U.S. v. Pearson, 81-7085

• Decision Date: 01 September 1981
• Docket Number: No. 81-7085,81-7085
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mose Franklin PEARSON, Defendant-Appellant. Summary Calendar. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 569

655 F.2d 569

UNITED STATES of America, Plaintiff-Appellee, v. Mose Franklin PEARSON, Defendant-Appellant.

No. 81-7085

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit B

Sept. 1, 1981.

Carl Ziemba, Detroit, Mich., for defendant-appellant.

Holly Wiseman, Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, and KRAVITCH and HATCHETT, Circuit Judges.

PER CURIAM:

Mose Franklin Pearson brings this habeas corpus action pursuant to 28 U.S.C. § 2255 challenging his conviction on one count of conspiring to import heroin into the United States and on two counts of importing heroin into the United States. He alleges deprivation of his fifth amendment right not to be punished twice for the same act and deprivation of his right to a fair trial. Because precedent is squarely against Pearson's contentions, we affirm the denial of his motion to vacate sentence.

Pearson was charged in Count I of a three-count indictment with conspiring to: (a) import heroin into the United States in violation of 21 U.S.C. § 952(a); (b) use the mails to import heroin in violation of 21 U.S.C. § 843(b); and (c) unlawfully distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 841(a). In Counts II and III, Pearson and Sonny Murray were charged with importing heroin into the United States on two different occasions, "aided and abetted each by the other." At the conclusion of the government's case, the district court granted the government's motion to dismiss Murray as a defendant because of insufficient evidence. The jury returned a verdict against Pearson on all three counts. The conviction was affirmed by this court in United States v. King, 517 F.2d 350 (5th Cir. 1975), cert. denied, 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980). Pearson filed a motion in the district court pursuant to 28 U.S.C. § 2255 to vacate his sentence. The district court denied the motion, and this appeal followed.

Pearson contends that he was placed in double-jeopardy in violation of his fifth amendment rights because the same evidence was used to convict him of conspiracy to import heroin and of importing heroin, and because he received consecutive sentences after conviction on all counts. Pearson urges this court to adopt the Sixth Circuit ruling in United States v. Austin, 529 F.2d 559 (6th Cir. 1976), which held, "(I)t is clear that the Fifth Amendment comes into play to prohibit double punishments where the substantive and conspiracy counts of an indictment charge essentially the same offense." Austin at 562. The Fifth Circuit, however, has expressly rejected the holding in Austin. United States v. Cowart, 595 F.2d 1023 (5th Cir. 1979). This court stated in Cowart that the fact that most of the evidence served "double duty" in proving the elements of the crime of conspiracy and the crime of aiding and abetting is of no consequence. This panel is bound by precedent set by prior Fifth Circuit decisions. Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir. 1981). We therefore reject Pearson's claim that he was unconstitutionally placed in double-jeopardy.

Pearson next complains of his conviction on two counts of importing heroin into the United States. The government charged him both as a principal and as an aider and abettor in this activity. Pearson alleges a denial of a fair trial because the co-defendant whom he allegedly aided and abetted was dismissed as a defendant due to...