The opinion of the court was delivered by: John E. Miller, Chief Judge.
This is the third in a series of attempts by the defendant,
Allen G. Rader, to have this court modify the sentences
imposed on his plea of guilty to the charges contained in five
separate informations. Rader, along with two others, was
charged in this district with forging postal money orders and
then uttering them. In addition, several other cases pending
against these defendants in other districts were transferred
here under Rule 20, Federal Rules of Criminal Procedure, 18
U.S.C.A. Pleas of guilty were entered to all charges, and
Rader was sentenced to 5 years on count one and 5 years on
count two in Criminal Case No. 5475, the sentences to run
consecutively. Sentences in the cases transferred here under
Rule 20 were made to run concurrently with the sentences in
case No. 5475. See United States v. Nelson, D.C. 1958,
172 F. Supp. 83, and D.C. 1959, 172 F. Supp. 86 for a detailed
account of the proceedings.
A short time after the sentences were imposed Rader
attempted to withdraw his plea of guilty and enter a plea of
not guilty to the charges. This motion was overruled. See
United States v. Nelson, 172 F. Supp. 83.
Several months later Rader filed a motion to vacate the
sentences alleging that the sentences imposed were illegal
because the offenses charged were merely a continuation of the
offenses charged in other counts. This motion to vacate was
likewise denied. See United States v. Nelson, 172 F. Supp. 86.
Rader has now filed a motion to vacate an illegal sentence
under Rule 35, Fed.R.Crim.P. In this motion he attacks only
his conviction and sentence in count two of Criminal Case No.
5475. This was a two-count information growing out of
defendants' activities in this district. Count one was the
forgery count and count two was the passing and uttering
count. As heretofore mentioned, Rader was sentenced to 5 years
on each of the two counts, the sentences to run consecutively.
Rader now contends that count two of case 5475 was erroneous,
fatally defective, and void. His contentions can best be
summarized by quoting from his petition. At pages 3 and 4 he
"It is Petitioners contention that Count two of
case 5475 is erroneous and fatally defective for
as can be seen by the Court record. Count two
never occurred. The United States Postal Money
Order No. 4-22,271,605 was not passed as stated by
the first words DID PASS, utter and publish said
money order. It was never signed on the payee line
making it a legal offer for money nor was any money
received for said money order therefore Count two,
is erroneous and the judgement void for lack of
jurisdiction to sentence Petitioner for a crime not
committed. It is Petitioners contention that the
Court was in error where after count two, of case
5475 was objected to numerous times as can be seen
by minutes of trial no action was taken by the
Court to correct the faulty Bill of Information.
Petitioner being unlearned in law and under a great
mental strain due to the aforementioned
circumstances could only depend on the integrity of
his paid counsel and the Court. On August 1, 1958,
the Court ask for a plea again to count two of case
5475, Petitioner had been advised by his counsel
that since there was cases transferred under rule
20, and Miss Hendricks case was yet to be heard to
enter a guilty plea to all charges and do nothing
to inconvienace the Court. Therefore on August 1,
1958 Petitioner entered a guilty plea to Count two
of case 5475. 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 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
In support of his contention the defendant relies on the
following remarks made in open court on June 16, 1958, between
the court, Mr. Robert Johnson, Assistant U.S. Attorney, and
Mr. J. Sam Wood, attorney for Mr. Rader:
"The Court: Count Two is, that you, with intent
to defraud passed that forged money order, as
above described, with the intention of defrauding
United States. Now do you understand that charge?
"Mr. Wood: Mr. Rader tells me that he never
passed it. Of course, I think he might be
mistaken as to the facts concerning that.
"The Court: It is not alleged here to whom it
was offered for payment. Who was the person to
whom it was offered for payment?
"Mr. Johnson: I believe it was a teller at one
of the banks here, Your Honor. I don't remember
exactly which one. It was offered for payment and
"The Court: The court is going to accept your
pleas of guilty to Count One, and I believe, if
there is any question about Count Two, I will
pass that for the time being.
"Mr. Johnson: All right, sir.
"The Court: I want to examine the statute. If
they presented it for payment and it wasn't paid,
I want to look at that statute.
"One of the Defendants: We didn't get the money
"Mr. Johnson: They did not get the money for
it. There is no question about that."
On August 1, 1958, defendant Rader entered a plea of guilty
to Count 2, of Case 5475. The transcript reflects this event
with the following statements:
"The Court: * * * Now, the second count in the
indictment, where there was no plea in it, was
"That on or about May 10, 1958, at Fort Smith, in
the Western District of Arkansas, Johnny Arthur
Nelson, Allen G. Rader and Nancy Hendricks, with
intent to defraud, did pass, utter and publish as
true the forged ...