence on each count, or a total of 24 years, the sentence is therefore 4 years in excess of the maximum punishment of 20 years provided in the statute; he contends that the sentence is valid to the extent of the maximum only, to wit, 20 years, and is void as to the excess of 4 years; therefore, he seeks to have the Court correct the sentence by eliminating 4 years of the excessive judgment under Count I so as to provide for imprisonment for 8 instead of 12 years.

Although the Court cannot grant the relief Movant seeks (for the reasons that will be stated in this Opinion) he is probably entitled to an "A" for ingenuity, to say the least.

Movant, in his argument and brief, runs the whole gamut of cases,² both old and new, concerning the merging of offenses into one crime and the application of the "Rule of Lenity".³

The Universal C. I. T. Credit Corp. case applied the rule of lenity to record keeping provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. holding that the Act prohibited a "course of conduct" rather than separate offenses for each breach of statutory duty; the Prince case applied the rule to the crime of entry into a bank with intent to rob and the consummated robbery; the Bell case applied the rule to transportation of two women on the same trip in violation of the statute forbidding transportation for purpose of prostitution; in the recent Ladner case the Supreme Court, in reversing and remanding to the District Court, applied the rule holding that a single discharge of a shotgun constitutes only a single violation of a statute penalizing assault on federal officers even though more than one federal officer was wounded; the Heflin case follows the rule set down in the Prince case; the Gore and Harris cases refused to apply the rule in narcotic cases where the same drug was the object of both sale and possession, holding that legislation revealed the determination of Congress to "turn the screw of criminal machinery — detection, prosecution and punishment — tighter and tighter". 357 U.S. 386, 78 S.Ct. 1283.

Movant contends that an examination of the Anti-Racketeering Act, in the light of its legislative history, suggests that while each of the disjunctive itemizations of the Act might constitute a separate crime, when standing alone, the rule of lenity should be applied when more than one of the elements exist. In other words, that while a person may be prosecuted and convicted of either of the offenses enumerated in the act, he cannot be prosecuted for more than one of these offenses, as the separate acts would merge into one offense.

The rule has been well established that where a person is charged with conspiracy to violate some federal law under the general conspiracy statute (Title 18 U.S.C. § 371) and then is charged separately with doing the substantive or overt act which is the object of the conspiracy, he may be charged, tried and sentenced separately on each count or offense. See Burton v. United States, 1906, 202 U.S. 344, 377, 26 S.Ct. 688, 50 L.Ed. 1057; United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211; Chew v. United States, 8 Cir., 1925, 9 F.2d 348; Pinkerton v. United States, 1946, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489; Lisansky v. United States, 4 Cir., 1929, 31 F.2d 846, 67 A.L.R. 67; Brown v. United States, 8 Cir., 1948, 167 F.2d 772; United States v. Rosenblum, 7 Cir., 1949, 176 F.2d 321.

In the Pinkerton case, supra, 328 U.S. loc. cit. 643, 66 S.Ct. loc. cit. 1182, Mr. Justice Douglas said:

"Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. * * * The common law rule that the substantive offense, if a felony, was merged in the conspiracy, has little vitality in this country. It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses."

To this line of cases Movant raises the charge that they refer to overt acts which are enumerated in the statutes as specific crimes and with the general statute on conspiracy. He points out that in the case at bar all the offenses, including conspiracy, are charged in just one statute and that no overt act is required.

There is no question but that the statute under which Movant was tried and convicted, neither by word nor implication, requires an overt act in its prohibition against conspiracy to obstruct commerce by extortion. Ladner v. United States, 5 Cir., 1948, 168 F.2d 771, 773, certiorari denied 335 U.S. 827, 69 S.Ct. 53, 93 L.Ed. 381.

The Circuit Court of Appeals for the 8th Circuit has affirmed conviction in cases arising under this very statute, wherein the defendants were sentenced for conspiracy and also for the overt acts of the statute. Nick v. United States, 122 F.2d 660, 669 12, certiorari denied 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550, rehearing denied 314 U.S. 715, 62 S.Ct. 411, 86 L.Ed. 570; Hulahan v. United States, 8 Cir., 214 F.2d 441, certiorari denied 348 U.S. 856, 75 S.Ct. 81, 99 L.Ed. 675.

In Nick v. United States, the Court said 122 F.2d 669:

"We are unable to get the force of the argument that the indictment is duplicitous. The counts in the indictment cover at least two conspiracies: one in connection with extorting money in return for a wage contract, and the other in connection with the employment of the Co-operative Sound Service Supply Company. Also, the indictment involves at least two separate extortion acts: the payment of $6,500.00 and the `borrowing' of $2,000."

Actually, the elements of a conspiracy are different. A substantive or overt act may be proven without involvement of a conspiracy. "It (a conspiracy) has ingredients, as well as implications, distinct from the completion of the unlawful project." (Parentheses supplied.) Pinkerton v. United States, supra, 328 U.S. loc. cit. 644, 66 S.Ct. at page 1182.

The Movant says the recent cases² show the trend toward a more lenient interpretation of these dual, or duplicitous, acts of Congress, and this Court should take it on itself to follow that trend.

A reading of those cases shows a rule of lenity applied where the intention of Congress is not clear. In Prince v. United States,² 352 U.S. at loc. cit. 325, 77 S.Ct. loc. cit. 405, the Chief Justice said:

"(This case) can and should be differentiated from similar problems in this general field raised under other statutes. The question of interpretation is a narrow one, and our decision should be correspondingly narrow."

This wording leads this Court to believe that each of these type of cases must stand on its own bottom.

In view of the long established holdings that conspiracy may be the subject of trial and sentence in connection with trial and sentence for the overt act, or result, of such conspiracy; in view of the holdings that this may be done in matters where this very act has been in question (Nick and Hulahan cases, supra); in further view that this exact issue in this particular statute and factual situation has not been passed upon in light of the recent decisions of the Supreme Court; it does not seem reasonable, nor logical, for this trial court to upset the verdict herein on the grounds of illegality of the sentence.

While arguing the "intent of Congress" herein, it might be just as reasonable and logical to say that Congress, at the time it passed this statute, knew of the long line of decisions holding conspiracy and overt acts to be separately punishable and therefore, inserted conspiracy in the Act as a separate crime. Even the use of the word "or" itself, denotes an intention to "separate" or "disjoin".

There is the further fact that ...