United States v. Pruitt

• Decision Date: 14 May 1954
• Docket Number: Cr. No. 5316.
• Citation: 121 F. Supp. 15
• Parties: UNITED STATES v. PRUITT.
• Court: U.S. District Court — Southern District of Texas

121 F. Supp. 15

UNITED STATES v. PRUITT.

Cr. No. 5316.

United States District Court S. D. Texas, Corpus Christi Division.

April 17, 1954.

Supplemental Opinion May 14, 1954.

Malcolm R. Wilkey, U. S. Dist. Atty., Chas. L. Short, Asst. U. S. Atty., Houston, Tex., for plaintiff.

Hardin D. Pruitt, pro se.

ALLRED, District Judge.

On November 7, 1952, defendant was convicted by a jury of conspiracy to violate the Marihuana Tax Act (count 1) in violation of 26 U.S.C.A. § 2557(b); unlawfully acquiring marihuana (counts 4, 10) in violation of 26 U.S.C.A. § 2593 (a); and unlawfully transferring marihuana (counts 5, 7 and 11) in violation of 26 U.S.C.A. § 2591(a).

The United States Attorney having filed an information charging defendant with previous convictions for violating the Marihuana Tax Act, on February 7, 1939 and March 29, 1948, defendant was sentenced, on November 11, 1952, to two years on count 1 and ten years on the remaining counts, to run concurrently, a total of ten years. A fine of $1 was assessed on each count, to be collected on execution only.

Defendant intelligently had waived his right to counsel on the trial, after careful and repeated admonition by the court as to his right to counsel. However, after conviction, the court appointed the Honorable Jerry D'Unger, an attorney of this court, to represent defendant on the appeal. D'Unger who had represented him upon his trial in the 1948 case, prepared a proper notice of appeal in forma pauperis, including the preparation of a stenographic transcript of the proceedings. The appeal was dismissed by the Court of Appeals for the Fifth Circuit on June 5, 1953.

Defendant, now confined in the United States Penitentiary at Leavenworth, Kansas, has filed with the clerk what he styles "A motion for leave to file and to assign counsel in forma pauperis, a motion for new trial, a motion to vacate judgment and sentence and a petition for writ of habeas corpus ad prosequendum. Notice was given of the bringing on of such motions for March 20, 1954, but the court directed that such motions be submitted on March 22nd, the regular motion day, instead."

Defendant's motion for new trial reads as follows:

"Motion for a New Trial

"Based upon newly discovered evidence the defendant moves as follows:

"(1) To grant a new trial based upon newly discovered evidence.

"(2) Jurisdiction is involved under (A) Rule 33. Fed.Rules Crim. Pro.B.Rule #2 of Crim.App. rules, 1933, 292 U.S. 661 (18 U.S.C. Foll, 688c) Rule 59 Fed.Rules Civ.Proc. Supreme Court Construction: Robinson v. U. S., 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944; Chatwin v. U. S., 326 U.S. 455, 66 S.Ct. 233, 90 L.Ed. 198; U. S. v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; Cleveland v. U. S., 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12; U. S. v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610; Krulewitch v. U. S., 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790.

"(3) The defense was substantially prejudiced and deprived of a fair trial and denied due process of law as guaranteed by U. S. constitution Amendment No. 5 in that the charges as described in the indictment do not cite a violation cognizable by any U. S. Court.

"(4) The defense has just discovered this new evidence otherwise he would have admitted it during the trial stated."

Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides that a motion for new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. The decisions cited by defendant in his motion are copied exactly as they are grouped under "Supreme Court Constructions" appearing immediately after Rule 33 in the unannotated 1950 Revised (single volume) Edition published by the West Publishing Company. They are not helpful or applicable here.

The motion for new trial is wholly inadequate. Nothing is alleged as to the nature of the claimed newly discovered evidence, whether it is cumulative, or could have been discovered by diligence, etc. Even if the motion were sufficient, new trials are granted only with great caution. U. S. v. Hiss, D.C. N.Y., 107 F.Supp. 128, affirmed 2 Cir., 201 F.2d 372; certiorari denied 345 U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368. Defendant's motion for new trial is overruled.

The allegation in paragraph 3 of defendant's motion that the defense was substantially prejudiced and denied due process "in that the charges as described in the indictment do not cite a violation cognizable by any U. S. Court" are not grounds for new trial but, if true, would afford a basis for vacating the conviction under 28 U.S.C.A. § 2255. It will be discussed, therefore, under the motion to vacate.

"The Motion to Vacate

In addition to paragraph 3, quoted above, defendant alleges:

"Allegation (3)

"The petitioner is being held in unlawful confinement in violation of due process of law clauses of U. S. Const. Amend. No. 5."

"Motion to Vacate Judgment and Sentence: (28 U.S.C. 2255)

"Comes now Hardin D. Pruitt who moves the court to vacate judgment and sentence, relying on the laws as made and these indisputable facts:

"(1) The court erred and lacked jurisdiction to pronounce judgment and sentence in 1952 for alleged violation of the 1937 Marihuana Tax Act, which was repealed on Feb. 10, 1939.

"Law Relied On:

"Internal revenue code title 26, Marijuana tax act of 1939, Feb. 10, ch. 2, 53, Stat. 1-504.

"Claim:

"The sentence is void.

"Demand:

"The judgment and sentence must be vacated."

Apparently by way of summary, defendant further pleads:

"Petition for Writ of Habeas Corpus Ad Prosequendum (28 U.S.C. 2241-55)

"Comes now Hardin D. Pruitt petitioner herein who is being held in unlawful confinement, by C. H. Looney by virtue of authority issued from this court under color of a void judgment and sentence, illegally confining petitioner is direct violation of U. S. constitution Amend. #5. Said petitioner is a citizen of America by birth, of legal age and sound mind, he files because he believes his cause has merit; he believes he is entitled to redress; he petitions the court to issue the writ as prayed; for the following reasons:

"Allegation No. 1

"The judgment and sentence is void in toto because the indictment cites by reference alleged violation in 1952 of section 2591(a) title 26, U.S.C., section 2593(a) title 26 U.S.C. and twice more violation of section 2591(a) title 26 U.S.C. of the 1937 Marijuana tax act which was repealed Feb. 10, 1939.

"Allegation No. 2

"The court lacked jurisdiction to pronounce judgment and sentence because the defendant was indicted, tried convicted, and sentenced for alleged violation of a repealed act (Marijuana tax act).

"Relief Requested:

"The petitioner respectfully requests that the court issue the writ as prayed for, by issuing a writ of attachment and for subpoena for petitioner's presence in court so that he may present matters of factual evidence as well as introduce testimony to sustain his claim of illegal confinement and do all things necessary in the interest of justice the petitioner ipse dixit, requests ad prosequendum form of writ to be issued.

"Final Summary:

"By section 4 four of the codifying act of Feb. 10, 1939, all laws and parts of law embodied in the Marijuana tax act of 1937 were repealed. See: secs. 1-10 internal revenue code, also see: 3b1, comm., 130: State ex rel. Deef Fabinski, 111 Fla. 454, 52 So. 207, 210 sic. See U. S. Constitution — Amend No. 5."

Defendant's complaint, as I gather from the foregoing, boils down to this: Counts 2 and 4 charged that on the 11th and 28th days of April, 1952, he, being "a transferee required to pay the transfer tax imposed by the Marihuana Tax Act of 1937," acquired certain quantities of marihuana "without having paid the transfer tax imposed by said Act," whereas the law in effect at the time, and under which he was convicted, 26 U.S. C.A. § 2593(a), read: "It shall be unlawful for any person required to pay the transfer tax imposed by section 2590(a) to acquire * * * any marihuana without having paid such tax; * * *" (Emphasis supplied); that the Marihuana Tax Act of 1937 was repealed by the Internal Revenue Code, the Act of Feb. 10, 1939, ch. Dec. 4, 53 Stat. 1; that, therefore, defendant's conviction was void since the Marihuana Tax Act of 1937 no longer was in effect.

This attack cannot be made upon counts 5, 7 and 11 which charged, substantially in the language of the statute, that defendant unlawfully transferred to one W. H. Newkirk described quantities of marihuana "which transfer was not then and there made in pursuance of a written order of and from the said W. H. Newkirk on a form issued in blank and furnished for that purpose by the Secretary of the Treasury of the United States of America. (Vio. Sec. 2591(a)), Title 26, U.S.Code." Since defendant was sentenced to serve ten years concurrently on these valid counts, it ordinarily would be immaterial that his conviction on counts 4 and 10 were invalid. But I have concluded to write at length on the question raised as to counts 4 and 10, in view of the fact that the 10-year sentence on each count was based upon defendant's prior convictions in 1939 and 1948, and the fact that the second conviction in 1948 was upon a single count alleging that he was a transferee of marihuana "required to pay the transfer tax, as required by Section 7 of the Act of Congress of August 2, 1937, known as the `Marihuana Tax Act of 1937'"; and in view of the further fact that a series of motions to vacate similar convictions are beginning to reach the district from inmates at Leavenworth and other Federal prisons.

Section 7 of the Marihuana Tax Act of 1937 levied a tax of $1 per ounce upon transfers of marihuana by any person who had registered and paid the special tax levied by section 7 of that act; and a tax of $100 per ounce upon persons who had not registered and paid such tax. Section 8 made it...