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U.S. Court of Appeals for the Sixth Circuit, 1973

Sam Dipiazza v. United States

Sam Dipiazza v. United States
U.S. Court of Appeals for the Sixth Circuit · Decided January 12, 1973 · Phillips, Weick, Bratcher
471 F.2d 719; 1973 U.S. App. LEXIS 12185 (Federal Reporter, Second Series)

Counsel

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.

Sam Dipiazza v. United States

Cases that cite this one

22 later published cases cite this decision.

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Opinion

PER CURIAM.

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. §§ 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 re *720 hearing 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. § 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 § 2255. Hollbrook v. United States, 441 F.2d 371 (6th Cir. 1971).

Affirmed.

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