406 F.2d 348
UNITED STATES of America, Plaintiff-Appellee,
G. Troy ELLINGTON, Defendant-Appellant.
United States Court of Appeals Fifth Circuit.
Jan. 23, 1969.
Robert B. Thompson, Gainesville, Ga., for appellant.
Charles L. Goodson, U.S. Atty., Charles B. Lewis, Jr., Asst. U.S. Atty., Atlanta, Ga., for appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
Pursuant to Rule 18 of the Rules of the Court, this case has been placed on the summary calendar for disposition without oral argument.
Appellant has been convicted on two counts of possession and sale of unstamped distilled spirits in violation of 26 U.S.C.A. 5205(a)(2) and 5604(a)(1).
Only two questions are raised for review. The indictment is claimed to have been insufficient. This point was not raised in appellant's motion to dismiss the indictment, and in any event it is wholly without merit.
It is asserted that the statutes under which appellant was convicted are unconstitutional under Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923. This issue already has been decided in this Circuit adversely to appellant's contentions. Brown v. United States, 5 Cir. 1968, 401 F.2d 769; Shoffeitt v. United States, 5 Cir. 1968, 403 F.2d 991.
(a) Whenever the court, sua sponte or on suggestion of a party, concludes that a case is of such character as not to justify oral argument, the case may be placed on the summary calendar.
(b) A separate summary calendar will be maintained for those cases to be considered without oral argument. Cases will be placed on the summary calendar by the clerk, pursuant to directions from the court.
(c) Notice in writing shall be given to the parties or their counsel of the transfer of the case to the summary calendar.