Cardarella v. United States

• Decision Date: 06 October 1965
• Docket Number: No. 18068.,18068.
• Citation: 351 F.2d 272
• Parties: Anthony CARDARELLA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

351 F.2d 272 (1965)

Anthony CARDARELLA, Appellant, v. UNITED STATES of America, Appellee.

No. 18068.

United States Court of Appeals Eighth Circuit.

October 6, 1965.

Anthony Cardarella, pro se.

Herbert J. Miller, Jr., Asst. Atty. Gen., Brian P. Gettings, Allen J. Krouse and James J. Featherstone, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and VAN PELT, District Judge.

PER CURIAM.

Anthony Cardarella, petitioner, was convicted under an indictment which charged him in Counts I and II with obstructing justice in violation of 18 U.S.C. § 1503 by shooting a government witness with a revolver because the witness had testified before a federal grand jury, and by the same assault attempting to intimidate and prevent the witness from testifying at trial in a subsequent federal prosecution. Petitioner was also convicted under Count IV of the indictment which charged him with conspiracy to obstruct justice in violation of 18 U.S.C. § 371.

Felix Ferina, a co-defendant of petitioner, was convicted under the same counts of the indictment, being charged along with petitioner and others under the conspiracy count.

Petitioner and his co-defendant Ferina were each sentenced to serve five years on substantive Counts I and II, the sentences to run concurrently, and under Count IV, the conspiracy charge, sentenced to serve a term of five years to run consecutively with the sentences imposed under Counts I and II.

This court affirmed the convictions of petitioner and Ferina. Ferina v. United States, 302 F.2d 95 (8th Cir. 1962), cert. denied sub nom. Cardarella v. United States, 371 U.S. 819, 83 S.Ct. 35, 9 L.Ed. 2d 59 (1963).

Petitioner contends here that the consecutive sentence imposed double punishment for a single offense and has attacked the validity of the sentence under Rule 35, Fed.R.Crim.P.

Petitioner's co-defendant Ferina has heretofore collaterally attacked his judgment of conviction under 28 U.S.C. § 2255 and Rule 35. Ferina there maintained, among other contentions, that he received illegal sentences inflicting double punishment for a single offense as a result of a duplicitous indictment claiming a merger of the conspiracy and substantive counts. Upon Ferina's appeal from an adverse ruling of the District Court upon his collateral attack, we affirmed the judgment of the District Court denying Ferina the relief sought. Ferina v. United States, 340 F.2d 837 (8th Cir. 1965).

It is petitioner's claim here that the consecutive sentences imposed...