United States v. Nickerson, 11052.

• Citation: 211 F.2d 909
• Decision Date: 13 April 1954
• Docket Number: No. 11052.,11052.
• Parties: UNITED STATES v. NICKERSON.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

211 F.2d 909 (1954)

UNITED STATES v. NICKERSON.

No. 11052.

United States Court of Appeals, Seventh Circuit.

April 13, 1954.

John David Nickerson, in pro. per.

Robert Tieken, Irwin N. Cohen, U. S. Attys., John Peter Lulinski, Anna R. Lavin, Asst. U. S. Attys., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.

SWAIM, Circuit Judge.

This appeal is from an order of the District Court denying the motion of the appellant, John David Nickerson, hereinafter referred to as the defendant, to vacate the judgments and sentences which the trial court entered upon the defendant's plea of guilty to two indictments. The first indictment, returned in the Northern District of Illinois on November 28, 1952, charged the defendant and another with having in their possession in the Northern District of Illinois on November 19, 1952, knowing it to have been stolen, 300 bottles of Hiram Walker Imperial Whiskey, of a value in excess of $100, which had been stolen from an interstate shipment in violation of 18 U.S.C.A. § 659. The second indictment, filed March 24, 1953, in the Eastern District of Illinois, was transferred at the request of the defendant to the Northern District of Illinois for disposition after the defendant had indicated that he desired to enter a plea of guilty. This second indictment charged the defendant and others, in the first count, with violating 18 U.S.C.A. § 659, in that they, on November 18, 1952, had in their possession in the Eastern District of Illinois, 23½ cases of Hiram Walker Imperial Blend Whiskey which had been stolen from an interstate shipment and which the defendants knew had been stolen. The second count of the indictment charged the defendant and others with conspiring in the Eastern District of Illinois to violate Section 659, as charged in count one.

On June 2, 1953, the defendant, appearing in person and by counsel, entered a plea of guilty to both indictments, and the court imposed a sentence of five years on the first indictment and a sentence of five years on each count of the second indictment, all three of the sentences to run concurrently.

On August 17, 1953, the defendant filed his motion to vacate and set aside the judgments and sentences on both indictments. The defendant contended that the indictments were defective in that they neither set forth the exact quantity of the whiskey involved nor stated its exact value; and, secondly, that the offenses charged in the first indictment and in the first count of the second indictment arose out of the same act and that prosecution on both offenses constituted double jeopardy. The trial court appointed counsel to represent the defendant on his motion, heard arguments thereon, examined the files and records in the two criminal causes, and correctly held that the defendant was entitled to no relief on either of the grounds stated in the motion.

The defendant's first alleged ground for setting aside the judgments and sentences was that the first indictment was defective in that it only described the amount of the whiskey involved as being "300 bottles," and the value thereof as being "in excess of $100.00." But a mere defect in an indictment may not be attacked collaterally under a motion to set aside the judgment and sentence. Kreuter v. United States, 10 Cir., 201 F.2d 33, 35; Barnes v. United States, 8 Cir., 197 F.2d 271, 273; Keto v. United States, 8 Cir., 189 F.2d 247, 251.

At the time the defendant pleaded guilty to these indictments he was represented by counsel and he does not contend that he was in any manner confused or misled by the indictments as to the crime with which he was charged. The indictment was, therefore, sufficient to withstand even a direct attack. It charged every substantive element of the offense and informed the defendant of the charge against him in such a manner as to enable him to prepare his defense at his trial and to plead former jeopardy at any future trial. The defendant's failure to make a timely objection, by a motion, to such a defect in the indictment constitutes a waiver. United States v. Williams, 5 Cir., 203 F.2d 572. Rule 52(a) of the Federal Rules of Criminal Procedure, 18 U.S. C.A., expressly provides that on appeal "any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. * * *" The failure of the first indictment to state the exact quantity of the whiskey involved and its exact value certainly could not affect any rights of the defendant.

Nor do the first indictment and the first count of the second indictment constitute double jeopardy by charging the same offense, as contended by the defendant. The first indictment charged possession by the defendant of certain whiskey in the Northern District of Illinois on or about November 19, 1952. The first count of the second indictment charged possession by the defendant on November 18, 1952, in Kankakee, Illinois, in the Eastern District of Illinois. The second count of the second indictment charged the defendant with having conspired with others, on or about November 18, 1952, in the Eastern District of Illinois to violate 18 U.S.C.A. § 659, and of having, pursuant to said conspiracy, violated the said section in the ...