United States v. Graham, No. 15131

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtWEICK and O'SULLIVAN, Circuit , and McALLISTER, Senior Circuit
Citation325 F.2d 922
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Condon GRAHAM and Grace Cunningham Graham, Defendants-Appellants.
Docket NumberNo. 15131,15133.,15132
Decision Date30 December 1963

325 F.2d 922 (1963)

UNITED STATES of America, Plaintiff-Appellee,
v.
William Condon GRAHAM and Grace Cunningham Graham, Defendants-Appellants.

Nos. 15131, 15132, 15133.

United States Court of Appeals Sixth Circuit.

December 30, 1963.


325 F.2d 923

Don Moore, Jr., Chattanooga, Tenn., Moore & Wild, Chattanooga, Tenn., of counsel for defendants-appellants.

John H. Reddy, U. S. Atty., David E. Smith, Asst. U. S. Atty., Chattanooga, Tenn., for plaintiff-appellee.

Before WEICK and O'SULLIVAN, Circuit Judges, and McALLISTER, Senior Circuit Judge.

O'SULLIVAN, Circuit Judge.

In this opinion we dispose of three appeals which were heard together. In 15,131, William Condon Graham appeals from a judgment entered June 20, 1962, sentencing him to two years imprisonment upon his plea of nolo contendere to an indictment returned November 12, 1957. In such indictment, he was charged with the purchase, on or about October 27, 1957, of narcotics in violation of § 4704(a), Title 26 U.S.C.A. In 15,132, Graham appeals from a judgment, entered June 20, 1962, following his conviction by a jury of receiving and aiding in the importation of narcotics, and of conspiracy to commit such offences, (§§ 173, 174, Title 21 U.S.C.A.). These offences were alleged to have occurred during the months of August, September and October, 1961. For such violations, Graham was sentenced, as a second offender, to twelve years imprisonment on each of six counts of the indictment. The sentences were to run concurrently. In appeal 15,133, Grace Cunningham Graham, wife of defendant William Condon Graham, appeals from her conviction on two counts of the last mentioned indictment. She was sentenced to a five year prison term under each count, such terms to be served concurrently. One William R. Minnick was charged with narcotics offences in various counts of the same indictment under which the Grahams were convicted. He was convicted, but has not appealed. The appeal in 15,131 charges that the two year sentence involved was illegal because the nolo contendere plea was induced by a promise that he would not receive a prison sentence. In 15,132 and 15,133, the Grahams assert that they are entitled to a new trial because of prejudicial conduct by the District Attorney in presenting the case to the jury.

325 F.2d 924

1. Illegal sentence (No. 15,131)

By indictment returned on November 12, 1957, William Condon Graham was charged with the illegal purchase of narcotics. He pleaded not guilty. In January of 1958, a trial ended in a jury disagreement. In April, 1958, a second trial resulted in his conviction. On appeal, this Court, by opinion announced on September 18, 1958, reversed the conviction and remanded the case for a new trial, Graham v. United States, 257 F.2d 724 (CA 6, 1958). We there said that the issue of guilt was a close one. The case came on for retrial assignment on November 9, 1959, but was passed indefinitely. On October 25, 1960, the defendant Graham came into court with his attorneys and the then district attorney. He withdrew his plea of not guilty and tendered a plea of nolo contendere which, with the recommendation of the district attorney, was accepted by the District Judge. A fair reading of the transcript of the colloquy and proceedings had preliminary to the acceptance of the plea makes it clear that the plea was the product of a "settlement" arrived at between Graham's attorneys and the district attorney, and that any required prison sentence would be suspended. Answering the District Judge's question as to whether Graham knew what was involved in entering the nolo contendere plea, Graham's counsel stated:

"I think so, Your Honor, we explained it to him in detail that this is not a plea of guilty, it is not admitting his guilt in this case at all * * * the plea is made so Your Honor can dispose of this case, and it is not a plea of guilty or an admission of his guilt. * * *"

The district attorney noted that two trials had been held, with a reversal of the one conviction that had been obtained. We construe his remarks as disclosing some doubts of defendant's guilt or, at least, doubts as to his ability to convict. At that time he stated to the District Judge:

"The fact that there was a hung jury and the fact that it had been tried twice and the Court of Appeals reversed it and remanded it for a new trial * * * justice would be met if the court would impose the minimum sentence provided by the statute and suspend the execution of that sentence and impose a fine of $2,500.00."

The District Judge advised that the legal consequences of a nolo contendere plea were the same as those which follow a plea of guilty. He then entered the judgment of conviction, sentencing Graham as follows:

"It is adjudged that the defendant is hereby committed * * * for imprisonment for a period of two years. * * *
"It is adjudged that said sentence be, and hereby is, suspended, and that the defendant pay a fine of Two Thousand Five Hundred ($2,500.00) in lieu of costs, said fine to be paid within 60 days."

As discussed later, this sentence was defective for failure of the District Judge to fix a period of probation as a condition to suspending sentence. Following the entry of said judgment of October 25, 1960, defendant paid a total of $1,400.00 on the fine imposed. The matter thus remained until Graham was later charged with, and on June 14, 1962, convicted of, a subsequent narcotics offence. This conviction is involved in appeals 15,132 and 15,133. Following such successful prosecution, on June 18, 1962, the district attorney moved that the suspension of the two year sentence included in the nolo contendere "settlement" judgment of October 25, 1960, be revoked and that Graham be ordered imprisoned "for the remaining part of the original sentence." On June 20, 1962, at the same time that Graham was sentenced to twelve years imprisonment as a second offender in case No. 15,132, the District Judge granted the government's motion to revoke the suspension of sentence in the earlier case. He sentenced Graham to prison for two years, such sentence to be served concurrently with the longer sentence imposed for the second offence.

325 F.2d 925
The legality or propriety of this action would be largely academic were it not for the fact that we are, by this opinion, reversing the conviction which resulted in the longer sentence

There appears to be little question but that the October 25, 1960 suspension of the two year sentence, without putting the defendant on probation for a specified period, was not in accordance with the statute. Title 18 U. S.C.A. § 3651. Horton v. United States, 151 F.2d 406, 407 (CA 5, 1945). Cf. United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309. The suspension of the two year sentence did not constitute a final judgment and was a nullity. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129; Miller v. Aderhold, 288 U.S. 206, 53 S.Ct. 325, 77 L.Ed. 703.

The existence of a defect in the 1960 suspension of sentence does not, however, permit the United States to use this fault to violate its agreement with the defendant. If the aforesaid "deal" was not a proper way to dispose of this long pending and uncertain litigation, the entire burden of its fault should not be visited upon the defendant.

The judgment of the District Court entered on June 20, 1962, (appeal No. 15,131) is vacated and the cause remanded for resentencing defendant Graham to conform to the understanding of the parties reached at the time of the October 25, 1960 sentencing,1 or, at the option of the defendant, the judgment of conviction entered on October 25, 1960, shall be vacated and defendant allowed to withdraw his plea of nolo...

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24 practice notes
  • U.S. v. Fogel, No. 86-3063
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 15, 1987
    ...States v. Sams, 340 F.2d 1014, 1020 (3d Cir.), cert. denied, 380 U.S. 974, 85 S.Ct. 1336, 14 L.Ed.2d 270 (1965); United States v. Graham, 325 F.2d 922, 925 (6th Cir.1963); United States v. Robinson, 344 F.Supp. 956 (D.Del.), aff'd, 474 F.2d 1337 (3d Cir.1972); see also Miller v. Aderhold, 2......
  • United States v. Corson, No. 18862.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 31, 1971
    ...United States v. Sams, 340 F.2d 1014 (3rd Cir.), cert. den. 380 U.S. 974, 85 S.Ct. 1336, 14 L.Ed.2d 270 (1965); United States v. Graham, 325 F.2d 922 (6th Cir. 1963); 18 U.S.C. § 3651; cf. Miller v. Aderhold, 288 U.S. 206, 53 S.Ct. 325, 77 L.Ed. 702 (1933). Unfortunately, a sentence on one ......
  • United States v. Ellenbogen, No. 197
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 27, 1968
    ...18 U.S.C. § 3651; it has no power to suspend a sentence without also imposing a term of probation, United States v. Graham, 325 F.2d 922, 925 (6 Cir. 1963); United States v. Sams, 340 F.2d 1014, 1020 (3 Cir.), cert. denied 380 U.S. 974, 85 S.Ct. 1336, 4 L.Ed.2d 270 (1965); see also Ackerson......
  • William N. v. Kimberly H.,
    • United States
    • New York Family Court
    • May 31, 2013
    ...accord United States v. Poellnitz, 372 F.3d 562, 567–68 [3d Cir.2004];Olsen v. Correiro, 189 F.3d 52, 60 [1st Cir.1999];U.S. v. Graham, 325 F.2d 922, 928 [6th Cir.1963];Town of Groton v. United Steelworkers of America, 254 Conn. 35, 757 A.2d 501, 511 [2000];Garron v. State, 528 So.2d 353, 3......
  • Request a trial to view additional results
24 cases
  • U.S. v. Fogel, No. 86-3063
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 15, 1987
    ...States v. Sams, 340 F.2d 1014, 1020 (3d Cir.), cert. denied, 380 U.S. 974, 85 S.Ct. 1336, 14 L.Ed.2d 270 (1965); United States v. Graham, 325 F.2d 922, 925 (6th Cir.1963); United States v. Robinson, 344 F.Supp. 956 (D.Del.), aff'd, 474 F.2d 1337 (3d Cir.1972); see also Miller v. Aderhold, 2......
  • United States v. Corson, No. 18862.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 31, 1971
    ...United States v. Sams, 340 F.2d 1014 (3rd Cir.), cert. den. 380 U.S. 974, 85 S.Ct. 1336, 14 L.Ed.2d 270 (1965); United States v. Graham, 325 F.2d 922 (6th Cir. 1963); 18 U.S.C. § 3651; cf. Miller v. Aderhold, 288 U.S. 206, 53 S.Ct. 325, 77 L.Ed. 702 (1933). Unfortunately, a sentence on one ......
  • United States v. Ellenbogen, No. 197
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 27, 1968
    ...on probation," 18 U.S.C. § 3651; it has no power to suspend a sentence without also imposing a term of probation, United States v. Graham, 325 F.2d 922, 925 (6 Cir. 1963); United States v. Sams, 340 F.2d 1014, 1020 (3 Cir.), cert. denied 380 U.S. 974, 85 S.Ct. 1336, 4 L.Ed.2d 270 (1965); se......
  • William N. v. Kimberly H.,
    • United States
    • New York Family Court
    • May 31, 2013
    ...accord United States v. Poellnitz, 372 F.3d 562, 567–68 [3d Cir.2004];Olsen v. Correiro, 189 F.3d 52, 60 [1st Cir.1999];U.S. v. Graham, 325 F.2d 922, 928 [6th Cir.1963];Town of Groton v. United Steelworkers of America, 254 Conn. 35, 757 A.2d 501, 511 [2000];Garron v. State, 528 So.2d 353, 3......
  • Request a trial to view additional results

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