The opinion of the court was delivered by: PLATT
By Notice of Motion returnable at 4:00 o'clock in the morning on October 18, 1976, petitioner has "applied" for "an application made in the interest of Justice pursuant to Title 28 USC § 2255 for the Court * * * to vacate one of two sentences and fines imposed" on him on July 9, 1976.
Following a verdict by a jury finding the petitioner guilty of receiving or transporting a quantity of camera lenses and accessories which had been unlawfully removed from the custody of the United States Custom Service, petitioner knowing the same to have been unlawfully removed, in violation of 18 U.S.C. § 549 (Count 1), and of possession of camera lenses and accessories which had been stolen from a shipment moving in interstate or foreign shipment, petitioner knowing the same to have been stolen, in violation of 18 U.S.C. § 659 (Count 2), this Court sentenced petitioner to two (2) years imprisonment on Count one and ten (10) years on Count two and imposed a $5,000 cumulative fine on each count for a total fine of $10,000. The Court also ordered a study as described in Title 18 U.S.C. § 4208(c) and stated that the defendant's sentence would be subject to modification pursuant to Title 18 U.S.C. § 4208(b).
On appeal, petitioner's judgment of conviction was affirmed by the Court of Appeals for the Second Circuit without opinion and the United States Supreme Court denied certiorari.
Thereafter this Court suspended the execution of the remainder of the prison sentences under counts 1 and 2, placed petitioner on probation for a period of five (5) years on each count to run concurrently, and let the fines stand as originally imposed.
Petitioner now says that his convictions on the two counts should have been merged for the purposes of sentencing or that the indictment was multiplicitous in that the receiving or transporting charge and the possession charge actually constitute only one offense and therefore his sentence under one of the counts of the indictment is in violation of the Constitution and the laws of the United States and must be vacated under 28 U.S.C. § 2255.
At the outset, it may be noted that the imposition of a fine alone may not constitute sufficient custody for habeas corpus jurisdiction. Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976); Russell v. City of Pierre, 530 F.2d 791 (8th Cir. 1976); Edmunds v. Won Bae Chang, 509 F.2d 39 (9th Cir.), cert. denied, 423 U.S. 825, 46 L. Ed. 2d 41, 96 S. Ct. 39 (1975); Pueschel v. Leuba, 383 F. Supp. 576 (D.C. Conn. 1974).
Assuming for the sake of argument that the imposition of cumulative fines, coupled with the fact that the petitioner is required to serve concurrent probationary terms, may constitute sufficient prejudice to the petitioner to warrant habeas corpus review, petitioner's application is, for the reasons hereinafter indicated, still insufficient in that in this case petitioner was convicted of not one but of two separate crimes.
There are two applicable tests to determine whether the offenses are separate or the same, the first of which was set forth by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), as follows (at page 304):
"[Where] the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."
In the case at bar, the government had to establish under 18 U.S.C. § 549 that the defendant received or transported the merchandise and that the merchandise was unlawfully removed from Customs custody, whereas under 18 U.S.C. § 659 the government had to establish that the defendant had goods in his possession and that the goods were stolen from a foreign or interstate shipment.
Thus, to obtain a conviction under Count 1 of the indictment, i.e., to show a violation of § 549, the government had to prove unlawful removal from Customs custody, whereas under Count 2 the government was not required to adduce any such proof but was merely required to show that the goods were part of an interstate or ...