The opinion of the court was delivered by: ZAVATT
The petitioner has filed what he designates to be a 'Motion for an order to vacate, set aside or correct' the sentences which this court imposed on May 19, 1960, in cases numbered 60-CR-7 and 60-CR-77. The court appointed John L. Sullivan of the Legal Aid Society of New York to represent the petitioner and a hearing was held on April 22, 1963. He moves pursuant to28 U.S.C. § 2255 and Rule 35, Fed.R.Crim.P. More than sixty (60) days having elapsed since the sentences were imposed, the court may not reduce the sentences in its discretion. But it may correct the sentences at any time if they are illegal.
His motion pursuant to 28 U.S.C. § 2255 is timely but may be granted only if the sentences were 'imposed in violation of the Constitution or laws of the United States, or (that) the court was without jurisdiction to impose such sentence, or (that) the sentence was in excess of the maximum authorized by law, or (is) otherwise subject to collateral attack, * * * .' 28 U.S.C. § 2255.
Petitioner does not contend that the court lacked jurisdiction to impose the sentences or that they were in excess of the maximum authorized by law. In fact, petitioner on March 24, 1960, pleaded guilty to two counts of a six count indictment in 60-CR-7 charging him with violations of 18 U.S.C. § 2314 which authorizes a maximum sentence of ten (10) years on each count and a maximum fine of $ 10,000 on each count. He was sentenced on May 19, 1960, to a term of seven (7) years on each such count to run concurrently and was so sentenced pursuant to 18 U.S.C. § 4208(a)(2) thus authorizing the Board of Parole to release him at any time in its discretion. He pleaded guilty on May 19, 1960, to one count of a three count indictment against him in 60-CR-77 charging him with violations of 18 U.S.C. § 2312, which authorizes for that offense a maximum term of five (5) years and a maximum fine of $ 5,000. On May 19, 1960, he was sentenced to a term of three (3) years to run concurrently with the sentences imposed in 60-CR-7 and pursuant to 18 U.S.C. § 4208(a)(2). Whereas the total maximum sentences which the court was authorized to impose aggregated twenty-five (25) years and fines of $ 25,000, petitioner was sentenced to serve a maximum of seven (7) years. No fine was imposed.
The petitioner complains of the fact that a codefendant, Frank Herman Levine, pleaded guilty to the same counts of said two indictments on October 3, 1960, before another judge of this court approximately five (5) months after sentences were imposed upon petitioner and was sentenced by Judge Bruchhausen of this court on November 25, 1960 to terms of six (6) years in 60-CR-7 (to run concurrently) and a term of five (5) years in 60-CR-77 to run concurrently with the sentences in 60-CR-79 It is not clear from the petitioner whether he claims that these comparative sentences were so disparate as to entitle him to relief under either Rule 35, Fed.R.Crim.P. or 28 U.S.C. § 2255. The court has examined the records with reference to the co-defendant Levine and finds that Levine made a timely motion for reduction of his sentences and that on January 31, 1961, Judge Bruchhausen granted that motion to the extent of reducing Levine's sentences in 60-CR-7 from six (6) years to four (4) years, to run concurrently and to the extent of reducing the sentence imposed in 60-CR-77 from five (5) years to four (4) years, to run concurrently with those imposed in 60-CR-7.
The disparity in the sentences imposed by this court on May 19, 1960, and those reduced sentences imposed by Judge Bruchhausen on January 31, 1961, would appear to be the gravamen of petitioner's complaints. He alleges that he and Levine were 'of equal guilt'; that he was 'a first offender'; that 'the district judge * * * gave less of a sentence to a co-defendant of equal guilt who was a second offender'; that 'the district judge arbitrarily, and without justification singled out the petitioner for this harsh and severe punishment.' Although the petition alleges that petitioner 'had no prior Federal conviction' it omits a conviction for petty larceny (reduced from a charge of grand larceny) in the County Court of Kings County, New York, in December of 1954.
The presentence report, which was studied carefully before sentences were imposed upon the petitioner, reveals an unsavory character involved in criminal schemes in order to make easy money. At ages 22 to 27 while in the military service (July 29, 1941 to August 17, 1945) he received two (2) Special Courts Martial and two (2) Summary Courts Martial for being AWOL over a total period of 1,127 days. He received a discharge other than honorable for desertion and physical unfitness for military service -- the latter because of what the presentence report describes as 'a constitutional psychopathic state, emotional immaturity.' He appears to have 'skirted the fringes of illegal activities for many years', was engaged in a sophisticated fraud scheme with Levine and had no verifiable legitimate employment since December 1958. He was discharged by U.S. Plywood Corp. (for whom he worked as a truck driver from 1948 to September 1953) 'for stealing from employer.' When questioned by an officer of our Probation Department as to how he supported himself and his invalid wife in an apartment 'well furnished in excellent taste' 'in an upper middle class section of Queens', he claimed 'to have been living on savings'. Yet his 'only acknowledged resources were $ 200 in Government Bonds and approximately $ 300 in a savings account'. 'Defendant's wife corroborated these statements' as to his acknowledged resources.
Petitioner has been involved with others in the theft of Cadillac automobiles, their sale to individuals and a scheme under which these cars would then be 'stolen' from the purchaser and false insurance theft claims filed. In one known instance in May 1958 the petitioner and two co-defendants, Levine and Malachowsky, embarked upon a scheme with reference to a Cadillac automobile registered in petitioner's name. Levine and Malachowsky were to 'steal' petitioner's car so that he could file a fraudulent insurance theft claim. Apparently, the petitioner was overanxious; for he filed the claim before the 'theft' and none of the conspirators were aware of the fact that they were under surveillance at the very time when Levine and Malachowsky purported to steal the car.
In 60-CR-77, the petitioner, Levine, Malachowsky and others were indicted in a four count indictment as follows:
Count 1 -- Malachowsky charged with knowingly transporting a 1958 stolen Cadillac convertible from Washington, D.C. to Brooklyn, New York, on August 13, 1958.
Count 2 -- Petitioner, Levine, Malachowsky and another charged with knowingly transporting a 1957 Cadillac coupe from Washington, D.C. to Queens County, New York, on May 6, 1958.
Count 3 -- Petitioner, Levine, Malachowsky and another charged with knowingly transporting a 1958 Cadillac sedan from Queens County, New York to West New York, New Jersey, on November 3, 1958.
Count 4 -- Levine, Cohen, Malachowsky and others charged with conspiracy to transport stolen motor vehicles in interstate commerce.
Petitioner and Levine were arrested on December 29, 1958, on these charges. They were indicted on March 3, 1960. It was to Count Three of this indictment that petitioner pleaded guilty before me on May 19, 1960.
After petitioner and Levine had been arrested for the charges later made in indictment 60-CR-77, they embarked upon another scheme -- an imaginative, bold, professional confidence game in which they used The Pentagon as a means of defrauding their victims. In October of 1959 they represented to a wholesale locksmith that they had access to 9,000 new locks and several trucks -- military surplus items -- and offered them for sale to him for $ 13,000. The wholesaler called in a friend to become a co-purchaser and between them they paid a deposit of $ 4,000. Later that month, petitioner and Levine took the victims to Washington, D.C. via commercial airplane and to The Pentagon, where the victims were to meet petitioner's and Levine's 'contact'. No 'contact' appeared at The Pentagon. But after petitioner and Levine separated briefly from the victims in The Pentagon they returned with genuine receipt forms falsely filled out to show that petitioner and Levine had made a deposit to purchase the locks and trucks from the United States Government. Convinced of the bona fides of petitioner and Levine and of the availability of the merchandise, the victims there and then paid to the two schemers the balance of $ 9,000. Thereupon, the petitioner, Levine and the two unsuspecting victims returned by plane to New York. A few days thereafter, petitioner and Levine delivered to the victims a false bill of lading dated October 26, 1959, which purported to indicate that the 9,000 locks and two trucks were enroute from Columbus, Georgia to Brooklyn, New York via the Hague Transfer Company. The goods were never delivered. In fact they never existed. In 60-CR-7 the petitioner and Levine were indicted for this scheme in a six count indictment as follows:
Count 1 -- For devising a scheme to obtain money by false and fraudulent pretenses and inducing one of the purchasers to be transported in interstate commerce from New York State ...