United States v. Koury, 15274.
| Decision Date | 26 June 1963 |
| Docket Number | No. 15274.,15274. |
| Citation | 319 F.2d 75 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mike J. KOURY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Mike John Koury, in pro. per.
Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, for appellee.
Before CECIL, Chief Judge, MILLER, Circuit Judge, and BROOKS, District Judge.
This is an appeal from an order of the United States District Court for the Northern District of Ohio, Eastern Division, denying the petition of the defendant-appellant for correction of sentence. The appellant, Mike John Koury, was jointly indicted, with one Beverly Ruth Osborne, a. k. a. Beverly Ruth Lane, on a three-count indictment charging robbery of three banks, in violation of Section 2113(a) (d), Title 18, U.S.C. Each count charged that the defendants put in jeopardy the lives of the custodian of the money by the use of pistols.
The defendants were tried jointly before a jury and were found guilty on all three counts. On April 24, 1961, the defendant Mike John Koury was sentenced to the custody of the Attorney General for 20 years on count one and to 10 years on each of the other two counts. The two 10-year sentences were to run concurrently with each other and consecutively with the sentence on count one, a total of 30 years. Koury's co-defendant Osborne was sentenced on May 4, 1961, to the custody of the Attorney General for 8 years on each count, the sentences to run concurrently. No direct appeal was taken from these convictions and sentences.
The defendant Koury filed a petition for correction of sentence on November 16, 1962. In filing this petition the defendant invoked the jurisdiction of the court pursuant to Rule 35 of the Federal Rules of Criminal Procedure. The pertinent part of this rule is as follows: "The court may correct an illegal sentence at any time."
The sole question raised by the defendant in his petition is whether the court could impose consecutive sentences on the different counts of the indictment. This is one of the questions presented on the appeal. The defendant concedes that, in accordance with Rule 8(a), two or more offenses may be charged in the same indictment. That the defendant was properly charged on the three separate offenses in different counts of the same indictment is not open to question. Pummill v. United States, 297 F.2d 34, 35, C. A.8; United States v. Woykovsky, 297 F.2d 179, C.A.7, cert. denied 369 U.S. 867, 82 S.Ct. 1034, 8 L.Ed.2d 86; Terry v. United States, 310 F.2d 715, C.A.5.
The defendant concludes through an erroneous interpretation of Rule 13 that consecutive sentences may not be given. The pertinent part of this rule provides: The defendant interprets the phrase "single indictment" to mean "single crime." The purpose of this rule can be well illustrated by a reference to this case. The defendant having committed three different robberies could have been indicted on three separate indictments. Had he been so indicted the court could have, under Rule 13, ordered all three indictments tried together. This means that the defendant would have been tried as though there were three counts in one indictment. If the defendant had been indicted on three separate indictments and tried separately, he could have received the maximum sentence of 25 years in each case and they could have been made to run consecutively for a total of 75 years. Rule 13 has no relation to the provision of Rule 8(a) that more than one offense may be included in one indictment. Neither does the phrase "single indictment" in Rule 13 mean one sentence nor change the effect of being indicted for three separate crimes whether in one indictment or separately.
The District Judge denied the defendant's petition in an order as follows: "It is ordered that the petition of Defendant Mike John Koury for correction of sentence is hereby overruled." One of the assignments of error on the appeal is that the trial judge did not make findings of fact and...
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