Gore v. United States, No. 13493.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBAZELON, FAHY and BASTIAN, Circuit
Citation100 US App. DC 315,244 F.2d 763
Decision Date25 April 1957
Docket NumberNo. 13493.
PartiesMcKinley E. GORE, Appellant, v. UNITED STATES of America, Appellee.

100 US App. DC 315, 244 F.2d 763 (1957)

McKinley E. GORE, Appellant,
v.
UNITED STATES of America, Appellee.

No. 13493.

United States Court of Appeals District of Columbia Circuit.

Argued January 28, 1957.

Decided April 25, 1957.


244 F.2d 764

Mr. McKinley E. Gore, appellant, filed a brief, pro se, and his case was treated as submitted thereon.

Mr. Forbes Blair, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Joel Blackwell, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, FAHY and BASTIAN, Circuit Judges.

BASTIAN, Circuit Judge.

Appellant (defendant) was tried and convicted under each count of a six-count indictment charging violations of 26 U.S.C. § 4705(a),1 26 U.S.C. § 4704(a)2 and 21 U.S.C.A. § 174.3 No appeal was taken; but some months later the defendant filed in the District Court a motion under § 2255 of Title 28, United

244 F.2d 765
States Code, to vacate, set aside or correct the sentences. The present appeal is from the denial of that motion

The offenses charged in the first three counts relate to a transaction involving the same twenty-five capsules of narcotics and on the same date, whereas the offenses charged in the last three counts relate to another thirty-five capsules of narcotics involved in a transaction on another date.

The trial court sentenced the defendant to imprisonment for from one to five years and imposed a fine of $500.00 on each of the first three counts, the sentences to run consecutively. On each of counts four, five and six, defendant was fined $500.00 and sentenced to imprisonment for from one to five years, these latter sentences to run concurrently with the sentences on the first three counts. All fines were suspended.

The authorities are unanimous that a defendant may be convicted and sentenced under each of several counts of an indictment if each count states a different offense. The test of whether separate offenses are charged is whether some different evidence is essential to each count, or whether each count is supported by the same evidence. We said recently in Kendrick v. United States, 1956, 99 U.S.App.D.C. 173, 238 F.2d 34:

"A single act which violates two statutes is punishable under both, unless the offenses defined therein are identical. The test of identity is whether the same evidence will sustain both charges. If one of the offenses requires an element of proof which the other does not, a conviction of one does not bar prosecution for the other." Id., 238 F.2d at page 36.

See also Blockburger v. United States, 1932, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.

When Congress enacted 26 U.S.C. §§ 4704(a) and 4705(a), and 21 U.S. C.A. § 174, it created three separate offenses. Each involves a different facet of the narcotics trade and each has different evidentiary requirements. This court and courts of a number of the other circuits, including the First, Fifth, Sixth, Seventh, Eighth and Ninth, have approved convictions and separate and consecutive sentences for violation of the same statutes involved here, or their predecessors, where each offense arose from one common transaction.4 And, as recently as January 2, 1956, the Third Circuit, in a well reasoned opinion by Judge Maris in United States v. Brisbane, 239 F.2d 859, a case identical to the present one, reached the same conclusion.

As in Brisbane, the defendant here further urges that, as he is a first offender, the sentences imposed on him violate the limits set by 26 U.S.C. § 7237 (a), popularly known as the Boggs Act. Since the defendant was sentenced to from three to fifteen years on his first conviction and the maximum sentence for a first offense, under the Boggs Act, is two to five years, his contention has a superficial appeal. However, defendant was tried, convicted and sentenced, not for one offense but for three, and his sentences do not exceed the maximum for first offenders on each count. So viewed, defendant's contention loses even its superficial appeal.

The Boggs Act, on which appellant bases his contention, was passed to deter the criminal who engages in illicit drug traffic and to increase the penalty

244 F.2d 766
for illegal traffic in drugs. See H.R. Rep. No. 635, 82d Cong., 1st Sess., June 21, 1951; S. Rep. No. 1051, 82d Cong., 1st Sess., Oct. 1, 1951; United States v. Brisbane, supra

It having been long and well established, as above stated, that each count of such an indictment as is here involved states a separate offense, we can uphold defendant's contention only by holding that the three counts must be considered as a single offense, thereby causing his sentence to exceed the maximum for first offenders. We cannot accept this reasoning when its effect would be to reduce sentences for...

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15 practice notes
  • Walker v. United States, No. 18254.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 21 Enero 1961
    ...just so long as it is valid as to any one of the counts. Estep v. U. S., 5 Cir., 223 F.2d 19, 21; Gore v. U. S., 100 U.S. App.D.C. 315, 244 F.2d 763, affirmed 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d Defendant's request for instruction No. 8 that the jury must be satisfied "to a moral certain......
  • Gore v. United States, No. 668
    • United States
    • United States Supreme Court
    • 30 Junio 1958
    ...counts a sentence as for only one count could be imposed. The motion was denied and the Court of Appeals affirmed, 100 U.S.App.D.C. 315, 244 F.2d 763, with expressions of doubt by two of the judges, who felt themselves bound by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.......
  • United States v. Jackson, No. 14942.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 8 Marzo 1965
    ...U.S. C.A., an offense separate and distinct from that proscribed by Section 174, 21 U.S.C.A. Gore v. United States, 100 U.S.App.D.C. 315, 244 F.2d 763, aff'd 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). The gravamen of the offense proscribed by Section 4705(a) is selling to a particu......
  • United States v. Daddano, No. 17283
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 2 Diciembre 1970
    ...1946), 155 F.2d 315, 318; Newman v. United States (6th Cir., 1954), 212 F.2d 450; Gore v. United States (1957), 100 U.S.App.D.C. 315, 244 F.2d 763; Dear Wing Jung v. United States (9th Cir., 1962), 321 F.2d 73, 75; United States v. Barnett (6th Cir., 1969), 418 F.2d 309,...
  • Request a trial to view additional results
15 cases
  • Walker v. United States, No. 18254.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 21 Enero 1961
    ...just so long as it is valid as to any one of the counts. Estep v. U. S., 5 Cir., 223 F.2d 19, 21; Gore v. U. S., 100 U.S. App.D.C. 315, 244 F.2d 763, affirmed 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d Defendant's request for instruction No. 8 that the jury must be satisfied "to a moral certain......
  • Gore v. United States, No. 668
    • United States
    • United States Supreme Court
    • 30 Junio 1958
    ...counts a sentence as for only one count could be imposed. The motion was denied and the Court of Appeals affirmed, 100 U.S.App.D.C. 315, 244 F.2d 763, with expressions of doubt by two of the judges, who felt themselves bound by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.......
  • United States v. Jackson, No. 14942.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 8 Marzo 1965
    ...U.S. C.A., an offense separate and distinct from that proscribed by Section 174, 21 U.S.C.A. Gore v. United States, 100 U.S.App.D.C. 315, 244 F.2d 763, aff'd 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). The gravamen of the offense proscribed by Section 4705(a) is selling to a particu......
  • United States v. Daddano, No. 17283
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 2 Diciembre 1970
    ...1946), 155 F.2d 315, 318; Newman v. United States (6th Cir., 1954), 212 F.2d 450; Gore v. United States (1957), 100 U.S.App.D.C. 315, 244 F.2d 763; Dear Wing Jung v. United States (9th Cir., 1962), 321 F.2d 73, 75; United States v. Barnett (6th Cir., 1969), 418 F.2d 309,...
  • Request a trial to view additional results

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