Corey v. United States
| Decision Date | 18 September 1962 |
| Docket Number | No. 6046.,6046. |
| Citation | 307 F.2d 839 |
| Parties | Benjamin W. COREY, Defendant, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
W. Arthur Garrity, Jr., U. S. Atty., and Thomas P. O'Connor, Asst. U. S. Atty., for appellee on motion to dismiss and memorandum.
Before WOODBURY, Chief Judge, and HARTIGAN, Circuit Judge.
This is a motion by the United States to dismiss, as untimely, defendant-appellant's appeal from a judgment of conviction entered by the United States District Court for the District of Massachusetts.
Defendant was convicted as charged in the indictment of seventy-five offenses of making and presenting for payment to a department of the United States — the Department of the Army — false, fictitious and fraudulent claims in violation of 18 U.S.C. § 287. The maximum penalty for each offense is five years imprisonment or a fine of $10,000 or both.
On April 9, 1962, the district court entered a judgment of conviction against the defendant expressly noting that the judgment was entered pursuant to 18 U.S.C. § 4208(b). This statute empowers a court for a maximum period of six months to modify a defendant's sentence without being restricted to sixty days, as provided by Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C. Following the April 9 judgment, defendant was placed in the custody of the Attorney General and committed by him to the United States Penitentiary at Lewisburg, Pennsylvania.
Thereafter, on July 17, 1962, again pursuant to 18 U.S.C. § 4208(b), the district court entered an Order On Probation, suspending sentence and placing the defendant on probation for a term of two years.
Defendant took no appeal from the April 9 judgment but has appealed the Order On Probation entered July 17, 1962. The United States Attorney's position is that the judgment of April 9, 1962, under § 4208(b), was a final appealable judgment and that defendant's right of appeal has been lost by failure to give notice of appeal within ten days thereof.
The defendant contends that under the April 9 judgment However, the district court expressly noted that it was acting under the provisions of Title 18 U.S.C. § 4208(b). Under this section the statute clearly states that the term of "commitment shall be deemed to be...
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Corey v. United States
...the defendant was on notice as to the extent of his punishment. If he desired to appeal, this was the time that he should have acted.'3 307 F.2d 839, 840. We granted certiorari, 371 U.S. 966, 83 S.Ct. 550, 9 L.Ed.2d 537, to consider questions which have arisen in the District Courts and Cou......
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Behrens v. United States, 13756.
...of imprisonment pursuant to § 4208(b) is not required. We have also considered the construction placed on § 4208(b) in Corey v. United States, 1 Cir., 307 F.2d 839 and United States v. Behrens, 190 F.Supp. 799 (S.D., Ind.1961).3 But we are of the view that these cases rely too heavily on te......
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Dolack v. United States
...Court a Petition for a Writ of Certiorari in that case and until a decision by the Supreme Court in the case of Corey v. United States (1962), 1st Cir., 307 F.2d 839, as to which the Supreme Court has granted Certiorari. That case holds that the time for appeal starts to run upon the imposi......
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United States v. Behrens 8212
...district judge to impose the final sentence under § 4208(b) in the absence of petitioner and his counsel.2 In another case, Corey v. United States, 307 F.2d 839, the Court of Appeals for the First Circuit held that it was the original commitment under § 4208(b), not the fixing of the final ......