United States v. Norstrand Corporation, 269

• Decision Date: 26 May 1948
• Docket Number: No. 269,Docket 20979.,269
• Parties: UNITED STATES v. NORSTRAND CORPORATION et al. and Leif Norstrand.
• Court: U.S. Court of Appeals — Second Circuit

168 F.2d 481 (1948)

UNITED STATES v. NORSTRAND CORPORATION et al. and Leif Norstrand.

No. 269, Docket 20979.

Circuit Court of Appeals, Second Circuit.

May 26, 1948.

Carl E. Ring, of New York City, for appellants.

John F. X. McGohey, U. S. Atty., of New York City (Bruno Schachner, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

SWAN, Circuit Judge.

In November 1942 a criminal information was filed against the appellants charging them with violations of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, § 901 et seq. They pleaded guilty, and on December 8, 1942 they were sentenced jointly and severally to pay a fine of $5,000 on count one, $1,600 on two, and $500 on counts three to fifteen inclusive — a total fine of $7,100. Count one of the information charged that on March 23, 1942 the defendants paid a stated amount in excess of the maximum ceiling price for waste paper delivered to them between February 3 and February 26, 1942. Count two made a similar charge with respect to a payment on April 29, 1942 for waste paper delivered between February 2 and March 28, 1942.

The Emergency Price Control Act was approved on January 30, 1942 but did not become effective until February 11, 1942,¹ and the parties are agreed that the price schedule the defendants are charged with violating did not become effective under the Act until published on February 21, 1942. Through an oversight of their counsel, however, the defendants did not know, when they pleaded guilty, that the effective date of the price schedule was February 21, 1942. Upon being informed of this five years later, they made a motion in the district court "for relief in the nature of a writ of error coram nobis to set aside and vacate the judgment, fines and plea of guilty in this case" on the ground that counts one and two were defective because some of the transactions alleged therein occurred before the effective date of the price schedule they are charged to have violated. From a denial of this motion they have appealed.

Whether the proper procedure for obtaining such relief as the defendants sought is by writ of error coram nobis or by motion is a matter not free from doubt. In United States v. Mayer, 235 U.S. 55, at 69, 35 S.Ct. 16, 59 L.Ed. 129, the court expressly left open the question whether a writ of error coram nobis is available in the federal courts in a criminal case.² Cf. Federal Relief from Civil Judgments, 55 Yale L. J. 623, 671, where the learned authors express the view that the question should be answered in the affirmative. The Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687 deal in Rule 32(d) with setting aside a judgment of conviction and permitting the withdrawal of a plea of guilty, as follows:

"(d) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea."

This rule sets no time limitation and would appear to be applicable, though the judgment was entered before the rule was adopted. Upon...