U.S. Court of Appeals for the Fifth Circuit, 1966

Robert Grene v. United States

U.S. Court of Appeals for the Fifth Circuit · Decided May 13, 1966 · Wisdom, Coleman, Hughes

360 F.2d 585; 1966 U.S. App. LEXIS 6162 (Federal Reporter, Second Series)

Counsel

B. Guerry Moore, Washington, D. C., for appellant., Lloyd G. Bates, Jr., Asst. U. S. Atty., Michael J. Osman, Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., Miami, Fla, for appellee.

Cases that cite this one

12 later published cases cite this decision. The 11 that cite it most often are listed here.

United States v. Mainieri (United States District Court for the Southern District of Florida 1988)
United States v. James C. Gordon (5th Cir. 1986)
United States v. Wyatt (District Court, S.D. Texas 1981)
United States v. Robert L. Herring, and Jerry D. Dorminey (5th Cir. 1979)
United States v. Melvin Marable (5th Cir. 1978)
United States v. Noble C. Beasley (5th Cir. 1975)
United States v. Eduardo Bermudez (2d Cir. 1975)
United States v. Murray (9th Cir. 1973)
United States v. Joseph Hamilton Farabee (5th Cir. 1969)
John T. Dirring v. United States (1st Cir. 1967)
Richard Elmer Woodring v. United States of America, Harold Raymond Loch, Jr. v. United States of America, George Louis Bradley v. United States (10th Cir. 1967)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM:

Appellant moved to vacate sentence under 28 U.S.C.A. § 2255. The district court denied relief. We affirm.

The motion asserted that the “indictment did not inform your petitioner of the nature and substance of the charge”. *586 The basis -for this contention is that there was a fatal variance between allegations and proof, with a resulting failure to inform, which should have entitled appellant to a directed verdict of not guilty.

We agree that the failure of an indictment to inform the defendant of the nature and cause of the accusation is a defect which may be remedied by a § .2255 proceeding, Lauer v. United States, 7 Cir., 1963, 320 F.2d 187.

This Court, however, has already reviewed this case on its merits. We then held that “[t]here was ample evidence as to each of the appellants to sustain the verdict of the jury and judgments of conviction”, Napoli v. United States, 1965, 341 F.2d 916, cert. den. Grene v. United States, 382 U.S. 823, 86 S.Ct. 52, 15 L.Ed.2d 68. Thus the sufficiency of the proof, or any possibility of fatal variance therein, has already been settled by the usual appellate process.

In his memorandum of points and authorities, appellant contends that the indictment was so obviously defective as not to charge an offense under any reasonable construction,' citing Walker v. United States, 7 Cir., 218 F.2d 80, and Klein v. United States, 7 Cir., 204 F.2d 513.

We agree that if an indictment is so defective that under any reasonable construction it does not charge a criminal offense relief may be obtained under § 2255. Huizar v. United States, 5 Cir., 1964, 339 F.2d 173, cert. den. 380 U.S. 959, 85 S.Ct. 1099, 13 L.Ed.2d 975; Lauer v. United States, 7 Cir., 1963, 320 F.2d 187.

The opinions in these cases, however, very carefully point out that unless there is such a defect in the face of the indictment validity cannot be questioned by motion to vacate. See also Williams v. United States, 8 Cir., 1965, 344 F.2d 264.

We have obtained and carefully examined the indictment as it appears in the original appellate record. It was in the exact language of the statutes, §§ 371 and 2314, Title 18, United States Code. Since this is true, we do not consider it necessary to recopy the charges here. They were correctly and adequately stated.

Affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.