HAMLIN, Circuit Judge.
On January 12, 1962, an information was filed in the United States District Court for the District of Hawaii against John Dolack, appellant herein, charging a violation of section 1341, Title 18 United States Code.
This information is set out in the footnote.
In open court, after being carefully advised of his constitutional rights by the United States District Judge, appellant waived the filing of any indictment by the Grand Jury, stated that he did not want a lawyer, that he understood the charge against him, and that he wanted to enter a plea of guilty. The detailed proceedings are set out in the footnote.
On February 5, 1962, the court after receiving the report of the probation of
ficer, sentenced appellant “to the custody of the Attorney General for imprisonment for the maximum period authorized by law, i. e., FIVE (5) YEARS, and for a study as described in 18 U.S.C. § 4208 (c), the results of such study to be furnished [to the] court within three months, whereupon the sentence of im
prisonment [would be] subject to modification in accordance with 18 U.S.C. § 4208(b).”
On May 4, 1962, the court, having received the report of the study prescribed in 18 U.S.C. § 4208(c) but without the appellant being present in court, modified the prior sentence in accordance with 18 U.S.C. § 4208(b) to provide that appellant shall become eligible for parole at such time as the board of parole may determine.
On March 4, 1963, appellant filed a motion to vacate his sentence under 28 U.S.C. § 2255 on the ground,
inter alia,
that he was not present at the time his sentence was modified on May 4, 1962. Counsel was appointed by the court to represent him and a hearing was held on March 14, 1963. The motion was denied one week later.
Thereafter, appellant filed a notice of motion to permit him to file a supplemental affidavit and for reconsideration. The district court permitted the filing of the affidavit and, after reconsidering the matter, reaffirmed its decision.
Appellant then filed an appeal to this court which remanded the case to the district court for resentencing.
On March 9,1964, the district court, in the appellant’s presence, and after giving him an opportunity for allocution, modified his sentence by ordering his commitment to the custody of the Attorney General for imprisonment for two years, eight months; the term running from the original date of the commitment. It was “the intent of [the] court that with credit for good behavior allowable to said defendant, he be released from such custody on or about March 26, 1964.”
Appellant admits that he was conditionally released from custody on March 26, 1964, and that his sentence terminated on or about October 4, 1964.
Apparently the appellant did not remain out of jail very long, because in November, 1965, appellant addressed a letter to the United States District Court indicating that he was again in jail under another federal sentence and conviction.
He contended that the facts did not justify his conviction upon the charge to which he pleaded guilty in the Hawaii District Court in January, 1962. He asked the district court to “please treat this letter as a motion to vacate the conviction and expunge the record of said conviction and to issue a writ of error coram nobis.” The reason for appellant’s desire to have the Hawaii conviction set aside is stated in a subsequent letter as follows:
“The question in point, I believe, is not moot. There are outstanding de-tainers lodged against me from the state of Florida. Florida has an Habitual Criminal Act (Fla. Crim. Proc. 775.09) and I am subject to prosecution under this law.”
In no papers filed from 1962 to November, 1965, has appellant ever even intimated that he was not guilty of the charge to which he pleaded guilty. He now contends that because only one check was mentioned in the information and because this check was given after he had received the services of the hotel, he is not and can not be guilty of violating 18 U.S.C. § 1341. In support of his position appellant cites Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277; and Kann
v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88.
The fact that the information in the instant case mentioned only one check would not prevent proof that the appellant devised a fraudulent scheme and in pursuance thereof, passed a succession of bad checks upon mainland banks relying upon the fact that the use of the mails by his victims would postpone his discovery. The district judge in his decision of December 16, 1965, denying appellant’s petition indicated this possibility in the following statement:
“Petitioner’s modus operandi was to obtain food and lodging from various hotels, and to escape payment therefor by turning over to his victims checks drawn on a closed account in an out-of-state bank.”
We hold that under the circumstances of this case appellant can not prevail. We have here a case where the information filed against appellant sufficiently charges a public offense. Rule 7(c) of the Federal Rules of Criminal Procedure states “[t]he indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” It must satisfy two criteria: (1) the elements of the offense intended to be charged must be so stated to sufficiently apprise the defendant of what he must be prepared to meet and (2) the charge must be sufficiently definite so that if other proceedings are taken against the defendant it will show with accuracy to what extent he may plead a former acquittal or conviction. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240.
In Rivera v. United States,
Free access — add to your briefcase to read the full text and ask questions with AI
HAMLIN, Circuit Judge.
On January 12, 1962, an information was filed in the United States District Court for the District of Hawaii against John Dolack, appellant herein, charging a violation of section 1341, Title 18 United States Code.
This information is set out in the footnote.
In open court, after being carefully advised of his constitutional rights by the United States District Judge, appellant waived the filing of any indictment by the Grand Jury, stated that he did not want a lawyer, that he understood the charge against him, and that he wanted to enter a plea of guilty. The detailed proceedings are set out in the footnote.
On February 5, 1962, the court after receiving the report of the probation of
ficer, sentenced appellant “to the custody of the Attorney General for imprisonment for the maximum period authorized by law, i. e., FIVE (5) YEARS, and for a study as described in 18 U.S.C. § 4208 (c), the results of such study to be furnished [to the] court within three months, whereupon the sentence of im
prisonment [would be] subject to modification in accordance with 18 U.S.C. § 4208(b).”
On May 4, 1962, the court, having received the report of the study prescribed in 18 U.S.C. § 4208(c) but without the appellant being present in court, modified the prior sentence in accordance with 18 U.S.C. § 4208(b) to provide that appellant shall become eligible for parole at such time as the board of parole may determine.
On March 4, 1963, appellant filed a motion to vacate his sentence under 28 U.S.C. § 2255 on the ground,
inter alia,
that he was not present at the time his sentence was modified on May 4, 1962. Counsel was appointed by the court to represent him and a hearing was held on March 14, 1963. The motion was denied one week later.
Thereafter, appellant filed a notice of motion to permit him to file a supplemental affidavit and for reconsideration. The district court permitted the filing of the affidavit and, after reconsidering the matter, reaffirmed its decision.
Appellant then filed an appeal to this court which remanded the case to the district court for resentencing.
On March 9,1964, the district court, in the appellant’s presence, and after giving him an opportunity for allocution, modified his sentence by ordering his commitment to the custody of the Attorney General for imprisonment for two years, eight months; the term running from the original date of the commitment. It was “the intent of [the] court that with credit for good behavior allowable to said defendant, he be released from such custody on or about March 26, 1964.”
Appellant admits that he was conditionally released from custody on March 26, 1964, and that his sentence terminated on or about October 4, 1964.
Apparently the appellant did not remain out of jail very long, because in November, 1965, appellant addressed a letter to the United States District Court indicating that he was again in jail under another federal sentence and conviction.
He contended that the facts did not justify his conviction upon the charge to which he pleaded guilty in the Hawaii District Court in January, 1962. He asked the district court to “please treat this letter as a motion to vacate the conviction and expunge the record of said conviction and to issue a writ of error coram nobis.” The reason for appellant’s desire to have the Hawaii conviction set aside is stated in a subsequent letter as follows:
“The question in point, I believe, is not moot. There are outstanding de-tainers lodged against me from the state of Florida. Florida has an Habitual Criminal Act (Fla. Crim. Proc. 775.09) and I am subject to prosecution under this law.”
In no papers filed from 1962 to November, 1965, has appellant ever even intimated that he was not guilty of the charge to which he pleaded guilty. He now contends that because only one check was mentioned in the information and because this check was given after he had received the services of the hotel, he is not and can not be guilty of violating 18 U.S.C. § 1341. In support of his position appellant cites Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277; and Kann
v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88.
The fact that the information in the instant case mentioned only one check would not prevent proof that the appellant devised a fraudulent scheme and in pursuance thereof, passed a succession of bad checks upon mainland banks relying upon the fact that the use of the mails by his victims would postpone his discovery. The district judge in his decision of December 16, 1965, denying appellant’s petition indicated this possibility in the following statement:
“Petitioner’s modus operandi was to obtain food and lodging from various hotels, and to escape payment therefor by turning over to his victims checks drawn on a closed account in an out-of-state bank.”
We hold that under the circumstances of this case appellant can not prevail. We have here a case where the information filed against appellant sufficiently charges a public offense. Rule 7(c) of the Federal Rules of Criminal Procedure states “[t]he indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” It must satisfy two criteria: (1) the elements of the offense intended to be charged must be so stated to sufficiently apprise the defendant of what he must be prepared to meet and (2) the charge must be sufficiently definite so that if other proceedings are taken against the defendant it will show with accuracy to what extent he may plead a former acquittal or conviction. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240.
In Rivera v. United States, 318 F.2d 606 (9th Cir. 1963) this court stated:
“The indictment alleged the offense substantially in the words of the statute, which sets forth all the essential elements of the crime; * * * the indictment thus alleged an offense, and identified the particular conduct upon which the charge was based to the extent necessary to protect appellant from double jeopardy and to tell him what he must be prepared to meet. This was enough to satisfy constitutional standards. * * * ”
See also, Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1963); Heaton v. United States, 353 F.2d 288 (9th Cir. 1965) cert. denied 384 U.S. 990, 86 S.Ct. 1895, 16 L.Ed.2d 1007. The information that charged appellant complies with the above standards.
To this information the appellant voluntarily entered a plea of guilty. In Thomas v. United States, 290 F.2d 696 (9th Cir. 1961) cert. denied 368 U.S. 964, 82 S.Ct. 446, 7 L.Ed.2d 401, the Court stated:
“When a defendant voluntarily and knowingly pleads guilty at his trial this constitutes a waiver of all non-jurisdictional defenses, including the defenses raised by this motion. * * * The conviction and sentence which follow a plea of guilty are based solely and entirely upon said plea and not upon any evidence which may have been improperly acquired by the prosecuting authorities.”
See also, Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965) cert. denied 384 U.S. 954, 86 S.Ct. 1574, 16 L.Ed.2d 550; and Doran v. Wilson, 369 F.2d 505 (9th Cir. 1966).
The District Court of Hawaii had jurisdiction of the appellant, the information sufficiently charged a federal offense in the language of section 1341, and he voluntarily entered a plea of guilty thereto. We hold that under the circumstances of this case, appellant can not now successfully contend that he has the right to have this plea set aside so that he can attempt to prove he was not guilty of the offense.
Judgment affirmed.