United States v. Fortner, Cr. No. 74-427.

• Decision Date: 28 September 1982
• Docket Number: Cr. No. 74-427.
• Citation: 549 F. Supp. 657
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America, v. James Riley FORTNER, et al., Defendants.

549 F. Supp. 657

UNITED STATES of America, v. James Riley FORTNER, et al., Defendants.

Cr. No. 74-427.

United States District Court, D. South Carolina, Spartanburg Division.

September 28, 1982.

Eric Wm. Ruschky, Asst. U. S. Atty., Columbia, S. C., for plaintiff.

Parks N. Small, Federal Public Defender, Columbia, S. C., for defendants.

ORDER ON MOTION TO DISMISS A VIOLATION, SCHEDULED TO BE HEARD AS TO DEFENDANT'S VIOLATION

HEMPHILL, District Judge.

Defendant Fortner, previously placed on probation by Order of this Court,¹ moves to dismiss the probation violation process pending, pursuant to Order of this Court of July 3, 1982. The petition, seeking a bench warrant of the court for the alleged violation, charged defendant as being:

Convicted of 4/26/82 in the Superior Court, Gaston County, North Carolina, under Indictment 81-CRS-28032 for the offense of misdemeanor larceny.

On August 6, 1982, the Public Defender, his appointed counsel, filed a motion in his behalf, "to dismiss the pending probation violation against him on the grounds that the period of probation had been completed prior to the date of the alleged activity that is the ground for violation of his probation." In support of this Motion he would show:

1. He was sentenced on March 12, 1975, after being found guilty on two counts (1 and 3) of the Indictment. As to Count 3 the sentence was five (5) years and as to Count 1, a consecutive sentence of four (4) years suspended on service of six (6) months and five (5) years probation.

2. He was paroled on his federal sentence to the State of South Carolina on November 16, 1976, after serving the custodial portion of both federal sentences.

3. The alleged probation violation in this case occurred on November 22, 1981, over five (5) years after he had been released from federal custody.

4. The probationary portion of the sentence in this case began running no later than the probationer's federal release date of November 16, 1976, so that the full five (5) year period of probation would have been completed no later than November 16, 1981, which is prior to the North Carolina offense.

As a second ground for dismissal the probationer would move to dismiss on the ground that under the principle of Wharton's Rule that the sentences in this case should have run concurrently and thus the period of probation had terminated prior to the alleged violation of probation.

DOES WHARTON'S RULE APPLY?

Wharton's Rule,² now fifty years in effect as a rule of criminal law, states:

An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the same is of such a nature as to require the participation of two persons for its commission.

The classic formulation of Wharton's Rule requires that the conspiracy indictment be dismissed before trial. Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). But as observed by the Fourth Circuit Court of Appeals in United States v. Bobo, 477 F.2d 974, 986 (4th Cir. 1973), "rather than being a rule it is a concept, the confines of which have been delineated in widely diverse fashion by the court."

Initially, this Court finds that the probationer has raised the question too late. He has in part served the sentence imposed by the Court on the Court he now seeks to attack. His attack is on the grace extended in that sentence. He has served the sentence imposed in Count 3 of the Indictment, the charge of receiving counterfeit money under 18 U.S.C. 473 and 2. Were it not for such service, or had he made his plea at the proper time, Wharton's Rule might well apply.

It is true that conspiracy under 18 U.S.C. 371 and Receiving Counterfeit moneys under 18 U.S.C. 473 are separate and distinct crimes. As part of the overt acts charged in the conspiracy count, the violation of 473 is charged in similar but not identical language to that employed in 371. We note with especial interest that under Count 3 of the Indictment, probationer is accused under the added catch-all of 18 U.S.C. 2.³ The government, by the inclusion of the addendum, practically admits the crime is of such a nature as to necessarily require the participation of two persons for its commission. 18 U.S.C. § 473 provides:

Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent that the same be passed, published, or used as true and genuine, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.

While the act of receiving necessarily involves the exchange, transfer, or delivery, from someone else to participate, the element of intent could well be missing from the act of the deliverer, so that the actual commission of the crime does not require the participation of two or more persons in the commission of the crime, as the receipt contemplates a knowledge on the part of the recipient that the paper in this case received was counterfeit. The innocence of a participant is recognized in United States v. Castens, 462 F.2d 391 (8th Cir. 1972).⁴

In view, however, of the ruling in United States v. Anzalone, 626 F.2d 239 (2d Cir. 1980) wherein defendants were charged with conspiracy to violate 18 U.S.C. §§ 472, 473 and with counts alternatively charging Anzalone with § 472 and § 473 counterfeit violations and severance was refused, this Court holds that the case at bar comes within the exception to Wharton's Rule.

Probationer's claim is further foreclosed by Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), where the court held that double jeopardy (the sine qua non of the Wharton Rule) does not bar joint prosecution, conviction, and sentencing for both a conspiracy to violate, and the actual violation, of the same statute. The crimes are said to be distinct. Callanan v. United States, 364 U.S. 587, 597, 81 S.Ct. 321, 327, 5 L.Ed.2d 312 (1961).⁵

This Court finds that Wharton's Rule does not apply and the motion is refused as to this ground of relief.

II

The defendant received a five (5) year sentence on Count 3 (18 U.S.C. § 473 and 2). On Count 3 he was given a detention sentence of five (5) years. On Count 1 (18 U.S.C. § 371), he received a consecutive sentence of four (4) years, but upon the service of six (6) months the balance of the sentence was suspended and he was placed on probation for five (5) years. The Parole Board consolidated his detention sentences for parole date purposes, and he was paroled November 16, 1976, to South Carolina custody. He was released March 30, 1979. On August 4, 1980, his parole expired and probation began. Since the probation violation occurred November 22, 1981, more than five (5) years after he was released from federal custody, but within five (5) years from the date his parole terminated, has his sentence expires, has his sentence terminated?

The judgment in this case decisively separated the two sentences which were to run consecutively. The earlier sentence had to expire before the later began. The Parole Board, which is forever trying to re-sentence,⁶ consolidated the detention part of both sentences, as a purported matter of grace to give him early parole. His probation sentence was never paroled, and that sentence never came into effect, or began to run until he had served consecutively the five (5) years and the six (6) months. The parole affected only such parts of the sentences, and, during parole he could not have been held to be in violation of a probation which at the time had not begun to run. The judgment entered a wall between the detention and the probation; the detention must be completed before the probation can be effectuated.⁷

The probationer here completed his custodial sentence and commenced service of his probation sentence August 4, 1980. On September 24, 1980, he signed the standard form acknowledging he was on probation. Probation is a sentence like any other sentence. In a multi-count context, the usual method of combining imprisonment and probation is to impose consecutive sentences, with imprisonment counts to be followed by suspended sentence (probation) counts. United States v. Entrekin, 675 F.2d 759, 762 (5th Cir. 1982), citing, Smith v. United States, 505 F.2d 893.

There is no contention the court abused the statutory discriminatory sentencing power under applicable statutes, particularly 18 U.S.C. § 3651.

The undisputed facts show that the probationer was given two separate sentences for two separate crimes. He served a part of the detention directed by the Court, part of the five (5) year sentence given for violation of 18 U.S.C. §§ 473 and 2 and a portion of the six (6) months detention given as an integral of the split sentence imposed for violation of 18 U.S.C. § 371. This Court is mindful of the able opinion in Kirk v. United States, 185 F.2d 185, 187 (9th Cir. 1950),⁸ wherein the Court held that:

A prisoner serving the first of several sentences is not serving the other sentence.

The Court makes a distinction between the powers of the Court as an instrument of the Judiciary Branch of the United States Government and the Parole Board as an instrument of the Executive Branch. Neither this Court nor any other federal court has the right to revoke or nullify a proper exercise of authority by the Board of Parole, and there is no contention by probationer...