427 F2d 149 United States v. Jenkins

427 F.2d 149

UNITED STATES of America, Appellee,
v.
Robert Bryant JENKINS and Orvilla Jenkins, Appellants.

No. 155.

Docket 33742.

United States Court of Appeals, Second Circuit.

Submitted May 8, 1970.

Decided May 14, 1970.

Whitney North Seymour, Jr., U. S. Atty., for the Southern District of New York, Kevin J. McInerney and Paul B. Galvani, Asst. U. S. Attys., for appellee.

Robert Bryant Jenkins and Orvilla Jenkins, pro se.

Before LUMBARD, Chief Judge, WATERMAN, Circuit Judge, and JAMESON,* District Judge.

PER CURIAM.

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1

Robert and Orvilla Jenkins appeal from an order of the Southern District denying their motions to vacate the judgments and set aside their sentences under 28 U.S.C. § 2255 (1964), entered in 1965. Robert was convicted on one count of selling cocaine, 28 U.S.C. §§ 173, 174 (1964), one count of conspiracy to sell cocaine, and one count of selling cocaine without the proper order forms, 26 U.S.C. § 4705(a) (1964). Orvilla was convicted on three counts of selling, one conspiracy count, and one order form count. The defendants received the mandatory minimum five year sentences on each count, to be served concurrently; their direct appeal was dismissed in 1967 for want of prosecution.

2

In the light of Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the government concedes that the conspiracy and sale convictions cannot stand. In Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969), however, the Supreme Court upheld the constitutionality of the order form statute, and the government here argues that the Jenkins' conviction on these counts should not be set aside. We agree.

3

It appears from a perusal of the record that substantially all the proof offered on the invalid counts was also admissible on the order form count. Therefore no prejudice could have resulted from a trial of all the counts in the indictment. See United States v. Febre, 425 F.2d 107 (1970).

4

We order this action remanded to the district court for vacation of the judgments and setting aside the convictions of Robert and Orvilla Jenkins for selling cocaine and conspiring to sell cocaine. We affirm so much of the order appealed from as denied vacation of the order form convictions.

Notes:

*

Sitting by designation