471 F2d 719 Sam Dipiazza v. United States of America

471 F.2d 719

Sam DiPIAZZA, Appellant,
UNITED STATES of America, Appellee.

No. 71-1992.

United States Court of Appeals,
Sixth Circuit.

Argued Oct. 9, 1972.
Decided Jan. 12, 1973.

Louis A. DiRosa, New Orleans, La., for appellant; Guy Johnson, New Orleans, La., on brief.

William W. Milligan, U. S. Atty., Byron E. Trapp, Asst. U. S. Atty., Cincinnati, Ohio, Robert J. Vedatsky, Dept. of Justice, Washington, D. C., for appellee; Henry E. Petersen, Asst. Atty. Gen., Sidney M. Glazer, Dept. of Justice, Washington, D. C., on brief.

Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and BRATCHER, District Judge.*


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Appellant was convicted in a jury trial in the Southern District of Ohio of seven counts of using interstate facilities to promote an illegal gambling enterprise and one count of conspiracy in violation of 18 U.S.C. Secs. 1952, and 371. The conviction was affirmed by this court. 415 F.2d 99 (1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1606, 29 L.Ed.2d 119 rehearing denied, 403 U.S. 924, 91 S.Ct. 2221, 29 L.Ed.2d 702 (1971).


Appellant then filed a motion to vacate sentence, 28 U.S.C. Sec. 2255, on the grounds that the District Judge's charge to the jury was incorrect. He appeals from the denial of this motion.


It is well settled in this circuit that a motion to vacate is not a proper substitute for appeal. Petro v. United States, 368 F.2d 807 (6th Cir. 1968); Hill v. United States, 223 F.2d 699, 701 (6th Cir.), cert. denied, 350 U.S. 867, 76 S.Ct. 113, 100 L.Ed. 768 (1955). Furthermore, jury instructions are not subject to attack under Sec. 2255. Hollbrook v. United States, 441 F.2d 371 (6th Cir. 1971).




Honorable Rhodes Bratcher, Judge, United States District Court for the Western District of Kentucky, sitting by designation