Fred Bridges v. United States

259 F.2d 611

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 13, 1958
• Docket: 15493_1
• Status: Published

Opinions

BONE, Circuit Judge.

Appellant Bridges was named as one of two defendants in a five count indictment (criminal cause No. 33917 in the lower court). The first count in this indictment charged Bridges with a violation of the Harrison Narcotic Act. The second count charged him with a violation of the Jones-Miller Act. These two alleged violations occurred at the same time and as parts of one so-called “transaction” on January 7, 1954.¹

In the fifth count, Bridges and one Nayland Jackson were accused of conspiring together to violate certain sections of Titles 21 and 26 of the United States Code.²

In the third and fourth counts of the indictment, Jackson was accused of violating certain provisions of the Harrison Narcotic Act and the Jones-Miller Act.

On May 26, 1954, Criminal Cause No. 83917 came on regularly for trial before Judge Harris of the lower court at which time counsel for Bridges stated in open court (with Bridges present) that so far as indictment number 33917 was concerned, he desired to withdraw Bridges’ plea of “not guilty” theretofore entered, this to permit Bridges to present “a new and different plea as to the first two counts” of this indictment. Counsel for the United States stated that his client had no objection to the court accepting a new plea from Bridges. Following this statement the court formally announced that it would accept such a new plea from Bridges on the first two counts. (As we shall later note, Bridges was, at this time, also named as a defendant in another indictment.)

Immediately after this exchange in open court a colloquy ensued which underlies and gives character to much of Bridges’ arguments on this appeal. We set forth in the margin the pertinent parts of this colloquy between the court, counsel and Bridges.³

Thereafter and on June 16, 1954, Bridges was brought before the lower court for sentence. At that time his counsel sought to defer imposition of sentence, stating that a controversy had arisen as to whether Bridges was an “addict.” The court then commented on the report of a Mr. Gentry, the District Supervisor, in which Gentry described the long “criminal record” of Bridges as it appeared in the files of the F.B.I. The court referred to the fact that this record stated, among other matters, that until his arrest, Bridges “was a persistent violator of the narcotic laws and one of the major distributors of heroin in the Oakland, California area.”

The court then stated to Bridges that he had “heretofore entered a plea of guilty to the first and second counts of a five' count indictment,” (No. 339Í7) and asked Bridges if he was “ready for sentence.” To this question, Bridges answered “yes.” The court then proceeded to impose a sentence of 5 years in a Federal penitentiary under count one, and a fine of $500. With respect to the second eount, the court imposed a sentence of five years in a Federal penitentiary and á fine of $500. The court further announced that the five year sentence under the second count was “to run consecutively and not concurrently, that is, after the expiration of it (the first count). The total, fine will be $500.” (Emphasis is ours.)

Thereafter, and following a colloquy concerning the entirely different indictment we have mentioned and in which Bridges and Jackson had been named as ■defendants, the court announced that this particular and other indictment was dismissed by consent of government counsel. The record indicates that on this occasion (June 16, 1954) when these two consecutive sentences totalling 10 years were imposed, neither Bridges nor his retained counsel made any sort of statement to the court protesting or questioning the imposition of such consecutive sentences, and no appeal was taken therefrom.

Subsequent Proceedings

On March 14, 1955, the lower court caused to be entered a “Corrected Judgment” in Criminal Cause No. 33917. This judgment formally recited that Bridges “had been heretofore convicted ■upon his plea of guilty” under Counts 1 and 2 of the indictment in this cause. In this “corrected judgment” the court adjudged that Bridges be committed to the custody of the Attorney General, etc. for imprisonment for a period of five years under Count One of the indictment, and pay a fine of $500; and imprisonment for a period of five years under Count Two of the indictment. The judgment also recited that the court therein “corrected its judgment of June 16, 1954”; that the imprisonment imposed on Count Two run from and after the expiration of the term of imprisonment imposed on Count One of the indictment; that the “total imprisonment” was to be 10 years; that the fines imposed on Counts 1 and 2 “run concurrently.” The court also recommended commitment to a Federal penitentiary. No appeal was taken from the entry of this “corrected judgment,” and the case went coasting along in this posture.

Later, and on May 17, 1955, Bridges made the first affirmative move in this case. In this move, and by motion, he assailed the above noted “Corrected Judgment.” On that date he filed a motion (under Section 2255 of Title 28 U.S.C.A.) to vacate this particular judgment. On June 15, 1955, District Judge Harris ordered that this motion be denied. Bridges did not appeal from this order.

On January 14, 1957, almost three years after he was first sentenced, the motion now before us (also under Section 2255) was filed.

On January 30, 1957, the ease came on regularly before District Judge Harris for hearing on Bridges’ latest and second motion. Bridges was not present, and his counsel (who had been notified of the date of the hearing) was not present. The court ordered the hearing continued until February 13, 1957, and directed in the order that counsel for Bridges be so notified, and supplied with copies of the transcript of record of proceedings had on January 30, 1957.

On February 13, 1957, the said motion again came on regularly for hearing before Judge Harris pursuant to the order just above noted. Bridges was not present (he being in prison) but his counsel, who at all times here pertinent had represented him in the cause, was present. After hearing from counsel for both sides the court ordered that this second motion of Bridges under Section 2255 to vacate and set aside that portion of the sentence imposed on Count 2 of the indictment (No. 33917) be denied. The instant appeal is from this order which bears date of February 13, 1957.⁴

On the instant appeal, appellant (who prepared his own brief) failed to comply with' our Court Rule 18(d), 28 U.S.C. in that his brief does not set forth a formal specification of errors upon which he relies. However, from arguments in his brief, he appears to rely in the main upon the claim that his attorney had advised him that the Government would accept a plea of guilty on one count, and he argues that this was the sort of plea he entered on May 26, 1954. He relies on the transcript of record (apparently what is set out in footnote 3) to substantiate this claim. So far as we are able to determine from his brief, the claimed error or errors on which he relies (and which, for the purpose of this appeal, we accept as his specification of errors) appear to be fairly and adequately presented in his so-called “summary” which we note in the margin.⁵

Our examination of the record leads us to agree with appellee that the controlling questions presented for decision may be stated as follows:

“1. Was the Court required to entertain a second motion for relief under Section 2255?

“2. May there be consecutive sentences for the concealment of heroin and the sale of that heroin when the first sentence is imposed under the Jones-Miller Act and the second sentence is imposed under the Harrison Narcotics Act?

“3. Was appellant deprived of due process of law in his plea of guilty and his sentence thereupon ?”

As to the “errors” here relied on, appellant contends that the lower court was without jurisdiction to impose the second and consecutive sentence on Count Two; that “as a matter of law the sentence under Count Two should have been made to run concurrently with the sentence imposed under Count One.” This argument makes clear that appellant is not challenging the jurisdiction of the court to impose the two sentences so long as they were ordered to run concurrently thereby imposing but one punishment under both charges. This view rests on the specific contention that “in order that separate offenses charged in an indictment may carry different punishments, they must rest on separate and distinct criminal acts and therefore, if they were committed at the same time and were part of the same criminal continuous act and inspired by the same criminal intent which is an essential element of each offense, they are susceptible to but one single punishment.”

Based on the foregoing argument, appellant asserts that imposition of the second (consecutive) sentence has caused him to suffer double punishment because of an inference that the heroin referred to in the first count was also involved in the second count. From this fact he argues that since proof of the commission of the offense charged in Count One involved use of the same evidence relied upon to sustain the offense charged in Count Two, the claimed use of this evidence shows that he had committed but one offense and therefore was subject to only one penalty. This is a far from uncommon contention, and appellant cites two early cases as authority to sustain it, Munson v. McClaughry, 8 Cir., 1912, 198 F. 72, 42 L.R.A.,N.S., 302, and Stevens v. McClaughry, 8 Cir., 1913, 207 F. 18, 51 L.R.A.,N.S., 390.

The above noted argument advanced by appellant is utterly void of merit. When he waived trial on the merits by entering a plea of guilty on both counts, he thereby deliberately (and as a matter of law) relieved the Government of the necessity of introducing proof of any sort to fully sustain the specific allegations set forth in each of the first two counts of the instant indictment. His plea of guilty constituted an admission of guilt and in itself furnished all necessary “proof,” and we so hold. As a matter of law his plea of guilty on the two counts here involved was, in itself, a conviction under each of these counts. See Berg v. United States, 9 Cir., 176 F.2d 122, cer-tiorari denied 338 U.S. 876, 70 S.Ct. 137, 94 L.Ed. 537. And it should be added that there is not a scintilla of evidence in the record which would support even a slight inference that appellant’s plea might have been induced or procured by trick, artifice or coercion. The cases are too numerous to justify burdening this opinion with citations which also point up the fact that different counts in an indictment which separately charge violations of the Harrison Act and the Jones-Miller Act, may subject a defendant to punishment for violations of both Acts.

Furthermore, if appellant had elected to go to trial and put the Government on its proof, he would then have faced the proof he talks about in connection with an “inference.” He may not now rely on an inference or inferences which might or could have arisen from proof produced at trial since appellant had eliminated the necessity for a trial, and this fact was obvious to him. And it should be pointed out that at no stage of the proceedings here pertinent has appellant claimed that the allegations here in question failed in any regard to charge the crimes averred in each of these two counts. His only complaint is that imposition of the consecutive sentences under his plea on these-two counts was beyond the jurisdiction of the court. We disagree with this contention.

It is also our view that the two counts in the indictment sufficiently charged the commission of two separate offenses, each being made punishable by Congress under the different acts here involved. The trial judge was well aware of this fact and of the long exercised power and purpose of Congress to provide legislative aid in suppressing the narcotics traffic by ordaining that separate sentences might be imposed for separate offenses named in the separate Acts here involved, even though such violations may have arisen out of what is frequently referred to as one incident or “transaction.” We do not doubt that the sentences here imposed were lawful.

Under the circumstances of this case, the question whether consecutive sentences should be imposed was a matter wholly within the competence and discretion of the lower court. Appellant is here challenging that authority.

From all that transpired in this case, it is obvious that Judge Harris was not at all impressed or persuaded by counsel’s interjected comment about “one transaction” or appellant’s comment about “one count.” Nor do we doubt that appellant was well aware that he was voluntarily pleading guilty on the first two counts. His arguments on this appeal become an exercise in semantics and fail to obscure or discount the significance of the colloquy at the time of the imposition of the sentences. The record makes clear that at no time has Judge Harris entertained doubt as to appellant’s full understanding of the exact nature and legal scope of his plea on these two counts. The orders of the court in this case so indicate.

Bridges was not a frightened juvenile-overwhelmed and bewildered by the solemnity of a court proceeding. He was a grown man with an unsavory criminal record which he did not challenge when discussed in court. He stood in court accompanied by capable counsel of his choice when he entered his formal plea, and neither of these men voiced objection to the imposition of the separate and consecutive sentences at the time they were announced from the bench, nor did they later object when the "corrected judgment” was entered.⁶

■ On the whole record we must and do conclude that the order of the lower court was jtast and proper and should be affirmed. It is so ordered.

1 . The first count reads as follows:

“First Count: (Harrison Narcotic Act, 26 U.S.G. 2553 and 2557)

The Grand Jury charges: That Fred Bridges,

one of the defendants herein, on or about the 7th day of January, 1954, in the City of' Oakland, County of Alameda, State of California, within said Division and District, unlawfully did sell, dispense and distribute, not in or from the original stamped package a certain quantity of a narcotic drug, to-wit, approximately 12 grains of heroin.”

The second count reads as follows:

“Second Count: (Jones-Miller Act, 21 U.S.O. 174)

The Grand Jury further charges: That Fred Bridges,

one of the defendants herein, at the time and place mentioned in the first count of this indictment, within said Division and District, fraudulently and knowingly did conceal and facilitate the concealment of a certain quantity of a narcotic drug, to-wit, approximately 12 grains of heroin, and the said heroin had been imported into the United States of America contrary to law as the defendant Fred Bridges then and there knew.”

Courts are familiar with the fact that lawyers are quite prone to refer to an indictment which charges in different counts the commission of offenses which separately and simultaneously violate doth the Harrison Act and the Jones-Miller Act, as an indictment charging offenses flowing from, and the product of, one so-called “transaction.”

2 . The fifth count in the indictment reads as follows:

“Fifth Count: (Conspiracy, 18 U.S.C. 371)

The Grand Jury further charges: That Fred Bridges and Nayland Jackson,

defendants herein, at a time and place to said Grand Jury unknown, did conspire together to sell, dispense and distribute, not in or from the original stamped packages, quantities of a narcotic drug, to-wit, heroin, in violation of Sections 2553 and 2557 of Title 26 United States Code, and to conceal and facilitate the concealment and transportation of quantities of a narcotic drug, to-wit, heroin, which heroin had been imported into the United States of America contrary to law as the defendants, and each of them, then and there well knew, in violation of Section 174 of Title 21 United States Code; that thereafter and during the existence of said conspiracy one or more of the defendants hereinafter mentioned by name, at the time and place hereinafter set forth, did the following acts in fur-theranee thereof and to effect the objects of the conspiracy aforesaid:

Overt Acts

1. On January 7, 1954 the defendant Fred Bridges had a conversation with Margie Gray in the vicinity of 7th and Wood Street, Oakland, California.

2. On January 7, 1954 the defendant Nayland Jackson handed a package to Margie Gray in the vicinity of 8th and Adeline Streets, Oakland, California.”

3 . “The Clerk: In case 33817, Fred Bridges, do yon withdraw your former plea of not guilty to counts one, two and three of this indictment? (3-a)

“Defendant Bridges: Yes.

“The Court: The plea is ‘yes’, guilty?

“Mr. Sullivan (counsel for Bridges) As to his—

“The Clerk: Withdrawal. What is your plea, Fred Bridges, to count one and ttoo of this indictment, guilty or not guilty?

“Defendant Bridges: Guilty.

“Mr. Sullivan: Same transaction. (3-b)

“The Court: The other counts may be dismissed. You have had the advice of your attorney, Mr. Sullivan, in this matter, have you?

“Mr. Sullivan: Yes, your Honor. Talked to him.

“Defendant Bridges: Yes, Judge, your Honor, I understand I am pleading to one count.

“Mr. Sullivan: One transaction. Well, it is one transaction Mr. Bridges. It is simply as I told you before, two different statutes, that’s all. (3-b)

“The Court: There isn’t any question in his mind?

“Mr. Sullivan: No, not at all, your Honor.”

(The emphasis is ours.)

From the foregoing, it is clear that if Bridges actually thought that he was pleading guilty to only one count, he failed to tell the court upon lohich one of the two counts his plea of guilty was entered.

Note 3-a. It is obvious from the record that the figures 33817 hero appearing in the typed transcript are a typing error since the proceeding in court was in case 83917. Another and separate indictment under another number was apparently pending in which indictment Bridges was also named as a defendant. This indictment was dismissed by the Court.

Note 3-b. This was obviously a reference by counsel to the fact that counts one and two of the indictment in Criminal No. 33917 charged offenses which while coming within the terms of both the Harrison Act and the Jones-Miller Act, were part of the “transaction of January 7, 1954 referred to in these two counts in No. 33917.

4 . At the hearing held on February 13, 1957, a colloquy ensued in open court •which sheds additional light on the issue here presented. Pertinent parts of that colloquy are here set forth. The Mr. Sullivan here mentioned was, at all times here pertinent, counsel for appellant. (Emphasis is supplied.)

“The Court: Mr. Sullivan, in order that you may understand the events which occurred during your absence, or at least while you were not in court, I felt and I presently feel that when Mr. Bridges came before me — There were successive continuances, as I recall.

“Mr. Sullivan: That’s right.

“The Court: And when you represented him, he was fully advised concerning his rights. I knew that in your representation he was receiving, certainly, adequate representation; and when his pleas were entered to the several counts, I then felt and now reiterate that, at least so far as I was concerned, the man knew the nature of the plea or pleas, the consequences and the ultimate outcome.

“Mr. Sullivan: In the first place, Bridges was the one who made the decision that he wanted to plead, if a plea was to be entered. At that time T was aware of the fact that this indictment to which he pleaded — and it has just been directed to my attention there was another indictment, also. The other defendant, Jackson, was in the hospital.

“The Court: That is right. He had a very severe stomach ailment.

“Mr. Sullivan: We put it over in the hope that he would ultimately appear. But at that time I was aware of the fact that the United States Attorney was only accepting plea to both counts, and before Bridges ever pleaded, I told Bridges he was pleading guilty to a single transaction, that is, involving the same narcotics. That is, the sale, and so forth. The second count, the legal count was that of possession of the same narcotics. But at no time was he made to believe it was a single count. The word ‘transaction’ was used, I admit, because in the first count he sold and delivered a certain narcotics and in the second [count] he possessed it. I can see what he is driving at. But I assure you on the way over here I explained to Bridges two counts were involved even though they resented a single transaction. I don’t believe he misunderstood, but, of course, —I might say, I am satisfied whoever drew this [Section 2255] petition is maybe a better lawyer than I am.

“Mr. Foster: (Government Counsel) I would only like to state for the record that the indictment that was dismissed, that is No. 33918, in which Mr. Bridges was charged with one Joseph W. Jackson, contained seven counts in which Mr. Bridges was named in each count of the indictment. In addition to that, there was another count in the indictment to which he [Bridges] pled. There were three counts in which he was named in that indictment, so there were actually eight counts of the indictment dismissed by Your Honor after the plea of guilty.

“The Court: I dismissed the conspiracy count in Indictment No.........

“Mr. Sullivan: (Interposing) 33917.

“The Court: I dismissed the companion indictment, isn’t that right?

“Mr. Foster: That is correct. So if you add the amount of sentence that could have been given on the eight counts, and the maximum sentence at that time was five years, the defendant could have gotten a total of 50 years.

“The Court: I was impressed at the time of sentence by the report submitted by Mr. John Sprague:

“ ‘The defendant’s most recent arrest wherein he continued to traffic heavily in narcoties while on bond following a previous narcotics arrest aggravates an already gravely serious situation. There exists a lengthy prior criminal record, a poor employment record, and the trafficked quantities of heroin were large. A detention period other than minimal seems appropriate.’

I therefore, in the light of what appeared' reasonable and just, imposed a sentence of five years on each count, the sentences to run consecutively.

“Mr. Sullivan: Your Honor, at the time I felt that Bridges was not a stupid colored man, in any event, and I am satisfied that Bridges would be the type of man who would be bound to know what was going on around him, and I felt at the time we certainly weren’t taking the worst when we got rid of as many counts [eight] as we did. Your Honor knows as well as I do the juries at that time were convicting these men right along.

“The Court: And yon know I have been rather severe in some of these cases.

“Mr. Sullivan: And you always stated, and I know it was in his [Bridges] presence, you were going to give a considerable sentence.

“The Court: I feel that the man was fully advised, and I desired your presence here so that hereafter, if the matter is reviewed, Í should lilce the record to refleet the foot that not only was he represented during the course of the criminal proceedings heretofore, but even now, by competent and adequate counsel. The motion is accordingly denied.”

5 . “This case may be briefly summarized by stating that the appellant upon the advice by counsel and to the appellant’s best judgment did change the plea from not guilty to a plea of guilty with the understanding that the plea, was being made to one count. It was then thought by the appellant that since it was the appellant’s first offense, it was a possibility of the court imposing a minimum sentence of two years. However, the court accepted a plea of guilty and then imposed a maximum five year penalty under count one of the indictment, and further aggravated the matter by exceeding its statutory jurisdiction and imposed a second five year sentence to run consecutive to the first five year sentence imposed. The court was without jurisdiction to impose the second sentence, when said sentence was ordered to run consecutive to the first sentence. The appellant will in this brief conclusively show and prove this point.”

6 . The significance of what occurred when the consecutive sentences were imposed is not to be overlooked. Appellant’s plea ■of guilty was entered at a time when (as indicated by the record) he was materially benefiting himself by securing the dismissal, not only of another count in the instant indictment, but also the dismissal ■of another and separate indictment in which he was named as a defendant.

It is of more than passing interest that nearly three years elapsed in the lower court before appellant got around to urging that the court lacked jurisdiction to ■ impose the second, and consecutive, sentence. From aught the record shows he was quite content during this interim to enter upon service of these sentences without a protest to the court from him and his counsel. Doubtless the fact that he thus escaped the hazards of a trial on another indictment by his plea in cause 33917, played an imporant part in his delay in telling the court that it “misunderstood” the “nature” of hia plea in 33917. Courts bave emphasized the fact that the moving party on a motion under Section 2255 undertakes a heavy burden to overcome the regularity of the conviction, and this is especially true when the attack comes after a long delay.