Castano v. United States, 13859.
| Decision Date | 19 February 1963 |
| Docket Number | No. 13859.,13859. |
| Parties | Daniel CASTANO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Daniel Castano, Leavenworth, Kan., William A. Clineburg, Chicago, Ill., for appellant.
James P. O'Brien, U. S. Atty., Paul D. Keller, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, John Powers Crowley, Asst. U. S. Attys., of counsel, for appellee.
Before DUFFY, SCHNACKENBERG and KNOCH, Circuit Judges.
Petitioner herein was convicted, after a jury trial in the United States District Court, Northern District of Illinois, Eastern Division, on a 2-count indictment charging: Count 1, a conspiracy to receive, conceal and facilitate the transportation and concealment after unlawful importation of fifty pounds of marihuana, and Count 2, defendant and others unlawfully and knowingly received and concealed approximately 350 milligrams of heroin after the same had been unlawfully imported into the United States, well knowing the same to be so unlawfully imported. The third overt act in Count 1 alleged petitioner and others, on a designated date, at Chicago, Illinois, "Had a conversation with JOSEPH ARPAIO; in violation of Section 176 (a), Title 21, United States Code, as amended by the Narcotics Control Act of 1956." Appellant was sentenced to serve six years imprisonment on each count, the sentences to run consecutively.
More than two years after the date of his conviction, petitioner filed in the court where he was tried and convicted, a motion under Section 2255 of Title 28 U.S.Code, to set aside and vacate the consecutive part of his sentence. Although the petition was filed by petitioner pro se, it was a formidable, well-prepared, typewritten document of twenty-four pages containing approximately 9,000 words. The principal issue raised by the petitioner was that the District Court had no jurisdiction or authority to impose consecutive sentences.
The District Court denied the petition to vacate, but granted petitioner's motion for leave to appeal in forma pauperis. This Court permitted him to proceed in forma pauperis, and the printing of the record on appeal and the printing of appellant's brief were waived. On motion, this Court appointed William A. Clineburg, Esq. of the Chicago Bar to prosecute this appeal. We thank Mr. Clineburg for the excellent service which he has rendered in this case as court-appointed counsel.
In McKee v. United States, 7 Cir., 289 F.2d 557 (1961), this Court held the power of a district court to impose consecutive sentences is inherent in the court, and was not abolished or changed by Title 18 U.S.Code § 3568. We adhere to that ruling.
Court-appointed counsel also raised the point that Count 1 did not properly charge conspiracy for the reason an overt act was not alleged with requisite clarity and particularity. Petitioner's counsel urges that an overt act is an essential element of the crime of conspiracy which must be alleged and proved; that it is something apart from the conspiracy and is to effect the object of the conspiracy; that the...
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