Foster v. United States, 7777.
| Citation | 339 F.2d 188 |
| Decision Date | 01 December 1964 |
| Docket Number | No. 7777.,7777. |
| Parties | Raymond Earl FOSTER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Arthur E. Otten, Jr., Denver, Colo., for appellant.
John W. Raley, Jr., Asst. U. S. Atty., (B. Andrew Potter, U. S. Atty., on the brief) for appellee.
Before PHILLIPS, PICKETT and SETH, Circuit Judges.
Foster was convicted after a trial by jury on each of eight counts of an indictment. On the second count he was sentenced to imprisonment for a term of 20 years. On each of the remaining seven counts he was sentenced to lesser terms. The several sentences were to run concurrently. He filed a motion under 28 U.S.C.A. § 2255 to vacate the sentences. However, he has served sufficient time to satisfy the sentences on all of the counts, except Count Two. From an order denying that motion, he has appealed.
The second count of the indictment charged:
"That on or about the 11th day of April, 1958, in the Western Judicial District of Oklahoma, the defendant Raymond Earl Foster aided or abetted in the transferring of, or transferred a quantity of marihuana, which, together with certain adulterants, weighed approximately 633 grains, said transfer not being in pursuance of a written order of the person to whom such marihuana was transferred on a form issued in blank for that purpose by the District Director of Internal Revenue; in violation of Section 4742(a), Title 26, U.S.C.A."
The motion was predicated on the ground that each of the several counts of the indictment does not state facts sufficient to constitute an offense against the United States.
On appeal it is urged that the indictment was so lacking in particularity that it was insufficient to inform him of the charge against him, so he could prepare his defense thereto and plead the judgment as a bar to a subsequent prosecution for the same offense.
Where the offense is defined by a Federal statute, of which the court wherein the defendant was tried and sentenced had jurisdiction, and the court had the jurisdiction of the person of the defendant, and the indictment manifestly endeavored to charge an offense under such statute, the sufficiency of the indictment is not subject to collateral attack by motion under § 2255, supra.1
Here, it is clear that Count Two of the indictment alleged each of the several elements of the offense defined in § 4742(a), supra; that the sentencing court had jurisdiction of the offense and of the person of the defendant; and that the indictment endeavored to charge an offense under that statute. Hence, the indictment was not subject to a collateral attack under § 2255, supra.
However, if the sufficiency of the indictment could be raised by the motion, the result would be the same. The main thrust of the argument here is that the indictment was so lacking in particularity that Foster could not plead it as a bar to a subsequent prosecution for the same offense.
It is clear from a reading of the indictment that it sought to charge in the alternative that Foster either aided and abetted another in the transfer, or he, himself, transferred a particular quantity of marihuana, not in pursuance of the written order of the person to whom such marihuana was transferred, and that only one transfer was involved. In other words, the indictment charged either aiding or abetting the transfer or the transferring of a single specific quantity of marihuana.
Moreover, a complete record of the criminal trial of Foster, including the...
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United States v. Anderson
...and as aider and abettor was valid even though there was no mention of a principal. A similar result was reached in Foster v. United States, 339 F.2d 188 (10th Cir. 1964), where the court noted that it made no difference to the defendant's knowledge of the crime alleged or to his ability to......
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