The opinion of the court was delivered by: GOURLEY
This proceeding relates to a motion to vacate and set aside judgment and sentence imposed March 1, 1948. It is contended that sentence was imposed in violation of the Constitution of the United States, and that the Court was without jurisdiction. 28 U.S.C.A. § 2255.
The facts relative to the offense are:
On or about March 21, 1947, the defendant entered the Bellevue Savings and Trust Company at Bellevue, Pennsylvania, and presented a check for deposit in the amount of $ 2,500.00, drawn on the Union National Bank of Springfield, Missouri. A receipt was given the defendant that said check had been presented for deposit and payment. No funds were advanced by the bank on said check. Said check was signed by Harry B. Gallagher, the defendant, and the bank was actually in existence, although the defendant had no account in said bank. However, the defendant drew ten checks totaling One Hundred Fifty Dollars ($ 150.00), on the Bellevue Savings and Trust Company, which were not honored or paid by said bank although he secured value from the persons who cashed said checks.
Subsequent to the entry of the plea of guilty, the Attorney General of the United States issued a directive to all United States Attorneys to not prosecute or secure the return of an indictment against any person who draws a check in his given birth name, or in a name under which he was commonly known, where the check is drawn on a bank that is actually in existence even though the drawer of said check has no account in the bank against whom the check is drawn.
It has been represented to the Court by the United States Attorney that this directive was issued for the reason that under such facts and circumstances a violation of the National Stolen Property Act does not exist.
The Act in effect under which said indictment was returned provides, inter alia, that whoever shall transport or cause to be transported in interstate commerce any falsely made, forged, altered or counterfeited securities, knowing the same to have been falsely made, forged, altered or counterfeited, shall be guilty of a criminal offense. 18 U.S.C.A. § 415 (Revised section 2314).
The question, therefore, exists whether as a matter of law it is a criminal offense for a person to draw a check in his own name upon a non-existent bank account, in an existing bank outside of the state where the check is presented for deposit or transmittal for payment.
A plea of nolo contendere to an indictment is an admission of guilt as to all facts set forth in the indictment, and a waiver of all nonjurisdictional defects and defenses, except where the plea was entered without advice and aid of counsel. The plea of nolo contendere is in itself a conviction, and the court has power to enter judgment and sentence thereon.
However, a person accused of crime cannot plead guilty to an offense which does not exist as a matter of law, or cannot vest in the District Court jurisdiction to impose judgment and sentence after a plea of guilty is entered to an indictment for a crime which does not exist under the laws of the United States.
The case of United States v. Gallagher, supra, is distinguishable from the instant case. In the Gallagher case the facts admitted by the plea of guilty to the indictment constituted a criminal offense. In the case at bar the plea of nolo contendere, which admitted the facts laid in the indictment, does not as a matter of law constitute a criminal offense.
In passing upon this question, the Court requested the Federal Bureau of Investigation to determine whether the defendant's real name was Harry B. Gallagher, or whether he was commonly known in the communities where he resided under the name of Harry B. Gallagher. He was indicted not only under the name of Harry B. Gallagher but under the following alias names: George Goodfellow, Harry Bradford Gallagher, Harry P. Clark and Harry F. Clark.
The certification of the Federal Bureau of Investigation indicates that the birth name of the defendant was Harry Bradford Gallagher although no birth certificate is available. Also, he has been commonly known as Harry B. Gallagher in the communities where he has resided, and with the military ...