August 5, 1943.
Upon Petition for Leave to Proceed upon Appeal in Forma Pauperis.
Habeas corpus proceeding by Gastavo Carrillo, opposed by P.J. Squier, Warden, United States Penitentiary, McNeil Island, Wash., wherein petition for writ, as well as petition for leave to appeal in forma pauperis, was denied by District Court. On petition to Circuit Court of Appeals for leave to appeal in forma pauperis.
Gastavo Carrillo, of Steilacoom, Wash., in propria persona, for appellant.
No other appearances were entered.
Before WILBUR, GARRECHT, and STEPHENS, Circuit Judges.
The petitioner, Gastavo Carrillo, has applied to this court for leave to proceed on appeal in forma pauperis from an order denying discharge on a writ of habeas corpus. A similar application was made to the District Court and denied, the court certifying that the appeal was without merit. The District Court did not find that the appeal was not taken in good faith.
The application of the petitioner to this court is accompanied by copies of the proceedings in the District Court including the briefs and opinion of the trial court. It appears therefrom that the petitioner was found guilty on six counts for using the United States mails in a scheme to defraud. Each count was based upon the mailing of a different letter in pursuance of the scheme. Petitioner was sentenced to fifteen years upon the six counts. He concedes that the sentences on counts 2, 3, 4 and 5 were proper but claims that, deducting credits for good time, he has served those sentences and that he is entitled to his discharge because the sentences on counts 1 and 6 are void for lack of jurisdiction in the trial court. This claim is based on the fact that although the trial was had in the central division of the southern district of California, wherein four of the letters were received, counts 1 and 6 were based upon letters directed to and received in the southern division of the southern district of California.
We have recently held in this court (McNealy v. Johnston, 9 Cir., 100 F.2d 280) that the question of whether the trial is in one or another division of the same district is a question of venue and is not jurisdictional and that a trial, judgment and sentence in one division is not invalid or void because the crime was committed in another division in the same district. See also, Silverberg v. United States, 5 Cir., 4 F.2d 908; Marvel v. Zerbst, 10 Cir., 83 F.2d 974, affirmed 299 U.S. 518, 57 S.Ct. 311, 81 L.Ed. 382. There is, as the trial court held, no merit in the petitioner's claim and the petition for leave to proceed on the appeal in forma pauperis is, for that reason, denied. De Maurez v. Squier, 9 Cir., 121 F.2d 960.