324 F2d 232 Lavell v. United States
324 F.2d 232
Gerald Layton LAVELL, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Ninth Circuit.
Nov. 5, 1963.
James W. Stewart, San Jose, Cal., for appellant.
Sidney I. Lezak, U.S. Atty., and William B. Borgeson, Asst. U.S. Atty., Portland, Or., for appellee.
Before CHAMBERS, POPE and MERRILL, Circuit Judges.
The judgment is vacated for the reason that it incorrectly states the offenses for which Lavell was convicted. The indictment and the jury verdict clearly indicate that defendant was convicted under one conspiracy count and under one substantive count; not two conspiracy counts.
We find the trial court did not abuse its discretion in refusing to grant a continuance and that its remarks during the course of the trial were not prejudicial to appellant.
The sentence as to count one (upon which the evidence must be admitted to be adequate) is clearly above the limit permitted by 18 U.S.C. 371. We do not reach the question of adequacy of the evidence on count three. Normally, under Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, if the concurrent sentences were within permissible limits, one good count would result in affirmance.
Upon resentencing, the court can eliminate the objection that defendant was not expressly offered new counsel. At this time, we do not pass on the point.
We cannot agree with appellant that a new trial is required.
The case is remanded to the district court.