Pellom v. United States

¶4PER CURIAM

¶5Defendant Pellom has appealed from final order denying his 28 U.S.C.A. § 2255 motion to vacate sentence.1 The present motion filed November 22, 1963, is defendant’s fourth motion collaterally attacking his conviction.2

¶6The present motion attacks the convie-tjon upon different grounds than urged in the prior motions. After considering the present motion on its merits, the court determined that the defendant was entitled to no relief under either Rule 35 or 28 U.S.C.A. § 2255 and denied the motion, This appeal followed,

¶7Defendant, represented by counsel of his own choosing, entered a voluntary piea of guilty to counts two to seveil) inclusive, of an indictment against him. Count one was dismissed. His plea of guilty was accepted by the court. On May 2o, 1955, defendant was sentenced to a term of five years upon each of the six counts upon which he stood convicted, the sentences to run consecutively. He took no appeal. Defendant here makes no at-ta<* upon f118 conviction and sentence with respect to counts four and seven of the indictment and hence no discussion of suc coun 8 18 re<luired-

¶8Defendant attacks his conviction on counts three and six, which charged sales of narcotics in violation of 26 U.S.C.A. § 4705(a), upon the grounds that such counts are fatally defective in that they failed to name the purchaser of the narcotics. Section 4705(a) reads:

“General requirement. — It shall be unlawful for any person to sell, barter, exchange, or give away narcotic d™FS except in pursuance of a written order of the person to whom such article is sold, bartered, ex-,____, . . ! , changed, or given, on a form to be . ,, , , issued m blank for that purpose by the Secretary or his dele2'ate-”

¶9We have repeatedly held that the failure to name the purchaser of narcotics in an indictment is not a fatal defect vulnerable to a § 2255 attack. Taylor v. *768United States, 8 Cir., 332 F.2d 918; Adams v. United States, 8 Cir., 333 F.2d 766; Jackson v. United States, 8 Cir., 325 F.2d 477.

¶10Defendant further contends that counts three and six are fatally defective in that they fail to state after the word “Secretary” the additional words of the statute above quoted “or his delegate.” The trial court rejected such contention, stating:

“The failure to include ‘or his delegate’ is not fatal. The elements of the offense are set out in the indictment and the failure to include ‘or his delegate’ where it is set out that the sale was not made in pursuance of a written order on the form provided by the Secretary of the Treasury does not render the indictment defective.”

¶11We fully agree. Any form issued by an authorized delegate of the Seerétary of the Treasury could properly be considered a form used by the Secretary.

¶12With respect to counts two and five, the defendant contends such counts are fatally defective because they contain no allegation that the drugs were illegally imported into the United States. Each of said counts charges that the defendant did “unlawfully, wilfully, knowingly and fraudulently facilitate the transportation, concealment and sale of a narcotic drug [drug described], knowing the same to have been imported into the United States of America contrary to law, in violation of Section 174, Title 21, United States Code.”

¶13We agree with the trial court’s ■determination that the indictment adequately charges the drugs were illegally imported. In United States v. Glass, 7 Cir., 277 F.2d 566, 568, an indictment .substantially similar to the one before us is set out. The court, in rejecting ■defendant’s contention that the indictment failed to charge unlawful transportation, states:

“As the Court said in Brown v. United States, 9 Cir., 1955, 222 F.2d 293, 296:

“ ‘In logic it would appear that if defendants knew the drugs were imported contrary to law, the fact that they actually were imported contrary to law is inherent therein.’ ”

¶14The trial court properly denied defendant’s motion.

¶15Affirmed.