291 F2d 395 Mende v. United States

291 F.2d 395

Milton MENDE, Appellant,
UNITED STATES of America, Appellee.

No. 17363.

United States Court of Appeals Ninth Circuit.

June 16, 1961.

Thomas T. Johnson, Los Angeles, Cal., for appellant.

Francis C. Whelan, U.S. Atty., Thomas R. Sheridan, Asst. U.S. Atty., Chief, Criminal Div., David Y. Smith, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, JERTBERG and KOELSCH, Circuit Judges.


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On September 26, 1960, we affirmed the judgment of Mende's conviction. Mende v. United States, 9 Cir., 282 F.2d 881.


With prison facing him, Mende has obtained new counsel who has made below a collateral attack on the judgment, claiming the indictment was so fatally defective that the trial court did not have jurisdiction to try him. The trial court rejected it.


The government makes a number of suggestions as to why Mende had no standing below or here to now be heard. But in our opinions its objections do not go to the naked right of a court to hear the collateral attack. Therefore, we consider the attack on its merits.


Under critical examination, the indictment could be improved. But the whole point defendant-appellant makes, could have been taken care of by proffering a precautionary instruction. Such was not done. We hold the indictment was not so fatally defective as to deprive the court of jurisdiction.


The order appealed from is affirmed.