United States v. Hardgrave
Decision Date | 09 July 1954 |
Docket Number | No. 11107.,11107. |
Parties | UNITED STATES v. HARDGRAVE. |
Court | U.S. Court of Appeals — Seventh Circuit |
Douglas F. Stevenson, Chicago, Ill., for appellant.
Joseph H. Lesh, U. S. Atty., Fort Wayne, Ind., James E. Keating, Asst. U. S. Atty., South Bend, Ind., Phil M. McNagny, Jr., Asst. U. S. Atty., Fort Wayne, Ind., James H. Pankow, Asst. U. S. Atty., Hammond, Ind., for appellee.
Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.
Defendant, Hardgrave, was indicted in September, 1951 for violating provisions of the National Firearms Act.1 A six count indictment2 was returned against him, grounded on certain requirements of that Act and charging him with various violations of it, as follows:
U. S. Code Requirement Violation of Count Title Section Section Disposition ---------------------------------------------------------------------------------- I. 26 § 2720(a) § 2726(a) Found Guilty II. 26 § 2725 § 2726(b) Dismissed by Government III. 26 § 3261(b) § 2726(a) Found Guilty IV. 26 § 2723 § 2726(a) Found Guilty V. 15 § 902(f) Found Not Guilty VI. 15 § 902(i) Found Not Guilty
After the trial jury returned its verdict, hereinabove tabulated, Hardgrave was sentenced to five years imprisonment on counts I, III and IV, respectively; each such sentence to run consecutively.
Denial, below, of defendant's petition filed under 28 U.S.C. § 2255; 28 U.S.C. A. § 2255 for correction of his sentence, precipitated this appeal. Since the reasons and grounds underlying the relief, thus sought, are embedded in several provisions of the National Firearms Act, supra, its provisions constitute the backdrop against which Hardgrave's contentions must be examined.
At the time when this defendant allegedly engaged in the proscribed course of conduct, for which he was indicted and tried, the pertinent subdivisions of § 2726,3 Subchapter B — Machine Guns and Short-Barrelled Firearms of the National Firearms Act, provided:
Counts I, III and IV, of this indictment, charged, in substance conduct under, and non-compliance with, these three sections of the National Firearms Act, supra:
The following section is under Part VIII, Firearms, chapter 27, Occupational Taxes, Subchapter A — Special provisions; 26 U.S.C.
Section 2729, of the Act, supra, contains these sanctions: "Any person who violates or fails to comply with any of the requirements of this subchapter and Part VIII of subchapter A of chapter 27 shall, upon conviction, be fined not more than $2,000 or be imprisoned for not more than five years, or both, in the discretion of the court." (Italics supplied.)
Several distinct and separate offenses are embraced by the foregoing statutory arrangement. Yet defendant contended below, and urges here, that his mere possession of a sawed-off shotgun does not constitute the series of offenses proscribed by Congress, or that several offenses cannot be derived from one act of possession. From these propositions he argues that the ceiling on his total punishment is five years, not five years imprisonment on each count, under which he was convicted.
It was held in the opinion filed below, denying Hardgrave's petition for correction of sentence, that consecutive sentences could be validly imposed under the authority of Fleish v. Johnston, 9 Cir., 1944, 145 F.2d 16 and Crapo v. Johnston, 9 Cir., 1944, 144 F.2d 863, on each count of the indictment. At the same time the trial judge noted that the: "United States erred technically" by charging that the requirements of § 3261(b), supra, had been violated under § 2726(a), supra, instead of § 2729, supra, prescribing penalties for violation of § 3261(b). But he concluded that Hardgrave was neither misled nor prejudiced because § 3261 contained the gist of this offense. Fed.R.Crim.P. 7, 18 U.S.C.A.
Despite able and capable arguments, presented to us by court appointed defense counsel, we are not persuaded that imposition of these consecutive sentences constituted error. Montgomery v. United States, 4 Cir., 1945, 146 F.2d 142, and Fleish v. Johnston, 9 Cir., 1944, 145 F.2d 16, disposed of on virtually the same issues, are determinative of the questions raised by Hardgrave. Since we are in accord with these decisions, of the Fourth and Ninth Circuits, they will be followed in the instant case.
We examined United States v. Universal C. I. T. Credit Corporation, 1952, 344 U. S. 218, 73 S.Ct. 227, 97 L.Ed. 260, where an information filed under §§ 15 and 16(a) of the Fair Labor Standards Act,4 was reviewed under a hypothesis similar to that relied upon by Hardgrave.
Mr. Justice Frankfurter spoke for the majority. Drawing upon Congressional debates5 he pointed out that:
223 U.S. at page 223, 73 S.Ct. at page 230.
Justice Frankfurter stated it was the history and language of the legislation, then before the Court, that repelled...
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United States v. Thompson
...separate offenses for possession of an unlawfully made and possession of an unlawfully transferred firearm, United States v. Hardgrave, 214 F.2d 673 (C.A.7, 1954); Montgomery v. United States, 146 F.2d 142, 143 (C.A. 4, 1944), these two separate provisions of § 5851 are not pleaded in the i......
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...enumerated sections. See: Fleish v. Johnston (9 CA), 145 F. 2d 16; Montgomery v. United States (4 CA), 146 F.2d 142; and United States v. Hardgrave (7 CA), 214 F.2d 673. Cf. Mares v. United States (10 CA), 319 F. 2d 71. While possession is an essential element of each of the several offense......
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...reference to § 16 of the 1934 Act. In any event, various sections of the Act specify separate and distinct offenses. United States v. Hardgrave, 214 F.2d 673 (7 Cir. 1954); Crapo v. Johnston, 144 F.2d 863 (9 Cir.1944), cert. denied 323 U.S. 785, 65 S.Ct. 267, 89 L.Ed. 626; Fleish v. Johnsto......
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