Marshall v. United States
| Decision Date | 13 March 1962 |
| Docket Number | No. 6880.,6880. |
| Citation | 299 F.2d 141 |
| Parties | Richard L. MARSHALL, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Albert B. Wolf, Denver, Colo., for appellant.
Jack R. Parr, Asst. U. S. Atty., Oklahoma City, Okl. (B. Andrew Potter, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee.
Before PICKETT, LEWIS and HILL, Circuit Judges.
Appellant was indicted on four counts. Count I charged the taking of mail from an authorized mail depository under 18 U.S.C.A. § 1702, Count II charged possession of the contents of a letter taken or stolen from a mail receptacle under 18 U.S.C.A. § 1708, Count III alleged the forging of a United States Treasury check under 18 U.S.C.A. § 495, and Count IV charged the uttering and publishing as true the United States Treasury check with intent to defraud under 18 U.S.C.A. § 495.
A plea of guilty was entered as to each of the last three Counts and Count I was dismissed on motion of the Government. A five year sentence was imposed on Count II, five year sentences were also imposed on the other two Counts, to run concurrently with each other but consecutively with the sentence on Count II.
The appeal is from an order overruling a motion under 28 U.S.C.A. § 2255, by which appellant contends in substance (1) Counts I and II charge the same offense and the dismissal of Count I invalidated Count II, and (2) the facts, as alleged in the indictment, show the commission of but one offense, therefore, only one five year sentence is valid.
Appellant's first point was considered by this Court in Creed v. United States, 10 Cir., 283 F.2d 646, where the same contention was made concerning the two offenses as charged in Counts I and II of this indictment. There, the Court, citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306, and Kinsella v. Looney, 10 Cir., 217 F.2d 445, reiterated the established test to be, In applying the test in that case, the Court concluded, "It is thus plain that each charged offense requires the proof of an element which the other does not, and therefore the...
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Waters v. United States
...L.Ed. 1153. And see: Beacham v. United States (10 CA), 218 F.2d 528; Rayborn v. United States, 234 F.2d 368 (6 CA); and Marshall v. United States (10 CA), 299 F.2d 141. Appellant asserts that the offense twice charged against him is illegal possession of the same firearm, as defined in § 58......
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