The opinion of the court was delivered by: DAVIS
John Morgan Davis, District Judge.
The petitioner, Edward William Lancer, has been a familiar name and face with this Court since July 28, 1965 when he entered a guilty plea and was sentenced pursuant to eight separate Bills of Indictment from six different districts that were consolidated in the Eastern District of Pennsylvania for the purposes of arraignment. It should be noted that the request for consolidation was made by the petitioner. The petitioner was charged in all the indictments with violations of either Title 18 U.S.C. § 641 or § 500 or § 1708 which basically charged him with the receipt, concealment and conversion of stolen postal money orders. He now petitions this Court to vacate his sentence pursuant to 28 U.S.C. § 2255.
After a pre-sentence report was ordered and then submitted, the Court sentenced the petitioner on two of the indictments, numbers 22119 and 22173. On the remaining indictments the sentences were suspended.
The Court sentenced the petitioner under indictment number 22119 to ten years in prison, with the first two months in a jail-type institution. The remainder of the sentence was suspended and the defendant was placed on probation under the provisions of 18 U.S.C. § 3651. Under indictment number 22173, the imposition of sentence was suspended, and the petitioner placed on five years probation to commence after the probation in indictment number 22119 was completed.
On March 29, 1967 the petitioner was brought before this Court for a violation of probation. An Order revoking probation on indictment number 22119 was entered and the petitioner was committed to the custody of the Attorney General for a period of nine years and ten months, such imprisonment being imposed pursuant to the adult study provisions of 18 U.S.C. §§ 4208(b) and 4208(c). On August 3, 1967, the petitioner reappeared before the Court for reconsideration of his sentence and the same probation was imposed for a period of nine years and ten months on the two separate indictments.
On June 10, 1968, the petitioner was returned to Philadelphia for a second violation of probation. Again the Court continued the petitioner on probation.
On October 13, 1970, a third warrant for violation of probation was issued. This warrant, having been served upon the petitioner in the form of a detainer, is to be acted upon when the petitioner is released from his present custody at Atlanta, Georgia.
Crucial to the entire factual situation presented above is the language of indictment number 22119. The pertinent part states that the petitioner:
. . . did knowingly and unlawfully receive, conceal and retain with intent to convert to his own use or gain a quantity of United States Postal Money Orders, to wit: 364 Postal Money Orders, including Money Order 4, 552, 156, 826, knowing the same to have been embezzled, stolen, purloined, and converted from postal stations in Washington Crossing, Pennsylvania, and Burmingham, New Jersey. In violation of Title 18 U.S.C. § 641.
The indictment omits any language setting forth the value of the postal money orders allegedly received, concealed and retained. The petitioner therefore contends that since no mention was made in the indictment or at the arraignment and sentence proceedings as to amount, he could only have been sentenced to one year and/or $1000.00 fine. This contention is maintained because the language of 18 U.S.C. § 641 has a distinct dividing line for the sentencing Court. If the amount stolen is over $100.00, a ten year prison term and/or $10,000.00 fine could be imposed, and only one year and/or $1000.00 fine if under $100.00.
In resolving the first issue, it is of importance to consider two questions. The first is whether the indictment is lacking in any essential element; and the second is whether an indictment can be collaterally attacked by a motion to vacate or whether the sufficiency of an indictment must be tested on direct appeal.
Keeping in mind the cases indicated in the petitioner's brief and the United States Magistrate's report, this Court feels that the indictment is sufficient for both the petitioner to have plead guilty and for this Court to have accepted a guilty plea and impose the sentence that it did. Therefore the petitioner must appeal the sufficiency of the indictment ...