Fleish v. Johnston
| Decision Date | 05 February 1945 |
| Docket Number | No. 10672.,10672. |
| Citation | 145 F.2d 16 |
| Parties | FLEISH v. JOHNSTON, Warden. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Bennett King, of San Francisco, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and Joseph Karesh, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Before MATHEWS, STEPHENS and HEALY, Circuit Judges.
Writ of Certiorari Denied February 5, 1945. See 65 S.Ct. 587.
On the ground that he had already served the authorized portion of his sentence of imprisonment, Louis Fleish petitioned the district court for a writ of habeas corpus, which was denied. He appeals.
Appellant was originally tried and convicted under six counts of an indictment charging violations of the National Firearms Act, 26 U.S.C.A. §§ 1132-1132q (1934 Ed.) 26 U.S.C.A. Int.Rev.Code, §§ 2700 (b)(2), 2720 et seq., 3260 et seq.. On April 7, 1939, he was sentenced to be imprisoned for consecutive terms of five years on each of the six counts and to pay a fine of $2,000. Having served his sentence for one count, appellant requests his release from imprisonment.
Count One of the indictment under which sentence was pronounced charged that appellant had received and possessed a described firearm on which the transfer tax had not been paid. Count Three charged that he possessed the same described firearm without registering it. Counts Twelve, Fifteen, Eighteen, and Twenty-one contained the same charge as Count Three except that firearms were variously described in each. All counts designated the same time and place for the occurrence of the alleged offenses.
Appellant claims that the trial court had no jurisdiction to impose more than one sentence under the indictment since the National Firearms Act created but one punishable offense and since the six counts charged but one offense.
The first contention is based on the section of the National Firearms Act fixing the penalty of a $2000 fine or five years' imprisonment, or both, upon "any person who violates or fails to comply with any of the requirements" of the Act, 26 U.S.C. A. § 1132m (1934 Ed.) 26 U.S.C.A. Int. Rev.Code, § 2729. Appellant insists that this penalty provision is the key to the Act with respect to the problem herein involved, that the words "any of the requirements" can mean only "one or more of the requirements," and that therefore only a single punishment is authorized by the statute irrespective of how many sections were violated by a single event. Identical phraseology was held not to impose a single punishment in Blockburger v. United States, 284 U.S. 299, 305, 52 S.Ct. 180, 76 L.Ed. 306.
The claim that all six counts in the indictment charge one crime is unfounded. The offense alleged in Count One is distinct from that alleged...
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United States v. Clements
...requirement. 2 Superficially, some prior decisions of this court appear to be to the contrary, but they are not: Fleish v. Johnston (9th Cir. 1944) 145 F.2d 16, cert. denied (1945), 324 U.S. 840, 65 S.Ct. 587, 89 L.Ed. 1402; Crapo v. Johnston (9th Cir. 1944) 144 F.2d 863, cert. denied, 323 ......
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Waters v. United States
...makes possession of a firearm, defined in § 5848(1), illegal for non-compliance with any of the enumerated sections. See: Fleish v. Johnston (9 CA), 145 F. 2d 16; Montgomery v. United States (4 CA), 146 F.2d 142; and United States v. Hardgrave (7 CA), 214 F.2d 673. Cf. Mares v. United State......
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Sipes v. United States
...673 (7 Cir. 1954); Crapo v. Johnston, 144 F.2d 863 (9 Cir.1944), cert. denied 323 U.S. 785, 65 S.Ct. 267, 89 L.Ed. 626; Fleish v. Johnston, 145 F.2d 16 (9 Cir.1944), cert. denied 324 U.S. 840, 65 S.Ct. 587, 89 L.Ed. 1402; Montgomery v. United States, 146 F.2d 142 (4 Cir.1944). Cf. Blockburg......
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Wright v. United States, 13024.
...and possessing a firearm which has not been transferred on the statutory forms are separate and distinct offenses. Cf. Fleish v. Johnston, 9 Cir., 145 F.2d 16. Where a statute defines several separate offenses a mere reference to the statute in the indictment does not fulfill the requiremen......