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July 6, 1960


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 states:

    "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
  years imprisonment."

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
  was refused.
    "The Court: Do you desire to amend that Count
  Two? It may be covered by the statute. First, let
  us take up Count One, the count charging

  the forgery. Now, you understand that do you, all
  of you?
    "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
  for it.
    "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 ...

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