United States v. Rader

• Decision Date: 07 September 1961
• Docket Number: 5490.,5481,5482,5486,Crim. No. 5475
• Citation: 196 F. Supp. 841
• Parties: UNITED STATES of America, Plaintiff, v. Allen G. RADER, Defendant.
• Court: U.S. District Court — Western District of Arkansas

196 F. Supp. 841

UNITED STATES of America, Plaintiff, v. Allen G. RADER, Defendant.

Crim. Nos. 5475, 5481, 5482, 5486, 5490.

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

September 7, 1961.

Allen G. Rader, pro se.

JOHN E. MILLER, Chief Judge.

This is the fourth in a series of attempts by the defendant, Allen G. Rader, to have the court modify or set aside the sentences imposed upon his pleas of guilty to the charges contained in five separate informations bearing the numbers hereinabove set forth. United States v. Nelson et al., D.C.W.D.Ark. 1958, 172 F.Supp. 83; United States v. Nelson, et al., D.C.W.D.Ark.1959, 172 F.Supp. 86; United States v. Rader, D.C. W.D.Ark.1960, 185 F.Supp. 224, affirmed, Rader v. United States, 8 Cir., 1961, 288 F.2d 452.

The defendant, Allen G. Rader, with two others was arrested on May 12, 1958, in the Western District of Arkansas upon a Commissioner's warrant charging them in two counts with violating 18 U.S.C. § 500. All of the defendants were represented by Honorable J. Sam Wood, a reputable attorney of the bar of this court and who for 28 years was Circuit Judge of the Twelfth Circuit of the State of Arkansas. On June 16, 1958, the three defendants, with their attorney, appeared before the court, and, after being fully advised of the nature of the charges, waived in open court prosecution by indictment and consented that the charges be prosecuted upon information instead of indictment. On that day the three defendants entered pleas of guilty to Count 1 in the information and Count 2 was continued for further consideration. Immediately following the pleas of guilty, the attorney for the defendants and the defendants themselves stated that there were many charges pending against them in other districts in the United States, and that they were anxious to waive the return of indictment in the various districts so that an information could be filed and the cases transferred to the Western District of Arkansas, Fort Smith Division, under Rule 20, Fed.R.Crim.P. 18 U.S.C. In accordance with the request of the defendants, Criminal Action No. 5481 was transferred from the Western District of Michigan, Southern Division; No. 5482 was transferred from the District of Kansas; No. 5486 was transferred from the Northern District of Oklahoma; No. 5490 was transferred from the Southern District of Iowa, Eastern Division. Following the transfer of the cases, the defendant Rader was again before the court on August 1 and, upon arraignment in the four cases that had been transferred upon his motion, entered pleas of guilty to all counts in the informations filed in the transferred cases.

Also on that date the defendant Rader entered a plea of guilty to Count 2 of the information in No. 5475 which had been continued on June 16 for further consideration.

The defendants were sentenced in the various cases on August 1, 1958. The defendant Rader was sentenced on four counts in No. 5481, two counts in No. 5482, six counts in No. 5486, two counts in No. 5490, and counts 1 and 2 in the instant case, 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 of 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. 1958, 172 F.Supp. 83.

The next proceeding filed by Rader, April 10, 1959, was a motion to vacate the sentences upon the allegation that the sentences imposed on certain counts in the various informations were illegal because the offenses charged were merely continuations of the offenses charged in other counts. That motion was disposed of in United States v. Nelson, D.C.W.D. Ark.1959, 172 F.Supp. 86.

The third proceeding instituted by the defendant Rader was a motion or petition filed under Rule 35, Fed.R.Crim.P., and 28 U.S.C. § 2255, to vacate the sentence imposed on Count 2 in the instant case, No. 5475.

In the petition filed at that time he alleged, inter alia:

"The Court thus proceeded to sentence petitioner to five years on count one of case 5475 and five years consective to count one on count two. Cases 5481, 5482, 5483, 5486 were cases transferred under Rule 20 and in each case the sentence given were to run concurrently with count's one and two of case 5475. It may be noted by the record that none of the sentences in cases 5481, 5482, 5483 and 5486 are to run consecutive nor is any counts continued sic in any of these cases to run consecutive to each other, all are to run concurrent with count one and two of case 5475. Therefore, if count two of case 5475 be erronious and void. The maximum sentence can be but five years imprisonment." See page 226 of 185 F.Supp.

In the instant motion or petition styled by the defendant as "Compendum," the defendant contends that the commitment under which he is being held in prison does not conform to the sentence pronounced by the court.

The judgment, omitting the formal parts, entered in No. 5475 is as follows:

"On this 1st day of August, 1958, came the attorney for the government and the defendant appeared in person and by Mr. J. Sam Wood, his attorney, and,

"It Is Adjudged that the defendant has been convicted upon his plea of guilty of the offenses of Count One: on or about May 10, 1958, at or near Fort Smith, Arkansas, with intent to defraud, he did falsely make, forge and counterfeit U. S. Postal Money Order Number 422,271,605; and Count Two: on or about said date and place, with intent to defraud, did pass, utter and publish said money order as true knowing same to have been forged, as charged in the two counts of the information, and the court having asked the defendant whether he has anything to say why judgment should not be pronounced, and no sufficient cause to the contrary being shown or appearing to the Court, and defendant being given an opportunity to make a statement in mitigation of punishment

"It Is Adjudged that the defendant is guilty as charged and convicted.

"It Is Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of Five (5) Years on count one of the information; and Five (5) Years on count two of the information to begin at the expiration of the term of imprisonment adjudged herein on count one; making a total of ten years on the two counts.

"It Is Ordered that the Clerk deliver a certified copy of this judgment and commitment to the United States Marshal or other qualified officer and that the copy serve as the commitment of the defendant.

"/s/ Jno. E. Miller "United States District Judge"

The defendant argues that at the time the sentence was imposed that the court did not mention that the sentence on Count 2 would run consecutively to the sentence on Count 1.

The defendant has been furnished with a complete transcript of what occurred in the court at all times he was before the court and entered his various pleas of guilty and sentence was imposed. The transcript of the proceedings, certified to by the Court Reporter, beginning on page 30, states:

"Now, in Criminal Action 5475, the Western District of Arkansas, containing two counts, one for forgery of the money order and the second one for attempting to pass it, in which both defendants are charged and to which both of them have entered a plea of guilty, it is the judgment and sentence of the court that Mr. Johnny Arthur Nelson and Mr. Allen G. Rader each be delivered to the Attorney General of the United States, or his agent, who will confine them in some institution of his own choice for a period of five years on Count 1. On Count two, it is the judgment and sentence of the court that they and each of them be remanded to the custody of the Attorney General, who will confine them in some institution of his own choice for a period of five years.

"The Court: Mr. Riddle (Deputy Clerk), in drawing those commitments, I think, probably they ought to be drawn on separate commitments. Five years on each count, one and two.

"The Clerk: Consecutive?

"The Court: They are to run consecutively."

Following the pronouncement of the sentence in the instant case, No. 5475, the court proceeded to impose sentences in the other cases that had been transferred, but apparently the defendant is not attacking in this proceeding any of the sentences that were imposed in the transferred cases.

Beginning at the bottom of page 32 of the transcript and at the conclusion of the imposition of the sentences in all of the cases, the court advised the defendants Nelson and Rader that the sentences in the transferred cases were to run concurrently with the sentences in 5475, and said:

"In other words, young men, you have been sentenced on each and every count which is charged for a period of five years. You will be required to serve under the order of the court a sentence of five years on Count 1 and a sentence of five years on Count Two in Criminal Action 5475, the Fort Smith Division. Other sentences in the other cases will run concurrently with those. I hope you will so conduct yourselves that you can earn enough good time to get out of there within a reasonable time and that you will be able to rehabilitate yourselves."

The defendant understood fully and completely at that time that the court intended for him and his co-defendant, Nelson to serve ten years, five on Count 1 and five on Count 2, and that the sentence on Count 2 would run consecutively to the sentence on Count 1.

See, also, correspondence of defendant appearing in footnote 1, 172 F.Supp. at pages 89 and 90.

Notwithstanding the recitals contained in the record, the defendant contends that the court did not order that the sentence on Count 2 in 5475 should run consecutively with Count 1 in the same case and, therefore, the commitment is void because it...