Doherty v. United States, No. 4351.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBRATTON, MURRAH and PICKETT, Circuit
Citation193 F.2d 487
Decision Date14 December 1951
Docket NumberNo. 4351.
PartiesDOHERTY v. UNITED STATES.

193 F.2d 487 (1951)

DOHERTY
v.
UNITED STATES.

No. 4351.

United States Court of Appeals Tenth Circuit.

December 14, 1951.


Edward Joseph Doherty, pro se, on the brief for appellant.

193 F.2d 488

Scott M. Matheson, U. S. Atty., and Bryant H. Croft, Asst. U. S. Atty., Salt Lake City, Utah, were on the brief for appellee.

Before BRATTON, MURRAH and PICKETT, Circuit Judges.

BRATTON, Circuit Judge.

The indictment in this case contained four counts. The first count charged that appellant, other named persons, and other persons not known, entered into a conspiracy to receive, conceal, store, barter, sell, and dispose of a described Oldsmobile, a described Lincoln, and a described Mercury automobile, knowing that such automobiles were moving in interstate commerce, and knowing that they had been stolen; and the count pleaded certain overt acts in furtherance of the conspiracy, including the receiving, storing and concealing of such automobiles. The second count charged that appellant and another named person received, concealed, stored, bartered, sold, and disposed of the Oldsmobile which was moving in interstate commerce, knowing that it had been stolen; the third count charged a like substantive offense in respect to the Lincoln; and the fourth count charged a similar substantive offense in respect to the Mercury automobile. Appellant was found guilty on all counts. He was sentenced to imprisonment for five years on each count, with provision that the sentences on the first and second counts should run consecutively and that the sentences on the third and fourth should run concurrently with that on the first count; and a fine of $5,000 was imposed under the second count. A motion was filed under Title 28, Section 2255, United States Code, for the correction or reduction of the judgment and sentences. The motion was denied and this appeal was perfected from that action.

The action of the court in denying the motion to vacate is challenged on the ground that the second, third, and fourth counts in the indictment each charged an offense which was included in the offense laid in the first count; that the sentences imposed under the first and second counts to run consecutively exceeded the maximum punishment authorized by law; and that such sentences amounted to double punishment for a single offense. But the contention is without merit. It is well settled that the formation of a conspiracy to commit a substantive offense and the commission of the...

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10 practice notes
  • United States v. Jacobs, No. 30019.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 28, 1972
    ...States, 5 Cir., 249 F.2d 539, 541; Woods v. United States, 99 U.S.App. D.C. 351, 240 F.2d 37, 40; Doherty v. United States, 10 Cir., 193 F.2d 487, 488; Sneed v. United States, 5 Cir., 298 F. 911, 913; Carbo v. United States, 9 Cir., 314 F.2d 718, 12 Beitel v. United States, 5 Cir., 306 F.2d......
  • Nolan v. United States, No. 9730.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 16, 1970
    ...the identity of offenses is "whether each count requires proof of a fact or element not required by the other." Doherty v. United States, 193 F.2d 487 (10th Cir. 1951). The test does not turn on the identity of evidence actually produced on both counts, but on whether the same evidence is r......
  • U.S. v. Genser, No. 82-2458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1983
    ...United States, 423 F.2d 1031, 1048 (10th Cir.), cert. denied, 400 U.S. 848, 91 S.Ct. 47, 27 L.Ed.2d 85 (1970); Doherty v. United States, 193 F.2d 487, 488 (10th Cir.1951)). See Bell v. Kansas, 452 F.2d 783 (10th Cir.1971), cert. denied, 406 U.S. 974, 92 S.Ct. 2421, 32 L.Ed.2d 674 (1972). Th......
  • Calvaresi v. United States, No. 4833-4848.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 16, 1954
    ...66 S.Ct. 1180, 90 L.Ed. 1489; United States v. Rabinowich, 238 U.S. 78, 35 S. Ct. 682, 59 L.Ed. 1211; Doherty v. United States, 10 Cir., 193 F.2d 487; Upshaw v. United States, 10 Cir., 157 F.2d 716; Robinson v. United States, 10 Cir., 143 F.2d 276. 8 United States v. Russell, 255 U.S. 138, ......
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10 cases
  • United States v. Jacobs, No. 30019.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 28, 1972
    ...States, 5 Cir., 249 F.2d 539, 541; Woods v. United States, 99 U.S.App. D.C. 351, 240 F.2d 37, 40; Doherty v. United States, 10 Cir., 193 F.2d 487, 488; Sneed v. United States, 5 Cir., 298 F. 911, 913; Carbo v. United States, 9 Cir., 314 F.2d 718, 12 Beitel v. United States, 5 Cir., 306 F.2d......
  • Nolan v. United States, No. 9730.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 16, 1970
    ...the identity of offenses is "whether each count requires proof of a fact or element not required by the other." Doherty v. United States, 193 F.2d 487 (10th Cir. 1951). The test does not turn on the identity of evidence actually produced on both counts, but on whether the same evidence is r......
  • U.S. v. Genser, No. 82-2458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1983
    ...United States, 423 F.2d 1031, 1048 (10th Cir.), cert. denied, 400 U.S. 848, 91 S.Ct. 47, 27 L.Ed.2d 85 (1970); Doherty v. United States, 193 F.2d 487, 488 (10th Cir.1951)). See Bell v. Kansas, 452 F.2d 783 (10th Cir.1971), cert. denied, 406 U.S. 974, 92 S.Ct. 2421, 32 L.Ed.2d 674 (1972). Th......
  • Calvaresi v. United States, No. 4833-4848.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 16, 1954
    ...66 S.Ct. 1180, 90 L.Ed. 1489; United States v. Rabinowich, 238 U.S. 78, 35 S. Ct. 682, 59 L.Ed. 1211; Doherty v. United States, 10 Cir., 193 F.2d 487; Upshaw v. United States, 10 Cir., 157 F.2d 716; Robinson v. United States, 10 Cir., 143 F.2d 276. 8 United States v. Russell, 255 U.S. 138, ......
  • Request a trial to view additional results

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