United States v. Gernie

• Citation: 228 F. Supp. 329
• Parties: UNITED STATES of America, v. Joseph GERNIE, Defendant-Petitioner.
• Decision Date: 08 April 1964
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

228 F. Supp. 329

UNITED STATES of America, v. Joseph GERNIE, Defendant-Petitioner.

United States District Court S. D. New York.

April 8, 1964.

Schwartz, Troiano & Grant, New York City, for defendant-petitioner.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, for United States, Andrew M. Lawler, Jr., Asst. U. S. Atty., of counsel.

FREDERICK van PELT BRYAN, District Judge.

This is an application for a writ of error coram nobis under the all-writs section of the Judicial Code, 28 U.S.C. § 1651(a). The application is directed to a conviction of petitioner Gernie for violation of probation before me on October 31, 1956, and his sentence on that conviction to a prison term of a year and a day. Petitioner completed service of the sentence on August 19, 1957. He asserts that his conviction for violation of probation and the sentence imposed on him therefor were illegal and void and should now be vacated and expunged from the record.

The rather complicated background is as follows:

In June of 1944 petitioner was convicted in this court on two counts of theft from interstate commerce in violation of former Section 409 of Title 18 (now 18 U.S.C. § 659) and certain customs offenses in violation of former Section 1598 of Title 19 (now 18 U.S.C. § 549). He was sentenced to 30 days on the theft count and a year and a day on the customs offenses count. Execution of the sentence on the customs offenses count was suspended, and he was placed on probation for one year, to commence after the service of the 30 day sentence on the other count. His probation commenced on July 22, 1944.

Shortly thereafter petitioner failed to report to the probation authorities as required. After he had received warnings against repeating these derelictions, he continued to fail to report and did not do so again during the course of the probationary period. He also moved from the place where he lived without informing the probation authorities contrary to probation instructions. For these reasons, on July 30, 1945, about a week after the expiration of the probation period, a bench warrant for his arrest for violation of probation was issued by this court on application of its probation authorities made July 6, 1945, some two weeks prior to the expiration of the probation period.

No efforts were made to serve this warrant or to locate petitioner and it remained static in the files of the Probation Department until October of 1956 when petitioner was arrested on a charge of violating the narcotics laws. A routine check of the files of the Probation Department, when it was notified of his arrest, disclosed the unexecuted warrant. The warrant was only then executed.

Petitioner, then on bail on the narcotics charge, was brought before me charged with violation of the probation during the period from July 22, 1944, to July 22, 1945.

On October 30, 1956 a hearing was held on the charge. Though petitioner was represented by competent counsel of his own choosing, no objections to jurisdiction were raised based on the staleness of the warrant or the long delay in serving it. The only issue presented was whether the petitioner had in fact violated his probation.

I found the defendant guilty of that charge, revoked his probation and sentenced him to serve the original sentence of a year and a day on the customs offenses count of his June 1944 conviction, which had been suspended by the sentencing court when he was placed on probation. No appeal was taken from that conviction. As has been indicated, petitioner served this sentence and was conditionally released on August 19, 1957.

In the meantime, on February 11, 1957, petitioner had been convicted before Judge Palmieri of this court on five counts of an indictment charging him with violating and conspiring to violate the narcotics laws (21 U.S.C. §§ 173, 174, 18 U.S.C. § 371) on which he had been arrested in October of 1956. He was sentenced by Judge Palmieri to a five year prison term on Counts 2 and 3 of that indictment and a ten year prison term on Counts 5, 6, and 7, the sentences to run concurrently but consecutive to the year and a day sentence which I had imposed for violation of probation. Though petitioner was then serving the violation of probation sentence, he signed an election not to commence service of his ten year narcotics term pending disposition of his appeal from the narcotics conviction and applied for transfer from the federal penitentiary at Leavenworth to the Federal House of Detention in New York. He was advised that such transfer would be made when he completed service of the year and a day violation of probation sentence.

When petitioner was conditionally released from his year and a day violation of probation sentence on August 19, 1957, to begin service of his ten year narcotics sentence, he signed a new election not to commence his narcotics sentence pending disposition of his appeal from that conviction. He was thereupon transferred to the Federal House of Detention in New York pending such disposition. Thus, petitioner was in the Federal House of Detention in New York, unable to make bail pending disposition of his narcotics appeal, from August 20, 1957, until his conviction was affirmed on appeal, and certiorari was denied in May 1958. United States v. Gernie, 252 F.2d 664 (2 Cir. 1958), cert. den. 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed. 2d 1073. Only then did petitioner commence service of his ten year narcotics sentence, which he is still serving.

On June 27, 1960 petitioner moved before Judge Palmieri, pursuant to 28 U.S.C. § 2255, for an order vacating the narcotics judgment of conviction and the sentence imposed. Judge Palmieri denied that motion on July 15, 1960. His decision was affirmed by the Court of Appeals on February 16, 1961, 287 F.2d 637, and certiorari was denied, 368 U.S. 854, 82 S.Ct. 91, 7 L.Ed.2d 52 (1961).

On December 18, 1961, petitioner moved pursuant to Rule 35, F.R.Cr.P. for the correction of the ten year narcotics sentence imposed by Judge Palmieri and the year and a day violation of probation sentence imposed by me upon the grounds that both sentences were illegal. Judge Palmieri denied his application in a memorandum filed on March 7, 1962 in so far as it related to the sentence imposed by him, and in a memorandum filed on March 12, 1962, I denied the motion in so far as it related to the sentence I had imposed.

The next step taken by the petitioner was the present application for writ of error coram nobis addressed to me, which seeks not only to have his conviction for violation of parole and the sentence imposed thereunder invalidated, but also to have the time served under that sentence credited against the ten year narcotics sentence imposed by Judge Palmieri.

(1)

Where, as here, a sentence has been fully served, the remedies provided under 28 U.S.C. § 2255 to vacate a conviction and sentence if "in violation of the Constitution or laws of the United States," are not available. Nevertheless, proceedings in the nature of coram nobis are still authorized by the all-writs section, 28 U.S.C. § 1651(a). Upon such proceedings the case is not considered moot merely because sentence has been completed, and the court has power to vacate and set aside an illegal conviction and sentence if the proceedings are well-grounded. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). While, even on direct appeal, relief will not be afforded merely from "the moral stigma of a judgment which no longer affects legal rights," St. Pierre v. United States, 319 U.S. 41, 43, 63 S.Ct. 910, 911, 87 L.Ed. 1199 (1943), (per curiam) (alternative holding), the court will exercise its power under coram nobis where "although the term has been served, the results of the conviction may persist." United States v. Morgan, supra, 346 U.S. at 512, 74 S.Ct. at 253, 98 L.Ed. 248. See also Griffen v. United States, 173 F.2d 909 (6 Cir. 1949) (per curiam).

In the case at bar it cannot be said that the results of the conviction of the petitioner may not still persist or, that there remains only "the moral stigma of a judgment which no longer affects legal rights." The petitioner here is still serving his ten year narcotics sentence. He claims that if his year and a day violation of probation sentence is vacated, he may be entitled to some reduction in his ten year sentence by reason of credit for time already served on an invalid sentence. Should he not succeed in obtaining such credit against his narcotics sentence, the fact that he had been required to serve an overlapping sentence found to be illegal might well be taken into consideration by the prison authorities in determining the time of his release. Without expressing any views on either of these questions, which are not within my purview, there appears to be sufficient here to indicate that the results of the conviction for violation of probation may persist and may affect substantial rights of the petitioner. Since the court has power to consider petitioner's coram nobis application, and the circumstances indicate that such power should be exercised if appropriate grounds exist, the merits of the application must be considered.

(2)

Once a judgment of conviction has been entered, a prison sentence has been imposed and the defendant has begun the service of his term, jurisdiction of the court over the defendant and the criminal proceedings against him comes to an end except for such remedies as may be provided by the Federal Rules of Criminal Procedure, 28 U.S.C. § 2255, or the all-writs section, 28 U.S.C. § 1651(a).

However, where the defendant has been placed upon probation by the court under 18 U.S.C. § 3651, (Supp.1963), as amended, either after suspension of imposition of sentence or suspension of execution of a prison term, the situation is quite different. The defendant is placed under the supervision of the court through its probation officers to determine whether...