MCDADE
v.
UNITED STATES
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The court held that the offenses charged in different counts of the information were distinct, and the sentence imposed was not invalid.
Appellant was charged in an information with offenses under Title 26 U.S.Code and Title 21 U.S.Code. The appellant claimed the sentence imposed under …
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PER CURIAM.
This appeal was heard on the record, briefs, and argument of counsel for respective parties;
And the Court being of the opinion that the offense described in Section 2553(a), Title 26 U.S.Code, which is charged in the second count of the Information, is a different offense from the offense described in Section 174, Title 21 U.S.C.A., which is charged in the third count of the Information, in that each requires proof of a fact which the other does not, Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489; Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Schmeller v. United States, 6 Cir., 143 F. 2d 544, 549;
And that the statutory presumption under each statute arising from the possession of the subject matter of the offense is a rule of evidence dealing with the proof of the offense rather than defining the offense; Corollo v. Dutton, 5 Cir., 63 F. 2d 7, 8; United States v. Yee Fing, D.C. Mont., 222 F. 154, 155; United States v. Tom Yu, D.C.Mont., 1 F.Supp. 357, 358;
And that the sentence imposed under the third count of the Information is not invalid, as claimed by appellant; Silverman v. United States, 1 Cir., 59 F. 2d 636, 637; Corollo v. Dutton, supra; Bruno v. United States, 9 Cir., 164 F. 2d 693; Copperthwaite v. United States, 6 Cir., 37 F. 2d 846;
It is ordered that the judgment of the District Court be affirmed.
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Citator
Cited By
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Russell v. United States, 306 F.2d 402 (9th Cir. 1962)
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Newman v. United States, 212 F.2d 450 (6th Cir. 1954)
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Beacham v. United States, 218 F.2d 528 (10th Cir. 1955)
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Gavieres v. United States, 220 U.S. 338 (U.S. 1911)
- Schmeller v. United States (three cases), 143 F.2d 544 (6th Cir. 1944)
- Copperthwaite v. United States, 37 F.2d 846 (6th Cir. 1930)
- Corollo v. Dutton, 63 F.2d 7 (5th Cir. 1933)
- Silverman v. United States, 59 F.2d 636 (1st Cir. 1932)
- Bruno v. United States, 164 F.2d 693 (9th Cir. 1947)