Flores v. United States, 7780.
| Decision Date | 01 December 1964 |
| Docket Number | No. 7780.,7780. |
| Citation | 338 F.2d 966 |
| Parties | Visente M. FLORES, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John W. McKendree, Denver, Colo., for appellant.
John W. Raley, Jr., Asst. U. S. Atty., Oklahoma City, Okl. (B. Andrew Potter, U. S. Atty., Oklahoma City, Okl., was with him on the brief), for appellee.
Before MURRAH, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.
Appellant was charged, tried and convicted by a jury upon each of nine counts of an indictment charging a conspiracy to violate and substantive violations of the federal narcotic laws. 18 U.S.C. § 371; 21 U.S.C. § 176a; 26 U.S.C. § 4744 (a) (1); 26 U.S.C. § 4744(a) (2); 26 U.S.C. § 4742(a); 26 U.S.C. § 4755(a). By motion filed under 28 U.S.C. § 2255 he now seeks to vacate the judgment and sentence imposed upon each substantive count alleging that the indictment for such counts was fatally defective in such varying respects as: failing to apprise him sufficiently of the charge; denying him the protection of a grand jury indictment; failing to name the transferee under 26 U.S.C. § 4742(a); failing to name with certainty the place of the alleged offenses; failing to protect him against the possibility of double jeopardy.
We find no merit to appellant's contentions. Each substantive count of the indictment alleges the essential elements of the charged offense with certainty and is sufficient to inform appellant of the nature of the offense charged. Smith v. United States, 10 Cir., 273 F. 2d 462; Wood v. United States, 10 Cir., 317 F.2d 736. And where, as here, the attack upon the indictment is made collaterally, the judgment must stand if the indictment is sufficient to meet constitutional requirements. See Charley v. United States, 10 Cir., 303 F.2d 512. An indictment alleging the commission of the offense within the jurisdiction of the trial court meets the required certainty of place of commission. Butler v. United States, 10 Cir., 197 F.2d 561. So, too, is an indictment sufficient that does not name the transferee when charging a violation of applicable narcotic laws. McDowell v. United States, 10 Cir., 330 F.2d 920; Casias v. United States, 10 Cir., 331 F.2d 570.
The test of the sufficiency of an indictment is not determined by whether the indictment alone will protect the accused against the possibility of double jeopardy. The judgment of conviction or acquittal is the bar to further prosecutio...
To continue reading
Request your trial
-
United States v. Baker
...counts before the case went to the jury. 36 Beard v. United States, 65 App.D.C. 231, 82 F.2d 837 (1936). And see Flores v. United States, 338 F.2d 966 (10th Cir. 1964). 37 Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927). 38 United States v. Bentvena, 193 F.Supp. 48......
-
U.S. v. Neal
...of the charge and the evidence before the grand jury are further revealed by Counts II and III of the indictment. See Flores v. United States, 338 F.2d 966, 967 (10th Cir.). 5 They charged possession of an incendiary device in Pottawatomie County in the Western District of Oklahoma on or ab......
-
U.S. v. Arteaga-Limones
...United States v. Powell, 498 F.2d 890 (9th Cir.), cert. denied,419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974); Flores v. United States,338 F.2d 966 (10th Cir. 1964); 1 C. Wright, Federal Practice & Procedure § 125 (1969). 3 It would not advance the policies of the Federal Rules of Crimin......
-
Kienlen v. United States, 9104.
...of both 2113(a) and (d). It is entirely sufficient to inform the accused of the nature of the offenses charged. See Flores v. United States, 10 Cir., 338 F.2d 966. And, moreover, while the sentence for violation of the various offenses described in 2113 may not be pyramided, i. e. see Princ......