United States v. Graham, 15131

• Decision Date: 30 December 1963
• Docket Number: No. 15131,15133.,15132,15131
• Citation: 325 F.2d 922
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Condon GRAHAM and Grace Cunningham Graham, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

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.

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.

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. 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 contendere and enter a plea of not guilty.

2. Motions for new trial (Nos. 15,132, 15,133)

We find it necessary to grant a new trial to defendants-appellants William Condon Graham and his wife, Grace Cunningham Graham, in the cases 15,132 and 15,133. We do this reluctantly, aware that we are dealing with a narcotics case and that, unaffected by the improprieties committed by the District Attorney, a conscientious jury might have convicted these defendants of the charges in the indictment.

The government's case against the Grahams depended almost entirely upon the testimony of one Leland R. Green, who was identified in the indictment as a non-indicted co-conspirator. While we have in mind that in its effort to combat the narcotics traffic, the government must often rely on disreputable characters to discover and convict those engaged in such business, we feel it necessary for an understanding of our decision to briefly describe the background of this witness. Leland R. Green was 36 years old at the time of his testimony and his career up to then had included a bad conduct discharge from the U. S. Navy in 1946, a conviction in 1948 of conspiracy to commit blackmail, a sentence of two years for burglary in 1950, another burglary sentence of three years in 1952, a conviction for possessing burglary tools in 1955, and a prison sentence in 1957 for the illegal carrying of a pistol. At the time of the 1961 events here involved, Green was recovering from two bullet wounds from a 45 calibre pistol. The record does not provide us with the details of this gun play. On his return to Chattanooga from the last of his trips to Mexico to purchase narcotics, he shot his wife. Here again the record is unclear as to the reason or blame for this shooting. Green had worked for Graham at a Casa Rio Supper Club in or near Chattanooga.

The charged conspiracy had its beginning when one Alley, who was then under a narcotics charge, arranged an introduction of Green to the codefendant Minnick. Minnick is claimed to have invited Green to accompany him to Mexico to purchase narcotics and asked Green if he could find a purchaser for the narcotics if they obtained them. Green said that he talked with Graham, who is alleged to have indicated that he would buy the narcotics if they...