United States v. Coy

• Decision Date: 18 November 1944
• Docket Number: No. 19658.,19658.
• Citation: 57 F. Supp. 661
• Parties: UNITED STATES v. COY.
• Court: U.S. District Court — Western District of Kentucky

57 F. Supp. 661

UNITED STATES v. COY.

No. 19658.

District Court, W. D. Kentucky, at Louisville.

November 18, 1944.

Eli H. Brown, III, U. S. Atty., of Louisville, Ky., and David C. Walls, Asst. U. S. Atty., of Hardinsburg, Ky., for plaintiff.

James E. Fahey, of Louisville, Ky., for defendant.

MILLER, District Judge.

The defendant, Bernard Paul Coy, previously sentenced in this action on June 3, 1937, has filed a pleading styled "Defendant's Verified Motion to Vacate Sentence" in which he asks that the sentence of 20 years and a fine of $100 imposed on count 1 of the indictment returned herein be vacated, set aside, and held for naught.

The defendant was indicted in this court on May 3, 1937, for violation of Sections 2(a) and (b) of the Act of May 18, 1934, 12 U.S.C.A. § 588(b), which respectively define the offense (a) of taking or attempting to take by force from any person money or property belonging to a bank insured with the Federal Deposit Corporation, or (b) in the commission of such offense, assaulting any person, or putting in jeopardy the life of any person by use of a dangerous weapon. The first count of the indictment charged the forcible taking of money of the bank from the person of another. The second count charged the same taking by use of a dangerous weapon. Following a plea of not guilty the defendant was tried and found guilty. On June 3, 1937, he was sentenced to 20 years' imprisonment and a fine of $100 on count 1 and a year and a day imprisonment and a fine of $100 on count 2, said sentences to be served consecutively. No appeal was taken. On November 22, 1940, he moved this Court to set aside the sentence on the first count on the ground that the offense charged therein was included in the offense charged in the second count. This Court denied the motion, holding that its jurisdiction of the cause ended with the term of court in which the petitioner was sentenced. United States ex rel. Coy v. United States, D.C., 38 F.Supp. 610. On appeal from this ruling the Circuit Court of Appeals for this Circuit affirmed the order of the District Court, "upon the grounds and for the reasons set forth in the opinion of the District Judge." United States ex rel. Coy v. United States, 6 Cir., 124 F.2d 1019. The defendant then sought and was granted certiorari on a petition filed more than 30 days after the entry of judgment of the Circuit Court of Appeals. The Supreme Court held that Rule XI of the Criminal Rules, 18 U.S.C.A. following section 688, governed the petition for certiorari, that under those rules the defendant's petition was not timely filed, and therefore the Supreme Court was without jurisdiction in the matter. United States ex rel. Coy v. United States, 316 U.S. 342, 62 S.Ct. 1137, 1139, 86 L.Ed. 1517. In the concluding paragraph of its opinion the Supreme Court said: "The writ will accordingly be dismissed for failure to comply with Rule XI. We have no occasion to pass on the question whether the district court's denial of the application, on a ground which the Government suggests was erroneous, will bar a subsequent application to the district court for similar relief."

Acting upon that suggestion the defendant thereafter on June 2, 1942, filed a new application to vacate and set aside the judgment and sentence of this court. The District Court adhered to the views expressed in its first opinion, which had in the meantime been affirmed by the Circuit Court of Appeals, and denied the defendant's second application. United States v. Coy, D.C., 45 F.Supp. 499. The defendant again appealed from this ruling to the Circuit Court of Appeals, and while this appeal was pending instituted a habeas corpus proceeding in the United States District Court for the Northern District of California, in which he raised substantially the same issue as was presented in the pending appeal in the United States Circuit Court of Appeals for the Sixth Circuit. He thereafter dismissed his appeal in the Sixth Circuit. The District Court for the Northern District of California denied the writ of habeas corpus, and on the defendant's appeal from that ruling the Circuit Court of Appeals for the Ninth Circuit on June 25, 1943, affirmed that order. Coy v. Johnston, 136 F.2d 818. Defendant has now returned to this court with his third application to vacate the sentence.

The defendant's present application results from the ruling of the Circuit Court of Appeals for this Circuit in Lockhart v. United States, 6 Cir., 136 F.2d 122, decided on June 4, 1943. In that decision the Court reversed its previous ruling in United States ex rel. Coy v. United States, 6 Cir., 124 F.2d 1019, and held that the District Court did have jurisdiction to consider such an application even though made after the expiration of the term at which the defendant was sentenced. This new ruling was in accordance with a recent statement of the Supreme Court in its opinion in Holiday v. Johnston, 313 U.S. 342, 550, 61 S.Ct. 1015, 85 L.Ed. 1392. The same statute as is now under consideration was involved in the Lockhart case, and the court there ruled, in accordance with several decisions therein referred to, that the statute created only one crime, and that in the two subdivisions of the statute Congress did not intend to define two separate offenses, but only one, either aggravated or not. This ruling was followed and applied by Judge Mac Swinford of this District in United States v. Bruce, D. C., 52 F.Supp. 150, in which a defendant's application to correct the judgment in that case was sustained. Accordingly, the defendant in his present application relies upon the decision in the Lockhart case as giving this court jurisdiction to correct...