U.S. v. Kalish, s. 84-2595
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Citation | 780 F.2d 506 |
| Docket Number | Nos. 84-2595,84-2756,85-2064,s. 84-2595 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Steven Michael KALISH, Defendant-Appellant. (Two cases.) |
| Decision Date | 13 January 1986 |
Page 506
v.
Steven Michael KALISH, Defendant-Appellant. (Two cases.)
Fifth Circuit.
Page 507
DeGuerin & Dickson, Dick DeGuerin, Houston, Tex., for defendant-appellant.
Bob Wortham, U.S. Atty., Beaumont, Tex., Robert J. Erickson, Atty., Washington, D.C., Maury S. Epner, Atty., Appellate Section, Crim. Div., Dept. of Justice, Washington, D.C., Henry K. Oncken, U.S. Atty., James Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Eastern District of Texas.
Appeal from the United States District Court for the Southern District of Texas.
Before GEE and JOHNSON, Circuit Judges, and MENTZ *, District Judge.
GEE, Circuit Judge.
In December 1979 law enforcement authorities seized two small marijuana-laden vessels, the EL COBRE, a shrimp boat, and the MR. JAKE, an offshore oil platform supply boat, in Texas coastal waters. The former was seized on December 10, the latter on December 19. In connection with the seizure of the EL COBRE, Steven Kalish was charged with and tried in March 1980 for conspiracy to import marijuana in violation of 21 U.S.C. Sec. 963 and for conspiracy to possess marijuana with an intent to distribute in violation of 21 U.S.C. Sec. 846. Kalish was acquitted.
The next month (April 1980) Kalish was tried on the same charges, but these stemmed from the seizure of the MR. JAKE. In addition, Kalish was charged with and tried for the substantive offense of possession of marijuana with an intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). This time Kalish was found guilty on all three charges.
Kalish appealed, and we reversed his conviction on the two conspiracy charges from the MR. JAKE trial because these constituted double jeopardy in light of the earlier EL COBRE trial on identical charges. His conviction of the substantive offense was, however, expressly affirmed. United States v. Kalish, 690 F.2d 1144 (5th Cir.1982).
In June 1983, Kalish was indicted with several others for a smuggling transaction involving some 48,000 pounds of marijuana alleged to have taken place on December 3-4, 1979 near Jasper, Texas (the Jasper Farm episode). Count 5 of the indictment charged Kalish with possessing marijuana with an intent to distribute and with aiding and abetting such possession in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(6) and 18 U.S.C. Sec. 2, while Count 10 charged him with the importation of marijuana and with aiding and abetting such importation in violation of 21 U.S.C. Secs. 952 and 960(a)(1) and 18 U.S.C. Sec. 2. Kalish was also indicted on other charges, but those counts were dismissed in a plea bargain agreement.
As part of the plea bargain, Kalish pled guilty to Counts 5 and 10 of the indictment but reserved his right to appeal on double jeopardy and collateral estoppel grounds. That appeal is presently before us, as is Kalish's collateral attack via 28 U.S.C. Sec. 2255 on his substantive conviction from the MR. JAKE trial.
I. The Substantive Conviction From The MR. JAKE Trial
After we affirmed his substantive offense conviction from the MR. JAKE trial, Kalish attacked the judgment collaterally in the district court by way of 28 U.S.C. Sec. 2255, the federal habeas statute. The district court denied relief because the subject of his petition had been raised and
Page 508
disposed of in the original direct appeal to this Court.Kalish...
To continue reading
Request your trial
-
U.S. v. Cisneros, Civil No. B-02-191.
...See Moore v. United States, 598 F.2d 439 (5th Cir.1979); United States v. Johnson, 615 F.2d 1125 (5th Cir.1980); United States v. Kalish, 780 F.2d 506 (5th Cir.1986), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 660 (1986). The law of the case is not a jurisdictional rule, but a ......
-
Araromi v. United States, EP-13-CV-201
...Araromi, 477 F. App'x at 159. This Court has no power to reconsider the Fifth Circuit's ruling on this issue. See United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) ("It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of c......
-
Ricks v. United States, A-10-CA-352-LY
...of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions." See United States v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, 476 U.S. 1118 (1986). Because all of the above-claims were already considered and rejected by the Fifth Circuit, th......
-
Wickersham v. U.S., Civ. A. No. 1:95cv1046.
...was raised and disposed of on direct appeal. If so, the matter cannot be relitigated by collateral attack. United States v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 660 (1986). If not, courts inquire why, and still refuse to entertain the......