Cachoian v. United States, 71-2310 Summary Calendar.
Decision Date | 10 December 1971 |
Docket Number | No. 71-2310 Summary Calendar.,71-2310 Summary Calendar. |
Parties | Gerard CACHOIAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Gerard Cachoian, pro se.
Robert W. Rust, U. S. Atty., Neal R. Sonnett, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
Gerard Cachoian appeals from the District Court's order denying his motion for relief from judgment pursuant to Rule 60(b), Federal Rules of Civil Procedure. We vacate the order and remand for further proceedings.
On October 3, 1957, Cachoian was indicted by a Grand Jury in the Southern District of Florida and charged in five counts with violations of the Federal narcotics laws. He pled guilty to one count of that indictment charging him with a violation of the Marijuana Tax Act, 26 U.S.C. § 4744(a). The other counts were then dismissed. He was sentenced to three years' imprisonment, which sentence has been completely satisfied.
In 1969, Cachoian was convicted of a subsequent narcotics violation in the Southern District of New York. He was sentenced as a second offender on the basis of the 1957 conviction in the Southern District of Florida. He is now serving the enhanced 1969 sentence following an unsuccessful appeal to the Second Circuit. United States v. Cachoian, 2 Cir., 1966, 364 F.2d 291. In November of 1969, Cachoian filed a motion to vacate the 1957 sentence in the Southern District of Florida. He claimed that the conviction was illegal and void on its face under Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). The District Court denied the motion because this Court had held that Leary was to be given prospective application only. See United States v. Scardino, 5 Cir., 1969, 414 F.2d 925. In May 1971, Cachoian filed his Rule 60(b) motion to be relieved from the judgment denying his Section 2255 motion which the District Court denied without assigning written reasons.
This Court has now held that Leary should be applied retroactively. Harrington v. United States, 5 Cir., 1971, 444 F.2d 1190. However, in Smedberg v. United States, 5 Cir., 1971, 448 F.2d 401, we found it unnecessary to consider the retrospective application of Leary because under the facts and circumstances presented we held 448 F.2d at 403.
The Government has now confessed error in its brief filed with us and has stated it has no objection to the entry of an order vacating the conviction in the court below. Courts are not bound to treat a confession of error by the United States as an appellate nolle prosequi. In Young v. United States, 315 U.S. 257, 62 S.Ct. 510, 86 L.Ed. 832 (1942), the Supreme Court settled the proposition as follows:
315 U.S. at 258-259, 62 S.Ct. at 511.
As a matter of practice, the Court makes its own independent examination of the record, retaining in full its power of independent decision as to the issues presented for decision. Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1968); Young v. United States, supra; Gibson v. United States, 329 U.S. 338, 344 n. 9, 67 S.Ct. 301, 304 n. 9, 91 L.Ed. 331 (1946). Occasionally, appellate courts of the United States have declined to...
To continue reading
Request your trial-
United States v. Blaszczak
...of binding appellate courts "to treat a confession of error by the United States as an appellate nolle prosequi," Cachoian v. United States , 452 F.2d 548, 550 (5th Cir. 1971). Upon closer inspection, those cases are readily distinguishable from the one before us. Here, we are asked to deci......
-
Rose v. US
...23, 98 S.Ct. 81, 82, 54 L.Ed.2d 207 (1977); United States v. Kepner, 843 F.2d 755, 763 and n. 6 (3rd Cir.1988); Cachoian v. United States, 452 F.2d 548, 550 (5th Cir.1971); Georges v. United States, 262 F.2d 426, 427 (5th Cir. 1959); United States ex rel. Marino v. Holton, 227 F.2d 886, 894......
-
Riscard v. United States
...(D.C. Texas 1970), 315 F.Supp. 939; United States v. Ali Houssein (D.C.Maryland 1971), 326 F.Supp. 1194. See also Cachoian v. United States (5 Cir. 1971), 452 F.2d 548; United States v. Broadus (Circuit 1971), 146 U.S.App.D.C. 178, 450 F.2d 639; Navarro v. United States (9 Cir. 1971), 449 F......
-
Ex parte Taylor
...as it related to 'Part I of Leary' and remanded for reconsideration in light of Harrington and Leary. See also Cachoian v. United States, 452 F.2d 548 (5th Cir. 1971). The California Supreme Court was confronted with the same question as we are in the case of In re Johnson, 3 Cal.3d 404, 90......