Raymond Casias v. United States, 331 F.2d 570, 10th Cir. (1964)
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Scribd Government DocsRaymond Casias v. United States, 331 F.2d 570, 10th Cir. (1964)
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Scribd Government Docs331 F.
2d 570
Raymond CASIAS, Appellant,
v.
UNITED STATES of America, Appellee.
No. 7572.
United States Court of Appeals Tenth Circuit.
April 27, 1964.
William D. Swenson, Denver, Colo., for appellant.
Arthur L. Fine, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., was
with him on the brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit
Judges.
LEWIS, Circuit Judge.
This is an appeal from an order of the District Court for the District of
Colorado denying defendant's motion for relief under 28 U.S.C. 2255. A
history of the prosecution is pertinent to the present appeal.
In 1961, defendant was convicted upon two counts of an indictment charging
him with the receipt, concealment and sale of narcotic drugs unlawfully
imported in violation of 21 U.S.C. 174. The judgments of conviction were
appealed to this court and we reversed for error committed during the course of
the trial. Casias v. United States, 10 Cir., 302 F.2d 513. After remand, the case
was set for re-trial on July 13, 1962. On such date, defendant appeared with his
counsel and informed the court that he was willing to waive indictment and
plead guilty to the charge contained in an information alleging that he had
unlawfuly sold, dispensed and distributed a quantity of narcotics in violation of
26 U.S.C. 4704(a). Upon entering such a plea, the United States Attorney
indicated his intention to dismiss the indictment charging violations of 21
U.S.C. 174. The court accepted the plea of guilty to the information and
granted the motion to dismiss the indictment. Defendant now asserts that the
information to which he pleaded guilty is inadequate to protect him against
double jeopardy and thus void and subject to attack under 28 U.S.C. 2255.1
Emphasis is placed upon the fact that the information does not contain the
name of the purchaser of the narcotics.
3
The name of the purchaser is not an element of an offense charged under 26
U.S.C. 4704(a) and an indictment or information not setting forth the name is
not constitutionally defective for such lack and subject to collateral attack. 2 Nor
need an indictment or information plead an offense in such detail as to be selfsufficient as a bar to further prosecution for the same offense. The judgment
constitutes the bar. Martin v. United States, 10 Cir., 285 F.2d 150. And the
extent of the judgment may be determined from an examination of the record as
a whole, Clay v. United States, 10 Cir., 326 F.2d 196; Hester v. United States,
10 Cir., (dec. January 1964) or, indeed, proved by any other competent means.
Cf. McDowell v. United States, 10 Cir., 330 F.2d 920.
In the case at bar the record clearly indicates that appellant's plea of guilty to
the information is an outgrowth of and contained within the unlawful conduct
detailed at his earlier trial. Appellant is in an unusually favorable position to
prove the exact nature of his present judgment should that need ever arise.
The judgment is affirmed.
Notes:
1
The information alleged: "That on or about October 27, 1960, in the City and
County of Denver, in the State and District of Colorado, RAY CASIAS, also
known as Richard, did unlawfully sell, dispense and distribute a quantity of a
narcotic drug, to-wit: 320 milligrams of heroin, not in or from the original
stamped package, in violation of 26 USC 4704(a)."
To the extent, if any, that this statement conflicts with the views expressed by
the Seventh Circuit in Lauer v. United States, 320 F.2d 187, we respectfully
refuse to follow Lauer as did the Eighth Circuit similarly refuse in Jackson v.
United States, 325 F.2d 477. See also, Robison v. United States, 9 Cir., 329
F.2d 156
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