United States v. Nelson, Cr. A. No. 5475.

• Decision Date: 14 April 1959
• Docket Number: Cr. A. No. 5475.
• Parties: UNITED STATES of America, Plaintiff, v. Johnny Arthur NELSON, Allen G. Rader, Nancy Hendricks, Defendants.
• Court: U.S. District Court — Western District of Arkansas

172 F. Supp. 86

UNITED STATES of America, Plaintiff, v. Johnny Arthur NELSON, Allen G. Rader, Nancy Hendricks, Defendants.

Cr. A. No. 5475.

United States District Court W. D. Arkansas, Ft. Smith Division.

April 14, 1959.

Defendants, pro se.

JOHN E. MILLER, Chief Judge.

The defendant, Allen G. Rader, sometimes referred to as Allen Rader, has filed a motion to vacate the sentences in D.C., 172 F.Supp. 83, in which he alleges that the sentences imposed on certain counts in the various informations are illegal because the offenses charged are merely continuation of the offenses charged in other counts.

On June 16, 1958, the defendant with two other persons appeared with their attorney, Hon. J. Sam Wood, a member of the bar of this court, waived the return of an indictment and consented that the charges be presented by an information. An information was filed in which each defendant was charged in count 1 with the offense of forging and counterfeiting a certain money order described therein. In count 2 the same parties were charged with passing, uttering and publishing as true the forged money order set out in count 1, knowing the same to have been forged.

On the same date the defendants and their attorney stated to the court that they had been arrested on charges then pending in the Northern District of Oklahoma, and expressed a desire to have the case pending therein transferred to this court. The proper procedure was followed, and the charges pending in the Northern District of Oklahoma were duly transferred under Rule 20, Federal Rules of Criminal Procedure, 18 U.S.C.A. The information in the Oklahoma case contained six counts. Counts 1, 2 and 3 charged that the defendant and others named therein on May 9, 1958, with intent to defraud, did falsely make certain money orders therein described. Count 4 charged that on the same date, May 9, the defendants, with intent to defraud, did pass and utter the forged money order described in count 1. Count 5 charged that on the same date, May 9, the defendants, with intent to defraud, did pass and utter the forged money order described in count 2. Count 6 charged that the defendants on May 9, 1958, with intent to defraud, did pass and utter the forged money order described in count 3.

On July 7, 1958, the defendant appeared with his attorney, and stated that he had been arrested on charges pending in the Western District of Michigan, District of Kansas, and Southern District of Iowa, and requested that the charges pending in those courts be transferred to this court under Rule 20, Federal Rules of Criminal Procedure. Accordingly, the cases were transferred under said procedure.

The information that was transferred from the Western District of Michigan contained four counts. Count 1 charged the defendant under the name of Allen Rader, alias Allen Hunter, on April 15, 1958, issued a money order without previously having paid the full amount of money therefor, with the purpose of fraudulently obtaining a sum of money from the United States. Count 2 charged that on the same date he issued another and different money order without having previously paid the full amount of money therefor, with the purpose of fraudulently obtaining a sum of money from the United States. Count 3 charged that on April 28, 1958, the defendant, with intent to defraud, passed, uttered and published the forged money order described in count 1. Count 4 charged that on April 28, 1958, the defendant, with intent to defraud, passed, uttered and published the forged money order described in count 2.

The case that was pending in the Southern District of Iowa was duly transferred, and therein it was charged in count 1 that the defendant and others named in the information, on May 6, 1958, unlawfully, wilfully, and with intent to defraud, passed, uttered, and published a forged United States postal money order as therein described. In count 2 it was charged that the defendant and others named therein, on May 6, 1958, did unlawfully, wilfully, and with intent to defraud, pass, utter and publish a forged United States postal money order described therein.

The case that was pending in the District of Kansas was duly transferred in accordance with the request of the defendant, and the information in that case charged in count 1 that the defendant on May 9, 1958, falsely altered in a material respect a United States money order by inserting thereon the numerically written amount of $75 in the dollar block of said order, inserting the initials "PMW" on the line designated, "Initial of Issuing Employee," and using a purported office dating stamp showing "Sacramento, California, May 3, 1958" on the face of said order. Count 2 charges that the defendant on May 9, 1958, altered another money order as therein described.

After all the cases in which the defendant had been arrested were transferred from the other Districts to the Western District of Arkansas, the defendant entered pleas of guilty to all counts contained in the informations in all the cases, and on August 1, 1958, the defendant appeared for sentence accompanied by his attorney, and after making a statement in mitigation of punishment was sentenced in Criminal Action No. 5475 to imprisonment for a period of five years on count 1 and five years on count 2, the sentence on count 2 to begin at the expiration of the imprisonment adjudged on count 1, making a total of ten years on the two counts.

In D.C., 172 F.Supp. 83, transferred from the Western District of Michigan, the defendant was sentenced to "five years on count one of the information to run concurrently with the term of imprisonment this day adjudged by this court against this defendant on count one of the information in Criminal Action No. 5475; five years on count two to begin at the expiration of the term of imprisonment herein adjudged on count one, the same to run concurrently with the term of imprisonment adjudged against this defendant on count two of said Criminal Action No. 5475; and five years on each of counts three and four of the information to run concurrently with the terms of imprisonment herein adjudged on counts one and two, and to run concurrently with the said terms of imprisonment adjudged against this defendant on counts one and two in said Criminal Action No. 5475."

In D.C., 172 F.Supp. 83, transferred from the District of Kansas, the defendant was sentenced to "five years on count one of the information to run concurrently with the term of imprisonment this day adjudged by this court against this defendant on count one of the information in Criminal Action No. 5475; and five years on count two to begin at the expiration of the term of imprisonment herein adjudged on count one, the same to run concurrently with the term of imprisonment adjudged against this defendant on count two of said Criminal Action No. 5475."

In D.C., 172 F.Supp. 83, transferred from the Northern District of Oklahoma, the defendant was sentenced to "five years on count one of the information to run concurrently with the term of imprisonment this day adjudged by this court against this defendant on count one of the information in Criminal Action No. 5475; five years on count two to begin at the expiration of the term of imprisonment herein adjudged on count one, the same to run concurrently with the term of imprisonment adjudged against this defendant on count two of said Criminal Action No. 5475; and five years on each of counts three, four, five and six of the information to run concurrently with the terms of imprisonment herein adjudged on counts one and two, and to run concurrently with the said terms of imprisonment adjudged against this defendant on counts one and two in said Criminal Action No. 5475."

In D.C., 172 F.Supp. 83, transferred from the Southern District of Iowa, the defendant was sentenced to "five years on count one of the information to run concurrently with the term of imprisonment this day adjudged by this court against this defendant on count one of the information in Criminal Action No. 5475; and five years on count two to begin at the expiration of the term of imprisonment herein adjudged on count one, the same to run concurrently with the term of imprisonment adjudged against this defendant on count two of said Criminal Action No. 5475."

On August 7, 1958, six days after the defendant had been sentenced, he filed a petition to withdraw pleas of guilty in all the cases and enter pleas of not guilty. The court denied his petition and filed an opinion, in which the court reviewed the various proceedings resulting in the imposition of the sentences. United States v. Nelson, D.C.W.D.Ark., 172 F.Supp. 83.

Subsequent to the overruling of the motion to withdraw the pleas of guilty and enter pleas of not guilty, the defendant wrote the Judge of this court several letters.¹

In this setting the petition for reduction of sentence is before the court. Specifically the defendant contends that the acts constituted only a continuing offense, and that the record shows that the postal money orders were altered at the same time, date and place, and that they were uttered and published on the same date and in the same place and that this resulted in but one offense. Thus, he contends that a reduction of five years imprisonment is necessary to correct the sentences. In other words, he contends that the forging of the various money orders and the passing, or uttering them, was one continuous act and that only one offense was committed; and that the sentence of five years on count 1 in Criminal Action No. 5475, which charged that the defendant and his associates on May 10, 1958, "with intent to defraud, did falsely make, forge and counterfeit a certain money order described as follows: United States Postal Money Order Number 4-22,271,605 in the amount of $75.00, payable to Adolph O. Dakin from Mary Ann Dakin, dated May 3, 1958, and purporting to be a money order issued by the ...