Velazquez v. Sanford, 11334.

• Decision Date: 11 July 1945
• Docket Number: No. 11334.,11334.
• Citation: 150 F.2d 491
• Parties: VELAZQUEZ v. SANFORD, Warden.
• Court: U.S. Court of Appeals — Fifth Circuit

150 F.2d 491 (1945)

VELAZQUEZ v. SANFORD, Warden.

No. 11334.

Circuit Court of Appeals, Fifth Circuit.

July 11, 1945.

Jose Cases Velazquez, in pro. per., for appellant.

M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.

Before SIBLEY, HUTCHESON, and LEE, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant was convicted in the District Court of the United States for the District of Porto Rico, upon an indictment in four counts charging violation of the Federal Fire Arms Statute,¹ and sentenced to three years on each of counts one and two, and five years on counts three and four, the sentences on these counts suspended. The judgment was affirmed,² and defendant was committed to the Atlanta penitentiary. An earlier petition for habeas corpus having resulted in an order discharging the writ and remanding the prisoner, appellant, electing not to appeal from that judgment, filed another petition, and this appeal is from the judgment discharging the second writ and again remanding petitioner.

Below appellant's attack on the judgment was centered on the ground that, based upon paragraph (f) of Section 2 of the Federal Fire Arms Act, Sec. 902(f), Title 15 U.S.C.A., it was void because the Supreme Court, in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, had held that the presumption in the last clause of Sec. 2 (f)³ was null and void.

The district judge, pointing out: That the Tot case had held invalid not the statute creating and denouncing the offense, but the presumption on which alone the conviction in that case had rested; and that, in the case at bar, the appellant had been properly charged under the statute, and proof tending to convict had been offered, held that the Tot case was without application and that no grounds for the writ were shown.

Here appellant, assuming in his brief that his conviction on the first and second grounds was invalid,⁴ directs the major part of his brief to the argument that the sentencing court had no jurisdiction of the offenses charged in the third and fourth counts, transporting a revolver, because he had already been tried and sentenced for the same offense in the Insular Court of San Juan, Porto Rico, and under People of Puerto Rico v. Shell, 302 U.S. 253, at page 264, 58 S.Ct. 167, at page 172, 82 L.Ed. 235, he has thus been placed in double jeopardy.

Appellant's assumption that this case is ruled by the decision of the Supreme Court in the Tot case or of this court in Monge v. Sanford, 5 Cir., 145 F.2d 227, is wholly unwarranted. In the Tot case, not a proceeding in habeas corpus, but a direct appeal, a conviction in New Jersey, under the interstate provisions of the act, was reversed, because the conviction rested not upon evidence that the statute had been violated but upon the presumption set up in the act. It was not decided, it was not even claimed, in that case that the act itself was invalid. Neither was the point made there that the presumption was invalid as applied to an offense committed in the territories. On June 14, 1943, just seven days after its decision in the Tot case, the Supreme Court denied Velazquez's petition for certiorari from the judgment of affirmance in his case. Reference to the opinion of the Circuit Court of Appeals shows both that the point made here against the conviction that the statute creates an unreasonable presumption of guilt was expressly made and expressly decided against him in the affirmance of his conviction,⁵ and that his guilt was established by evidence offered in the case. In these circumstances, while ordinarily the denial of a writ is not to be taken as necessarily an approval either of the opinion or the judgment, we think it may not be doubted that such denial here, within seven days after the decision in Tot's case, in the face of the claim made and adversely decided by the Circuit Court of Appeals, that the presumption created by the act was invalid and that this required a reversal of the judgment, was in effect an approval of the judgment of conviction as valid, the attack on the presumption notwithstanding, and that this question may not be again raised on habeas corpus.⁶

It is quite clear too that plaintiff's reliance on Monge v. Sanford, supra, will not do. The question there was not, as here, of the sufficiency of the evidence to support the indictment. What was in question there was whether the indictment as drawn stated an offense. What was there decided was that though the indictment did at first declare that the defendant had transported a certain firearm in interstate commerce, it followed this with "That is to say * * * had in his possession and under his control the said firearm described as aforesaid," and that because it did, the gist of the charge was not transportation but possession and...