United States v. Francis Peter Crosby, 314 F.2d 654, 2d Cir. (1963)
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Scribd Government DocsUnited States v. Francis Peter Crosby, 314 F.2d 654, 2d Cir. (1963)
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Scribd Government Docs314 F.
2d 654
UNITED STATES of America, Appellee,
v.
Francis Peter CROSBY et al., Appellants.
No. 189, Docket 27811.
United States Court of Appeals Second Circuit.
Argued Jan. 25, 1963.
Decided March 5, 1963.
O. John Rogge, New York City, for appellant Leo B. Mittelman.
Arnold N. Enker, New York City (Vincent L. Broderick, U.S. Atty., for
the Southern District of New York, Sheldon H. Elsen, Asst. U.S. Atty., on
the brief), for the United States.
Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.
FRIENDLY, Circuit Judge.
This is an appeal by Leo B. Mittelman from an order of Judge MacMahon in
the Southern District of New York denying his motion, under F.R.Crim.Proc.
35, to correct an alleged illegality in the sentence on the conviction we affirmed
in United States v. Crosby, 294 F.2d 928 (2 Cir., 1961), cert. denied, Mittelman
v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962). In view of
the painstaking recital of the facts in the cited opinion, there is no need for us to
detail these here.
Mittelman was convicted on two counts, Two and Fifty. Judge MacMahon
sentenced him to the maximum prison term of five years on each, the sentences
to run consecutively; however, the judge suspended the sentence on Count Fifty
and directed that at the end of the Count Two sentence Mittelman should be
placed on probation for five years. He claim is that the two sentences constitute
double punishment for a single offense, a result prohibited by In re Snow, 120
U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 (1887), and many other cases. Since the
objective was to correct 'an illegal sentence, not re re-examine errors occurring
at the trial or other proceedings prior to the imposition of sentence,' Hill v.
United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962), and
since relief under F.R.Crim.Proc. 35, unlike 28 U.S.C. 2255, is not dependent
on a right to immediate release if the claim is established, compare Heflin v.
United States, 358 U.S. 415, 420, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959)
(concurring opinion of five justices), resort to Rule 35 was procedurally proper.
However, Mittelman did not sustain his claim on the merits.
3
Count Two of the indictment contained 21 numbered paragraphs. The first
paragraph charged that Mittelman and others devised a scheme and artifice to
defraud and to obtain money and property by means of false and fraudulent
pretenses, representations, and promises from stockholders and persons whom
they would induce or seek to induce to become stockholders in Texas-Adams
Oil Company. Paragraph 2 incorporated Count One of the indictment, in which
Mittelman was not involved; paragraphs 3-20 recited various acts done in
pursuance of the scheme. Several of these paragraphs referred to use of the
mails, and paragraph 21, which differentiated Count Two from Counts Three
through Thirty-two, averred the mailing to one Ethel Davis Lake of a report to
stockholders dated November 25, 1955, which report was alleged in paragraph
16 to contain false and fraudulent misrepresentations concerning the growth of
Texas-Adams since the new management had taken control on September 27.
At the end of Count Two reference was made to the mail fraud statute, 18
U.S.C. 1341, and the aiding and abetting statute, 18 U.S.C. 2.
With Count Thirty-three the tenor of the indictment charged. Counts Thirtythree through Forty-nine alleged that Mittelman and others1 unlawfully made
use of the mails to sell common stock of Texas-Adams to various persons,
'there not then being in effect with the Securities and Exchange Commission a
registration statement as to such security.' Reference was made in each of these
counts to 15 U.S.C. 77e(a)(1) or (2) and 77x. Count Fifty alleged that
Mittelman conspired with co-defendants and other persons to violate the
registration provisions of the Securities Act, 15 U.S.C. 77e(a)(1) and (2) and
77x, 'in the manner and by the means set forth more fully in paragraphs two (2)
through five (5) of Count One, and three (3) through twenty (20) of Count Two
of this indictment.' Some of the overt acts alleged were essentially the same as
some of those described in Count Two. Reference was made to the conspiracy
statute, 18 U.S.C. 371.
Relying particularly on Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99,
87 L.Ed. 23 (1942), Mittelman contends that Counts Two and Fifty charged a
single agreement to defraud. The reliance is misplaced. The indictment in
Braverman charged, in separate counts, conspiracy to violate seven distinct
sections of the internal revenue laws relating to distilled spirits; however, the
Government conceded, 317 U.S. at 52, 63 S.Ct. at 101, that 'only a single
agreement to commit the offenses alleged was proven,' and the court held that
only a single penalty could be imposed, even though the agreement had several
illegal objectives. Appellant might come within Braverman if Count Two had
charged a conspiracy to violate the mail fraud statute.2 However, Count Two
did not allege an agreement, the gist of the offense of conspiracy, 18 U.S.C.
371, but rather a substantive violation of the mail fraud statute. It is elementary
that, with limited exceptions not here relevant, separate sentences may be
imposed for violating a criminal statute and for conspiring to violate it.
Pinkerton v. United States, 328 U.S. 640, 642-644, 66 S.Ct. 1180, 90 L.Ed.
1489 (1946). Indeed, this may be done even when the sole evidence of
commission of the substantive offense is participation in the conspiracy, which
makes the defendant an aider or abettor of the substantive crime. Pinkerton v.
United States, supra, at 645-648, 66 S.Ct. at 1183-1184. Pinkerton thus bears a
fortiori against appellant, who was convicted of substantive violation of one
statute and conspiracy to violate another.
6
It is of no consequence that the proof of the substantive violation of the mail
fraud statute may have disclosed an agreement to perform the violation in
concert; what is critical for the permissibility of separate sentences for
substantive offenses and for conspiracy is that the former 'do not require more
than one person for their commission.' Pereira v. United States, 347 U.S. 1, 11,
74 S.Ct. 358, 364, 98 L.Ed. 435 (1954). The joinder of the various counts in
one indictment, F.R.Crim.Proc. 8(a), does not make them one for purposes of
punishment. See Hill v. United States, 306 F.2d 245 (9 Cir., 1962). Finally,
appellant is not aided by his citation of Maraker v. United States, 370 U.S. 723,
82 S.Ct. 1573, 8 L.Ed.2d 803 (1962), where defendants who had been acquitted
on a conspiracy charge were freed from subsequent prosecution under
indictments charging the substantive offenses which constituted the overt acts
alleged in the conspiracy case. We are not required to decide whether if
Mittelman had first been indicted and convicted only under Count Two, he
could thereafter be indicted and tried for the conspiracy charged in Count Fifty;
the double jeopardy and due process problems under the Fifth Amendment
raised by that question are not present when the counts are joined in a single
indictment and trial. See United States v. Sabella, 272 F.2d 206, 211-212 (2
Cir., 1959).
Affirmed.
The 'others' included the defendants characterized in our previous opinion as
the 'broker' defendants, but did not include Crosby
2
We say 'might' because, in contrast to the Government's concession in the
Braverman case, the evidence here might have warranted a jury in finding that
Mittelman had participated in two separate conspiracies, perhaps involving
different groups of co-conspirators, with the separate objectives of violating the
mail fraud statute and the registration provisions of the Securities Act. See 317
U.S. at 52, 63 S.Ct. at 101. We are not required to decide this
