Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNITED STATES v. RADER

September 7, 1961

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALLEN G. RADER, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

This is the fourth in a series of attempts by the defendant, Allen G. Rader, to have the court modify or set aside the sentences imposed upon his pleas of guilty to the charges contained in five separate informations bearing the numbers hereinabove set forth. United States v. Nelson et al., D.C.W.D.Ark. 1958, 172 F. Supp. 83; United States v. Nelson, et al., D.C.W.D.Ark. 1959, 172 F. Supp. 86; United States v. Rader, D.C.W.D.Ark. 1960, 185 F. Supp. 224, affirmed, Rader v. United States, 8 Cir., 1961, 288 F.2d 452.

The defendant, Allen G. Rader, with two others was arrested on May 12, 1958, in the Western District of Arkansas upon a Commissioner's warrant charging them in two counts with violating 18 U.S.C. § 500. All of the defendants were represented by Honorable J. Sam Wood, a reputable attorney of the bar of this court and who for 28 years was Circuit Judge of the Twelfth Circuit of the State of Arkansas. On June 16, 1958, the three defendants, with their attorney, appeared before the court, and, after being fully advised of the nature of the charges, waived in open court prosecution by indictment and consented that the charges be prosecuted upon information instead of indictment. On that day the three defendants entered pleas of guilty to Count 1 in the information and Count 2 was continued for further consideration. Immediately following the pleas of guilty, the attorney for the defendants and the defendants themselves stated that there were many charges pending against them in other districts in the United States, and that they were anxious to waive the return of indictment in the various districts so that an information could be filed and the cases transferred to the Western District of Arkansas, Fort Smith Division, under Rule 20, Fed.R.Crim.P. 18 U.S.C. In accordance with the request of the defendants, Criminal Action No. 5481 was transferred from the Western District of Michigan, Southern Division; No. 5482 was transferred from the District of Kansas; No. 5486 was transferred from the Northern District of Oklahoma; No. 5490 was transferred from the Southern District of Iowa, Eastern Division. Following the transfer of the cases, the defendant Rader was again before the court on August 1 and, upon arraignment in the four cases that had been transferred upon his motion, entered pleas of guilty to all counts in the informations filed in the transferred cases.

Also on that date the defendant Rader entered a plea of guilty to Count 2 of the information in No. 5475 which had been continued on June 16 for further consideration.

The defendants were sentenced in the various cases on August 1, 1958. The defendant Rader was sentenced on four counts in No. 5481, two counts in No. 5482, six counts in No. 5486, two counts in No. 5490, and counts 1 and 2 in the instant case, No. 5475.

On August 7, 1958, six days after the defendant had been sentenced, he filed a petition to withdraw pleas of guilty in all of the cases and enter pleas of not guilty. The court denied his petition and filed an opinion in which the court reviewed the various proceedings resulting in the imposition of the sentences. United States v. Nelson, D.C.W.D.Ark. 1958, 172 F. Supp. 83.

The next proceeding filed by Rader, April 10, 1959, was a motion to vacate the sentences upon the allegation that the sentences imposed on certain counts in the various informations were illegal because the offenses charged were merely continuations of the offenses charged in other counts. That motion was disposed of in United States v. Nelson, D.C.W.D.Ark. 1959, 172 F. Supp. 86.

The third proceeding instituted by the defendant Rader was a motion or petition filed under Rule 35, Fed.R.Crim.P., and 28 U.S.C. § 2255, to vacate the sentence imposed on Count 2 in the instant case, No. 5475.

In the petition filed at that time he alleged, inter alia:

    "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 [sic] 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." See page 226 of 185 F. Supp.

In the instant motion or petition styled by the defendant as "Compendum," the defendant contends that the commitment under which he is being held in prison does not conform to the sentence pronounced by the court.

The judgment, omitting the formal parts, entered in No. 5475 is as follows:

    "On this 1st day of August, 1958, came the attorney
  for the government and the defendant appeared in
  person and by Mr. J. Sam Wood, his attorney, and,
    "It Is Adjudged that the defendant is guilty as
  charged and convicted.
    "It Is Adjudged that the defendant is hereby
  committed to the custody of the Attorney General or
  his authorized representative for imprisonment for a
  period of Five (5) Years on count one of the
  information; and Five (5) Years on count two of the
  information to begin at the expiration of the term of
  imprisonment adjudged herein on count one; making a
  total of ten years on the two counts.
    "It Is Ordered that the Clerk deliver a certified
  copy of this judgment and commitment to the United
  States Marshal or other qualified officer and that
  the copy serve as the commitment of the defendant.
                              "/s/ Jno. E. Miller
                          "United States District
                             Judge"

The defendant argues that at the time the sentence was imposed that the court did not mention that the sentence on Count 2 would run consecutively to the sentence on Count 1.

The defendant has been furnished with a complete transcript of what occurred in the court at all times he was before the court and entered his various pleas of guilty and sentence was imposed. The transcript of the proceedings, certified to by the Court Reporter, beginning on page 30, states:

    "Now, in Criminal Action 5475, the Western District
  of Arkansas, containing two counts, one for forgery
  of the money order and the second one for attempting
  to pass it, in which both defendants are charged and
  to which both of them have entered a plea of guilty,
  it is the judgment and sentence of the court that Mr.
  Johnny Arthur Nelson and Mr. Allen G. Rader each be
  delivered to the Attorney General of the United
  States, or his agent, who will confine them in some
  institution of his own choice for a period of five
  years on Count 1. On Count two, it is the judgment
  and sentence of the court that they and each of them
  be remanded to the custody of the Attorney General,
  who will confine them in some institution of his own
  choice for a period of five years.
    "The Court: Mr. Riddle (Deputy Clerk), in drawing
  those commitments, I think, probably they ought to be
  drawn on separate commitments. Five years on each
  count, one and two.

"The Clerk: Consecutive?

"The Court: They are to run consecutively."

Following the pronouncement of the sentence in the instant case, No. 5475, the court proceeded to impose sentences in the other cases that had been transferred, but apparently the defendant is not attacking in this proceeding any ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.