
    MacDONALD v. UNITED STATES.
    No. 12365.
    Circuit Court of Appeals, Eighth Circuit.
    June 30, 1943.
    Frank D. Rader, of Kansas City, Mo., for appellant.
    Richard K. Phelps, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.
    
      Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
   SANBORN, Circuit Judge.

On September 15, 1939, the appellant, who was represented by counsel, entered a plea of guilty to an indictment which, in eleven counts, charged him with having used the United States mails in furtherance of a scheme to defraud. 18 U.S.C.A. § 338. The indictment was in conventional form, and each count charged a different use of the mails in execution of the scheme described in the first count and incorporated by reference in the other counts. On September 18, 1939, the appellant was sentenced to a five-year term of imprisonment on each count of the indictment, the sentence imposed under count two to be served consecutively to that imposed under count one, and the sentences under the other counts to be served concurrently with the sentence under count one. The appellant entered upon the service of the sentences on September 29, 1939. No question as to the sufficiency of any count of the indictment, or as to the legality of the sentences imposed, was raised during the term of court at which the judgment was entered.

On October 14, 1941, the appellant filed a motion to vacate and to correct the judgment of September 18, 1939. The District Court appointed counsel to represent him. It denied his motion on December 22, 1941. On February 25, 1942, the appellant again filed a motion to vacate and to correct the judgment. He also petitioned for an order requiring that he be produced in court at the time the motion was to be heard, and petitioned for the issuance of subpoenas for witnesses. On April 14, 1942, the United States Attorney moved for a dismissal of the appellant’s motion on the ground that it failed to show that the judgment of September 18, 1939, was incorrect. This motion was granted April 27, 1942, and the appeal is from the order dismissing the appellant’s motion. This Court granted appellant leave to proceed in forma pauperis and appointed counsel to represent him.

The basis of the appellant’s motion to vacate and to correct the judgment is that the second count of the indictment was void upon its face because the letter referred to in that count was alleged to have been mailed before the inception of the scheme to defraud, and that therefore the five-year sentence of imprisonment imposed under that count, which runs consecutively to the sentences under the other counts, should be vacated. While we think the appellant is mistaken about the invalidity of the second count, we shall not discuss the merits of his contentions, for the reason that we are satisfied that the District Court was without power, after the expiration of the term at which the judgment was entered, to grant the appellant’s motion. This case, we think, is clearly ruled by Gilmore v. United States, 8 Cir., 131 F.2d 873, 874, 875.

The order appealed from is affirmed.  