BIRTCH et al. v. UNITED STATES, 164 F.2d 880

PER CURIAM. Appellants Birtch and Denham were indicted in the court below under two indictments, found under 18 U.S.C.A. §§ 415 and 418a, one charging violation of the National Stolen Property Act, and the other conspiracy to violate that act. After trial had been commenced under the indictment charging the substantive offense, they withdrew their pleas of not guilty in both cases, and, upon entering pleas of guilty, were given sentences of ten years in each case to run concurrently.

After they had been imprisoned under the sentences in Leavenworth penitentiary they sought release under writs of habeas corpus before District Judge Helvering; and his order denying the discharge was affirmed by the Circuit Court of Appeals of the 10th Circuit in an opinion in which the facts of the case are fully set forth. See Birtch et al. v. Hunter, 10 Cir., 158 F.2d 134, certiorari denied 331 U.S. 825, 67 S.Ct. 1314.

After the denial of their petition for release under habeas corpus, appellants filed in the court below a motion to vacate the judgments against them and the sentences under which they were imprisoned and asked that the judge who had tried them disqualify himself from passing upon the motion. The grounds of the motion to vacate were that no sufficient proof had been offered of the substantive crime charged and that the evidence taken in the habeas corpus hearing showed that no basis existed for the finding of the conspiracy indictment.

The trial judge properly declined to disqualify himself and proceeded with the hearing of the motion, as it was his duty to do. Morse v. Lewis, 4 Cir., 54 F.2d 1027, 1031. The motion was properly denied, since a motion of this sort may not be used to review the proceedings of the trial as upon appeal or writ of error, but merely to test their validity when judged upon the face of the record or by constitutional standards. See Lucas v. United States, 4 Cir., 158 F.2d 865, 866; Barber v. United States, 4 Cir., 142 F.2d 805, 807; Ong v. United States, 4 Cir., 131 F.2d 175. Affirmed