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
"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 has been
convicted upon his plea of guilty of the offenses of
Count One: on or about May 10, 1958, at or near Fort
Smith, Arkansas, with intent to defraud, he did
falsely make, forge and counterfeit U.S. Postal Money
Order Number 422,271,605;
and Count Two: on or about said date and place, with
intent to defraud, did pass, utter and publish said
money order as true knowing same to have been forged,
as charged in the two counts of the information, and
the court having asked the defendant whether he has
anything to say why judgment should not be
pronounced, and no sufficient cause to the contrary
being shown or appearing to the Court, and defendant
being given an opportunity to make a statement in
mitigation of punishment
"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
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 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 ...