342 F2d 813 Scott v. United States

342 F.2d 813

John SCOTT, Jr., Appellant,
v.
UNITED STATES of America.

No. 14976.

United States Court of Appeals Third Circuit.

Submitted Jan. 21, 1965.
Decided March 10, 1965.

John Scott, Jr., pro se.

Donald Horowitz, Asst. U.S. Atty., David M. Satz, Jr., U.S. Atty., Newark, N.J., for appellee.

Before McLAUGHLIN, FORMAN and GANEY, Circuit Judges.

PER CURIAM.

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1

The first count of the indictment before us charges a specific sale of heroin on a day certain at a particular place. It states the amount of heroin appellant allegedly sold. There were four additional counts to the indictment each of which charged successive separate offenses. Appellant was admittedly a convicted second offender under the federal narcotics law, 26 U.S.C. 7237(e) (2). He was represented by counsel and his plea of guilty to the first count was accepted by the court. Three and one half years after that he made this 2255 motion to set aside his conviction and sentence because the name of the person who purchased the first count heroin from him was not mentioned in the count. Chief Judge Madden in the district court in an exhaustive opinion, held that the case records 'conclusively show that the prisoner is entitled to no relief under his present petition.' We agree with that ruling. We mention in passing that if the purchaser's name had been of any importance it could have been promptly obtained by a demand for particulars or by motion to strike the count. We are familiar with Lauer v. United States, 320 F.2d 187 (7 Cir. 1963). That decision is in no way controlling in this appeal.

2

The judgment of the district court will be affirmed.