George F. Martin v. United States, 285 F.2d 150, 10th Cir. (1960)
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Scribd Government DocsGeorge F. Martin v. United States, 285 F.2d 150, 10th Cir. (1960)
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Scribd Government Docs285 F.
2d 150
George F. MARTIN, Appellant,
v.
UNITED STATES of America, Appellee.
No. 6414.
United States Court of Appeals Tenth Circuit.
Nov. 16, 1960, Rehearing Denied Dec. 9, 1960.
Jerry L. Smith, Denver, Colo., for appellant.
Erwin A. Cook, Asst. U.S. Atty., Oklahoma City, Okl. (Paul W. Cress,
U.S. Atty., Oklahoma City, Okl., was with him on the brief), for United
States.
Before MURRAH, Chief Judge, and BRATTON and PICKETT, Circuit
Judges.
MURRAH, Chief Judge.
This is an appeal from the judgment of the District Court denying appellant's
motion under 2255 to vacate or modify a judgment and sentence charging the
vaiolation of the mail fraud statute. 18 U.S.C. 1341. The background for the
appeal is found in Martin v. United States, 10 Cir., 263 F. d 516; 10 Cir., 273
F.2d 775.
The appellant first attacks the validity of the indictment for failure to state an
offense under the mail fraud statute, the gist of which is (1) devising a scheme
or artifice to defraud; and (2) the placing or causing to be placed in the post
office establishment of the United States any letter, postcard, etc., for the
purpose of effecting or carrying out the scheme. Webb v. United States, 10 Cir.,
191 F.2d 512.
The indictment charged that the petitioner and another devised and intended to
devise a scheme and artifice to defraud certain persons dealing in oil and gas
leases and mineral deeds; and 'to obtain money by the means of false and
fraudulent pretenses, repersentations and promises, well knowing at the time
that the pretenses, representations and promises would be false when made; that
oil and gas lease and mineral deeds offered for sale were represented as having
been transferred and sold from the owners of record to the false and fictitious
name of person used, but that in each instance the name of the true owner was
in fact a forgery and negotiated without the knowledge or consent of the owner
of record.' The second paragraph of the indictment specifically charged the
used of the mails in the execution of the aforesaid scheme and artifice. The
second count of the indictment reiterated the allegation in the first paragraph of
the first count of the indictment and charged another and separate use of the
mails in furtherance of the alleged scheme.
4
The test of sufficiency on motion to vacate under 2255 is whether the
indictment, when given a practical common-sense construction, can be
reasonably said to inform the defendant of the charge against him, so that he
can prepare his defense thereto and plead the judgment as a bar to further
proceedings against him, for the same offense. Marteney v. United States, 10
Cir., 216 F.2d 760; Braswell v. United States, 10 Cir., 224 F.2d 706.
The indictment was in substantially the language of the statute with sufficient
particularization to inform the defendant of the nature of the offense against
him, and to enable him to prepare his defense and to plead it in bar of further
prosecution. If followed the suggested form 3 in the Appendices of Forms
following the Federal Rules of Criminal Procedure, and it was not fatally
defective. 18 U.S.C., F.R.Cr.P.App. Form 3.
The court imposed a sentence of five years on 'each two counts of the
indictment * * *,' and ordered the sentences to run 'consecutively (total ten
years), and said sentences shall run consecutively with the sentence defendant
is now serving * * *.' The contention is that the use of the words 'consecutively
with' does not indicate with sufficient clarity that the sentences imposed are to
be served consecutively to the sentence he was serving at the time of the
imposition of these sentences. The same contention with respect to the meaning
of these critical words was made in Hiatt v. Ellis, 5 Cir., 192 F.2d 119, 120, and
Fulton v. United States, 5 Cir., 250 F.2d 281. In the Hiatt case, the Fifth Circuit
thought that 'it would be difficult to choose two words better able than the
words employee here to put in brief compass the idea of cumulative service, the
service of one sentence following in the train of, succeeding, the other sentence
referred to.' And, we agree that the language clearly and unmistakably indicates
an intention that the sentences shall be served consecutively.
The petitioner also complains of the failure of the trial court to consider his
motion to disqualify himself from further consideration of the case after having
denied petitioner's motions, resulting in the previous appeal in 273 F.2d 775. It
is sufficient to say that in the first place, the motion does not comply with the
statutory requirements for the disqualification of a trial judge. See 28 U.S.C.
144; Skirvin v. Mesta, 10 Cir., 141 F.2d 668; Scott v. Beams, 10 Cir., 122 F.2d
777. But even so, the adverse rulings of the court are not legal grounds for
disqualification. See Palmer v. United States, 10 Cir., 249 F.2d 8.
8
The record shows that the petitioner appeared in court represented by counsel
os his own choice and entered a plea of guilty after having first pleaded not
guilty. Upon entry of the guilty plea through his attorney, and at the suggestion
of the United States Attorney, the petitioner was asked by the court whether
'Any offer of any condition or any statement had been made to you to change
your plea?' The defendant answered for himself, 'No, sir.' Pursuant to hearing
on this motion, the court specifically found that petitioner at no time received
any promise or representations concerning the sentence which the court might
impose in the event he pleaded guilty; and that he did knowingly, intelligently
and voluntarily enter his plea of guilty to each count in the indictment.
