Opinion
Robert Theodore Weaver, pro se.
Richard D. FitzGibbon, Jr., U.S Atty., St. Louis, Mo., for defendant.
MEMORANDUM
MEREDITH, District Judge.
This matter is pending upon petitioner's motion under 28 U.S.C. § 2255 to vacate his sentence based on the sole ground that the indictment was insufficient to confer federal jurisdiction. The petitioner was tried and convicted of armed robbery of a federally-insured bank. This conviction was affirmed by the 8th Circuit Court of Appeals, Hunt v. United States, 231 F.2d 784 (1956). Since that time petitioner and his codefendant Hickman have filed numerous motions to vacate sentence, which were denied by the district court, one of which was appealed and affirmed by the 8th Circuit Court of Appeals, Hickman v. United States, 246 F.2d 178 (1957). The indictment on which petitioner was convicted and which was filed with the Clerk of the United States District Court for the Eastern District of Missouri on October 13, 1954, is as follows:
'UNITED STATES OF AMERICA, Plaintiff, v. ROBERT MICHAEL HICKMAN, ROBERT THEODORE WEAVER, and CARL HUNT, Defendants. No. 27991(1)
'The Grand Jury charges:
'That on or about the 27th day of July, 1954, at Pevely, in the County of Jefferson, in the State of Missouri, within the Eastern Division of the Eastern District of Missouri, ROBERT MICHAEL HICKMAN, and ROBERT THEODORE WEAVER,
defendants, KNOWINGLY, WILLFULLY, UNLAWFULLY and FELONIOUSLY, by force and violence, and by intimidation took from the presence of another, to wit, Robert W. Hornsey, William Weber, Violet Detzel, and Dorothy Meng, who were then and there president, cashier, teller, and an employee, respectively, of the Bank of Pevely, Pevely, Missouri, certain money, to wit, the sum of $40,174.00, more or less, of lawful money of the United States, belonging to and in the case, custody, control and management and possession of said Bank of Pevely, a banking institution organized according to law, the deposits of which are insured by the Federal Deposit Insurance Corporation, under Certificate No. 13846; that in committing the above offense, they, the said defendants, did put in jeopardy the lives of the said Robert W. Hornsey, William Weber, Violet Detzel, and Dorothy Meng, by the use of a dangerous weapon and device.
'In violation of Section 2113(a) and (d), Title 18, United States Code.
F nm 10,000 or I nm 25 y or b.'
The complaint of petitioner is that in the indictment it is alleged that the robbery was committed on the 27th day of July, 1954, and states that the 'Bank of Pevely, a banking institution organized according to law, the deposits of which are insured. * * *' In other words, petitioner's complaint is that the indictment filed on the 13th of October does not allege that the bank was insured on the date of the robbery, July 27, 1954.
Rule 12(b)(2), Federal Rules of Criminal Procedure, provides that 'Defenses and objections based on defects * * * in the indictment * * * may be raised only by motion before trial. * * * Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed * * * at any time during the pendency of the proceeding.' This Court is of the opinion that the indictment is not fatally defective and that this is the type of an attack that should have been raised by motion prior to trial and cannot now be attacked by a motion to vacate the judgment under 28 U.S.C. § 2255. Stegall v. United States, 259 F.2d 83 (6 Cir. 1958); Williams v. United States, 344 F.2d 264 (8 Cir. 1965). The 8th Circuit in Williams, supra, said:
'The indictment sets out the material elements of the offenses charged and is sufficient to enable the defendant to understand and defend the charges made and to preserve his rights to assert former jeopardy in any proceedings which might be taken against him. Moreover, we have frequently held that absent extremely unusual circumstances, the validity or sufficiency of an indictment is not reviewable upon appeal from an order denying a § 2255 motion. Taylor v. United States, 8 Cir., 332 F.2d 918, 919; Jackson v. United States, 8 Cir., 325 F.2d 477, 478; Roth v. United States, 8 Cir., 295 F.2d 364, 365; Keto v. United States, 8 Cir., 189 F.2d 247, 249, 251. No such unusual circumstances are here shown.'
The transcript of the original trial, at page 157, shows that government's Exhibit 8 was a certificate from the Federal Deposit Insurance Corporation showing that the deposits of the Bank of Pevely, Pevely, Missouri, were insured. The United States District Clerk's Office does not have Exhibit 8 nor has the Court been able to locate government's Exhibit 8, however, the Court did obtain from the Bank of Pevely, Pevely, Missouri, a photostatic copy of their Federal Deposit Insurance Corporation certificate showing that in truth and in fact their deposits were insured from and after September 21, 1950. The indictment alleges that the deposits of the Bank of Pevely were insured by the Federal Deposit Insurance Corporation under certificate No. 13846. The photostatic copy of the Federal Deposit Insurance Corporation certificate insuring the Bank of Pevely is certificate No. 13846. A photostatic copy of this certificate is attached to and made a part of this memorandum.
The motion of petitioner will be dismissed. A hearings is not required.