HARRY FLEISHER ET AL.
v.
UNITED STATES
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Defendants were convicted of conspiracy to possess unregistered stills in violation of federal revenue laws, but the Supreme Court reversed the conviction on the first count because the indictment failed to properly allege the offense—it charged failure to register with the Collector of Internal Revenue when the law required registration with the District Supervisor of the Alcohol Tax Unit. The Court also remanded for resentencing on the remaining counts since their sentences were improperly made dependent on the invalid first count.
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Per Curiam.
Judgments of conviction on four counts of an indictment charging conspiracies to violate provisions of the internal revenue laws were affirmed by the Circuit Court of Appeals. 91 F. (2d) 404. Certiorari was granted, limited to the question whether the first count of the indictment states an offense under federal law.
The first count alleged that defendants from October 1, 1934, to the date of the indictment, October 30, 1935, unlawfully conspired to possess, and cause to be possessed, stills and apparatus for the production of distilled spirits without having the same registered with the Collector of Internal Revenue as required by law. The Government concedes that under the applicable law the charge should have been that there was failure to register the stills with the District Supervisor of the Alcohol Tax Unit in the Bureau of Internal Revenue. The first count failed to state an offense. Act of March 3, 1927, c. 348, 44 Stat. 1381; 5 U. S. C. 281 c; Prohibition Reorganization Act of May 27, 1930, c. 342, 46 Stat. 427; Regulations No. 3, Bureau of Industrial Alcohol, Treasury Department (March 24, 1931), Article 14; Act of March 3, 1933, c. 212, § 16, 47 Stat. 1518; Executive Order No. 6639, March 10, 1934, 5 U. S. C. 132 note; Treasury Decision No. 4432, May 10, 1934. Scott v. United States, 78 F. (2d) 791; Benton v. United States, 80 F. (2d) 162.
The sentence upon count two provides that it shall run “from and after expiration of term of imprisonment imposed on count one.” Each of the sentences on the remaining counts runs from the expiration of the term of imprisonment imposed on the preceding count. In view of the invalidity of the sentence on count one, the sentences on the remaining counts should be amended so as to fix a definite date for their commencement.
The judgments on count one are severally reversed and the causes are remanded for further proceedings in conformity with this opinion.
Reversed.
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United States v. Silverman, 745 F.2d 1386 (11th Cir. 1984)…045, 8 L.Ed.2d 240 (1962). The accusation must be legally sufficient, i.e., it must assert facts which in law amount to an offense and which, if proved, would establish prima facie the accused’s commission of that offense. Fleisker v. United States, 302 U.S. 218, 58 S.Ct. 148, 82 L.Ed. 208 (1937); United States v. Haas, 583 F. 2d 216, 219 (5th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979).6 As Fed. R.Crim.P. 7(c) provides, an indictment must be a “plain, concise and definite wr…
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Cromer v. United States, 142 F.2d 697 (D.C. Cir. 1944)…, 1927; Treas. Dec. No. 2 (Narcotics) Part V, July 1, 1930; Act of Feb. 10, 1939, 53 Stat. 1, 26 U.S.C.A. Int.Rev.Code, §§ 2554(a), 2606; Treas. Dec. No. 4884, Feb. 11, 1939. Query whether the per curiam decision in Fleisher v. United States, 1937, 302 U.S. 218, 58 S.Ct. 148, 82 L.Ed. 208, [*699] limits the above well-settled rule. Despite the apparent applicability of the Berger case to the facts of the Eleisher case, the government confessed error in the latter case, and no reasons given in that case ind…
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Pugliese v. United States, 353 F.2d 514 (1st Cir. 1965)…of a subsequent sentence, but only the commencement date. Blitz v. United States, 1894, 153 U.S. 308, 14 S.Ct. 924, 38 L.Ed. 725. In some cases it may be that an affirmative resetting of that date is called for. Cf. Fleisher v. United States, 1937, 302 U.S. 218, 58 S.Ct. 148, 82 L.Ed. 208. That, however, is the extent. Cf. United States v. Tuffanelli, 7 Cir., 1943, 138 F. 2d 981. The government makes an alternative contention, based upon a power of the district court to revise sentences generally, Vincen…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fleisher v. United States, 91 F.2d 404 (6th Cir. 1937)
- Benton v. United States, 80 F.2d 162 (4th Cir. 1935)
- Scott v. United States, 78 F.2d 791 (10th Cir. 1935)