Petition for a Writ of Certiorari — Bowker v. Hunter

INDEX.

Page

Petition for a writ of certiorari to th. United States

Circuit Court of Appeals for the Tenth Circuit... 1

Opinions below. ..........ccccccccccccccncccvecenes 1

JOPIOEAATIOMRL GABROTRORE. . 0. os cccccccccescesencecss 1

Questions promemted ........ccccccccccccsesee scene 3

Statement of matter involved..................008: 4

Reasons for granting the writ and authorities in

MOUS TORO | x onc 5s sc ceccn ca nccsdetesncnses's 7

CITATIONS.

Gs O.. Tee, BA He BE TB, os cass sncencccccess 10

Blockburger v. United States, 284 U. S. 299, 304, 52

Se Se Oe Bk. MI MI nak Sacer vnsescianecdis 9

Bowen v. Johnston, 306 U. S. 19, 24, 59 S. Ct. 442,

i Tn Mth. cekeabkaeeesenenanaschaceeeses .

Bowker v. Hunter, 158 F. 2d. 854................. 6

Bozza v. United States, (Feb. 17, 1947), 328 U.S. ..,

a ee SE cei bowen aba nckieeenasd ss boene dncne 10

Caballero v. Hudspeth, 10 Cir., 114 F. 2d 545...... 10

Cleveland v. United States, 328 U. S. .., 91 L. Ed. 1,

ee DU BRE ae rere Sees ee eee 7

Ebeling v. Morgan, 237 U. S. 625, 59 L. Ed. 1151,

TS aR aR Sasi IE Se Area: 9, 10

Ellis v. United States, 8 Cir., 188 F. 2d 612....... 7

Escoe v. Zerbst, 295 U. S. 490, 79 L. Ed. 1566, 55

SS Re ee ee re ee ere 11

Ex parte Lange, 85 U. S. 163, 21 L. Ed. 872...... oa

Ex parte Nielson, 131 U. S. 176, 185, 9 S. Ct. 672,

eet etka ea eakenkélasee we

PARDO hBELARERARDREROAABREADK ODEs 4664064 OKA EO

a

CITATIONS—(Continued).

Page

Lapage v. United States, 146 F. 2d 536, 156 A. L.

ee A eee eee Te ree ore r eter 9

Malaga v. United States, 57 F. 2d 822............ . 8

Miller v. United States, 2 Cir., 147 F. 2d 372...... 7

Miller v. United States, 147 F. ee 10

Mortensen v. United States, 322 U. S. 369, 88 L. Ed.

Se rE I os Ad aewsna ciceaceusades essa 7

Re Bradley, 318 U. S. 50, 63 S. Ct. 470, 87 L. Ed. 608 7

Roark v. United States, 8 Cir., 17 F. 2d 570, 51 A.

ef SO FE PTT eee e eee 8

Roberts v. United States, 320 U. S. 264, 64 S. Ct. 113,

eh Se bees boUh ke can! pene heen eee kee 7

Roberts v. United States, 320 U. S. 264, 64 S. Ct.

es ee RS hen ns ekohe 65550 oe nswcksnsss 11

Robinson v. United States, 10 Cir., 143 F. 2d 276... 7

Short v. United States, 98 F. 2d 614, 112 A. L. R.

SI Te aie kms Winds iene eascsnnaseseesess 10

Sprague v. Aderholt, 45 F. 2d 790................. 10

Stoneberg v. Morgan, 246 F. 98, 99............... 10

Suslak v. United States, 213 F. 913................ 8

Tobias v. United States, 2 F. 2d 361............... 8

Trant v. United States, 90 F. 2d 718............... 11

United States v. Beach, 324 U. S. 193, 89 L. Ed. 865 7

eee Fo. See Co errr rere 10

United States v. Kenofskey, 243 U. S. 440, 37 S. Ct.

i GE i SE I oi as . Sabeenncewicedastnetens i) |

Waley v. Johnston, 316 U. S. 101, 62 S. Ct. 964, 86

es Carel e ls rece awake cake meds oA 2

Walker v. Johnston, 312 U. S. 275, 61 S. Ct. 574, 85

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1946.

No.-—--—

Berr CHARLES BOWKER, PETITIONER,

v.

Water A. Hunter, Warpen or THE Unirer States

PENITENTIARY, LEAVENWORTH, Kansas.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS FOR

THE TENTH CIRCUIT.

Petitioner, Bert Charles Bowker, respectfully petitions

the Honorable the Supreme Court of the United States

for a writ of certiorari directed to the United States

Cireuit Court of Appeals for the Tenth Circuit to re-

view the Judgment of said Court affirming the judg-

ment of the District Court of the United States for the

District of Kansas.

OPINIONS BELOW.

Opinion of the District Court (R. 43-48). Opinion of

the Circuit Court of Appeals (R. 51-53) 158 F. 2d 854.

JURISDICTIONAL STATEMENT.

Decision of the Tenth Circuit Court of Appeals, Janu-

ary 15, 1947, 158 F. 2d 854; April 14, 1947, order by Mr.

Justice Rutledge extending time to file petition for certio-

rari to May 16, 1947.

nap

2

The Court has jurisdiction under Section 240 of the

Judicial Code, Title 18, U. S. Code 347; and Waley v.

Johnston, 316 U. S. 101, 62 S. Ct. 964, 86 L. Ed. 1302;

Walker v. Johnston, 312 U. S. 275, 61 S. Ct. 574, 85 L.

Ed. 830. .

Petitioner is held by a void judgment and sentence

and thereby deprived of liberty without due process and

in violation of the Fifth Amendment to the Constitution.

Neither this court nor any of the lower courts have

heretofore held that separate counts under Section 2 of

the Mann Act, each referring to the same date, same

woman, same transportation by automobile, same points

of origin and destination, states more than a single of-

fense.

The record presents a question of statutory construc-

tion pertaining to Section 2 of the Mann Act, Title 18,

U. S. Code 398. The question is limited to said action.

Public policy in administration and enforcement of

Federal Criminal Law is involved.

Decision in the present case conflicts with the decis-

ions of several circuits that transportation is the gist of

the offense defined. ;

Does the Federal Probation Law, Title 18, U. S. Code

724, for a single offense authorize probation following a

term of imprisonment, is also involved.

The trial court had power to free petitioner from his )

unlawful imprisonment and its denial of power, approved

by Circuit Court although not specifically decided, is in

conflict with decision of this Court.

3

THE QUESTIONS PRESENTED.

Unlawful imprisonment resulting from sentence im-

posed after expiation for the single offense charged.

Relief by habeas corpus.

An indictment in five counts drawn under Section 2

of the Mann Act, 18 U. S. Code 398, and limited to said

section by reason of charging transportation by automo-

bile, all of said counts referring to the same date, same

woman, same means of transportation, same points of

origin and destination, states a single offense.

Where a single offense is stated as set out above, a

Federal District Court cannot impose a sentence to a term

of imprisonment followed by probation. The Probation

Law, Title 18, U. S. Code 724, does not permit it. And

after service of the imprisonment, court exceeded its

jurisdiction when it imposed a further term of imprison-

ment.

The further term of imprisonment under the circum-

stances given above exceeded jurisdiction of the court,

violated the constitutional rights of the accused and was

void. Habeas corpus was available to question the legal-

ity of the imprisonment.

A prisoner held under two commitments, one of which

is based upon a judgment invalid or void, who has

served in full the imprisonment fixed in the valid com-

mitment, is entitled to be discharged from custody by

habeas corpus.

Re _

4

STATEMENT OF MATTER INVOLVED.

Petitioner was charged by indictment filed March 6,

1940, (R. 14-18), in the United States District Court for

the Western District of Louisiana, Shreveport Division,

with violation of one section of the Mann Act, Title 18,

U. S. Code, Section 398. Indictment contained five counts,

all referring to same date, same woman transported,

same means of transportation, and described the same

transportation.

COUNT 1, that on or about the 9th day of February,

1940, in the Parish of Caddo, State of Louisiana, this

petitioner did ‘‘transport and cause to be transported in

inter-state commerce from Billings in the state of Mon-

tana via Leadville, Colorado, to Shreveport, in the Par-

ish of Caddo, State of Louisiana, via an automobile run-

ning over the public highways of the United States, a

woman, namely Mrs. Bert Charles Bowker’’ for the pur-

pose of prostitution, etc. ;

COUNT 2, that on or about the 9th day of February,

1940, in the Parish of ‘Caddo, State of Louisiana, this

petitioner did procure and obtain a form of transporta-

tion, namely, an automobile whereby the said woman was

transported.

COUNT 3, that on or about the 9th day of February,

1940, in the Parish of Caddo, State of Louisiana, this

petitioner did transport and cause to be transported, and

aid and assist in obtaining transportation for and in

transporting via automobile the said woman.

COUNT 4, that on or about the 9th day of February,

1940, in the parish of Caddo, State of Louisiana, this

7

5

petitioner did aid and assist in obtaining transportation

for and in transporting via an automobile, the said

woman.

COUNT 5, that on or abont the 9th day of February,

1940, in the Parish of Caddo, State of Louisiana, this

petitioner did transport and cause to be transported and

aid and assist in obtaining transportation for and in

transporting via automobile the said woman.

June 21, 1940, petitioner was tried before a jury and

found guilty as charged. On Count 1, sentenced to serve

eighteen months. On remaining counts it was ordered

that imposition of sentence be suspended and this peti-

tioner placed on active probation as of that date (R. 19).

Petitioner served said eighteen months sentence. In

May, 1944, the probation officer at Shreveport petitioned

the Court to require this petitioner to show cause why

his probation should not be revoked for failure to make

reports to the probation officer (R. 27), and on Decem-

ber 6, 1944, probation was revoked and sentence imposed

of three years on the remaining counts of the indictment

(R. 29). Petitioner escaped from jail at Shreveport and

was indicted under the Federal Escape Act (R. 38).

Plea of guilty was entered January 4, 1945, and sen-

tence was imposed of one year and one day consecu-

tively to the three-year sentence (A. 39, 40). Petitioner

was duly committed to the United States Penitentiary,

Leavenworth, Kansas (R. 42).

Petitioner filed in the United States District Court

for the District of Kansas a petition for a writ of

habeas corpus (R. 5-8) setting up that the five counts

—

charged a single offense; that each count refers to same

date, same woman, same points of origin and destina-

tion, same means of transportation, namely, an automo-

bile. Further, that the law does not authorize for a

single offense a term of imprisonment followed by pro-

bation; that the three-year sentence was imposed after

expiation for the offense and is void; and that petitioner

having served the one-year sentence for escape, his fur-

ther detention was unlawful. The verified petition al-

leged further that the verdict ‘‘guilty as charged’’ re-

ferred to the single offense shown by the evidence and

that such verdict was a finding of guilt of a single of-

fense. Response of the Warden (R. 8-10) contained de-

nials, and included certified copies as follows: Mann Act

indictment (R. 14-18), Judgment thereon (R. 18-19), Com-

mitment on eighteen months sentence (R. 19), Petition

to revoke probation filed May 19, 1944 (R. 26-27), Judg-

ment revoking probation and sentence of three years (R.

28, 29), Commitment thereon (R. 29-31), Indictment, }

Judgment and Commitment for Escape (R. 38-42). No

oral testimony was given.

The trial judge in Kansas, the Honorable Arthur J. )

Mellott, in a wriiten opinion (R. 43-48) held that it was

unnecessary to construe the indictment as petitioner’s

only remedy was to have appealed. The Tenth Circuit

Court of Appeals affirmed the judgment of the trial \

court (R. 51-53) but gave a different reason, namely,

that Count 2 stated a separate and distinct offense.

6

Bowker v. Hunter, 158 F. 2d 854.

7

REASONS FOR GRANTING THE WRIT AND.

AUTHORITIES IN SUPPORT THEREOF.

1. Construction and application of Section 2 of the

Mann Act, 18 U. S. Code 398, is involved. This Court

will grant a review in such a case. Cleveland v. United

States, 328 U. S. .., 91 L. Ed. 1, 67 S. Ct. 13; United

States v. Beach, 324 U. S. 193, 89 L. Ed. 865; Mortensen

v. United States, 322 U. S. 369, 88 L. Ed. 1337, 64 S. Ct.

1037. No court heretofore has held that charges of

‘‘transport and cause to be transported’’ and ‘‘obtain a

form of transportation and transport’? based on Sec-

tion 2 of the Act, state more than a single offense. The

statute is highly penal and it is of general importance

that the Supreme Court pass on this question.

2. Petitioner is deprived of liberty without due process

in violation of Fifth Amendment. When petitioner

served in full the eighteen months sentence on Count 1

he paid for his offense. The Court had no power years

thereafter to impose three-year sentence. Re Bradley,

318 U. S. 50, 63 S. Ct. 470, 87 L. Ed. 608; Ex parte

Lange, 85 U. S. 163, 21 L. Ed. 872; Roberts v. United

States, 320 U. S. 264, 64 S. Ct. 113, 88 L. Ed. 41; Ez

parte Nielson, 131 U. S. 176, 185, 9 S. Ct. 672, 33 L. Ed.

118; Bowen v. Johnston, 306 U. S. 19, 24, 59 S. Ct. 442,

83 L. Ed. 455; Miller v. United States, 2 Cir., 147 F.

2d 372.

3. Transportation is the gist of the offense defined by

the Mann Act. Ellis v. United States, 8 Cir. 138 F. 2d

612, Robinson v. United States, 10 Cir., 143 F. 2d 276.

And the decision of the Tenth Cireuit that several counts

drawn under Section 2, 18 U. S. Code 398, all referring

to one transportation of one woman, state more than a

single offense, is in conflict with those decisions.

4. The decision of the Tenth Circuit Court of Appeals

conflicts generally with decisions of the several circuits

interpreting the Mann Act. For example, the five counts

in the present case all pertain to transportation by auto-

mobile and are therefore limited to Section 2 of the

Mann Act, 18 U. S. Code 398. Each count refers to the

same date, same woman transported, same means of

transportation, same points of origin and destination.

In Roark v. United States, 8 Cir. 17 F. 2d 570, 51 A.

L. R. 870, Anno., page 875, the indictment contained

four counts pertaining to transportation of the same

woman from Texas to Colorado by common carrier, and

the Court with considerable hesitancy held that two

separate offenses were stated, eg. ‘‘transport or cause

to be transported’’ under Section 2 (398) and ‘‘induced

to go in interstate commerce’’ under Section 3 (399). )

Circuit Judge Kenyon dissented.

The decision of the Circuit Court of Appeals conflicts

with the decision of the First Circuit in Malaga v. United

States, 57 F. 2d 822.

The decision of the Circuit Court of Appeals conflicts

with the decision of the Eighth Circuit in Huffman v.

United States, 259 F. 35; decisions of the Ninth Circuit

in Suslak v. United States, 213 F. 913, and Tobias v.

United States, 2 F. 2d 361, in which cases several counts

were treated as charging a single offense (see annota-

tion, 51 A. L. R. 875).

. -—

— _ -

-_—

9

5. The decision of the Cireuit Court in the present

ease conflicts with the decision of the Eighth Circuit in

Lapage v. United States, 146 F. 2d 536, 156 A. L. R.

965, 971, and the decision of the Supreme Court in

United States v. Kenofskey, 243 U. S. 440, 37 S. Ct. 438,

61 L. Ed. 836, in holding that evidence sufficient to sus-

tain the charge of ‘‘obtaining a form of transportation

and transpoy‘ing’’ would be wholly insufficient to sus-

tain a charge of ‘‘transport or cause to be transported.”’

The conduct in either instance can be characterized as

bringing about transportation. In the Kenofskey case it

was said that ‘‘cause’’ is a word of broad import and

in its well known sense means to bring about.

6. The decision of the Tenth Circuit Court of Appeals

in the present case conflicts with the rule established

by the Supreme Court for determining single or sepa-

rate offenses. The rule is stated in Blockburger v.

United States, 284 U. S. 299, 304, 52 S. Ct. 180, 76 L.

Ed. 306.

7. Decision of the Circuit Court conflicts with Supreme

Court decision in Ebeling v. Morgan, 237 U. S. 625, 59

L. Ed. 1151, 35 S. Ct. 710. There the thing prohibited

under 18 U. S. Code 312, was the injuring of ‘‘any mail

bag’’. Several mail bags were cut and it was held that

separate offenses were committed. But in the present

case, the thing prohibited is ‘‘transportation’’ and there

was only one transportation.

8. The decision of the Tenth Circuit in the present

case subjects petitioner to a second punishment after he

had fully served a valid sentence for the single offense.

10

The decision obviously is wrong and adds confusion to

interpretation of the Mann Act. The statement of Cir-

cuit Judge Parker in Short v. United States, 98 F. 2d

614, 112 A. L. R. 969, Anno. 983, quoting Judge Evans,

is particularly applicable here. There it was attempted

to use two substantive offenses as basis of two conspir-

acy charges. It was said:

“‘The Fifth Amendment to the Constitution pro-

tects all against double punishment for the same

offense. Its enforcement and its application demand

a test which is practical, not a theoretical one.’’

9. Habeas corpus is available to determine right to

discharge from unlawful imprisonment. Bozza v. United

States, (Feb. 17, 1947), 328 U. S. .., 67 S. Ct. 645; In

re Bonner, 151 U. S. 242, 14 S. Ct. 323, 38 L. Ed. 149.

Habeas corpus resulted in review by the Supreme Court

of similar question in Ebeling v. Morgan, 237 U. S. 625,

59 L. Ed. 1151, 35 S. Ct. 710.

10. Ruling of the trial court, District of Kansas, and

considered but not decided by the Tenth Circuit Court,

that habeas corpus cannot be used to obtain freedom

from excessive sentence, citing U. S. v. Hill, 3 Cir., 71

F. 2d 906, and Caballero v. Hudspeth, 10 Cir., 114 F.

2d 545, is in conflict with the foregoing decisions of the

Supreme Court; and decision of Fifth Circuit, Sprague

v. Aderholt, 45 F. 2d 790; Miller v. United States, 147

F. 2d 372; and of the Eighth Circuit in Biddle v. Thiele,

11 F. 2d 235, and Stuxeberg.v. Morgan, 246 F. 98, 99.

11. Under the Federal Probation Law, 18 U. S. Code

724, a Federal District Court does not have authority in

11

sentencing for a single offense to impose a term of im-

prisonment followed by probation. Power to suspend im-

position or execution of sentence and place on probation

is statutory. Roberts v. United States, 320 U. S. 264,

64 S. Ct. 113, 88 L. Ed. 41; Escoe v. Zerbst, 295 U. S.

490, 79 L. Ed. 1566, 65 S. Ct. 818; Trant v. United States,

90 F. 2d 718. In White v. Burke, 10 Cir. 43 F. 2d 329,

it was held that grant of power in the probation law

to impose a fine and place defendant on probation, neces-

sarily excludes the power to impose greater punishment,

namely, a period of imprisonment followed by probation.

12. Petitioner having served the one year sentence and

commitment for escape and the three year sentence being

excessive, is estitled to be discharged from custody of

the Warden. Youst v. United States, 151 F. 2d 666.

WueReEForE, your petitioner prays that a writ of cer-

tiorari issue under the 28] of this Court direct to the

United States Circuit Court of Appeals, Tenth Circuit,

commanding said court certify and send to this Court a

full and complete transcript of the record and of the

proceedings of the said court in its case Docket No. 3397,

Bert Charles Bowker, Appellant v. Walter A. Hunter,

Warden, United States Penitentiary, Leavenworth, Kan-

sas, Appellee, to the end that this cause be reviewed by

this Court as provided for by the statutes of the United

States; and that the judgment of said Tenth Circuit

Court of Appeals in said cause be reversed by this

12

Court, and for such further relief as to this Court may

seem proper.

Bert CHartes Bowker,

Petitioner,

By HOWARD F. McCUE.

National Bank of Topeka Bldg.,

Topeka, Kansas,

Attorney for Petitioner.