UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
June 27, 1974
Thomas PYTEL, Petitioner,
UNITED STATES of America, Respondent
The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Thomas Pytel, confined in the United States Penitentiary in Atlanta, Georgia, collaterally challenges, pro se, under 28 U.S.C. § 2255, two concurrent twenty-year prison sentences imposed by this court following his conviction by a jury of the crimes of conspiracy to violate the narcotics laws, and selling or facilitating the transportation, concealment or sale of illegally imported narcotics, with knowledge of the illegal importation. 21 U.S.C. §§ 173, 174. Petitioner's convictions were affirmed in United States v. Dalli, 424 F.2d 45 (2d Cir.), cert. denied, 400 U.S. 821, 91 S. Ct. 39, 27 L. Ed. 2d 49 (1970).
Petitioner contends that his convictions are invalid because (1) Counts I and II of the indictment charge a single crime, i.e., conspiracy to violate the narcotics laws, in violation of the double jeopardy clause of the Fifth Amendment, and (2) Count I of the indictment is duplicitous in that it charges two conspiracies, i.e., violations of 21 U.S.C. §§ 173, 174, and 18 U.S.C. § 371. Petitioner seeks to invalidate his conviction on Count II, or, in the alternative, to reduce his sentence on that count to a term of five years, and also to reduce his sentence on Count I to five years, which he argues is the maximum sentence allowable on Count I.
Petitioner's attack on Count II is based on the false assumption that both Counts I and II charge him and his codefendants with conspiracy to violate the narcotics laws. He argues that his conviction on both counts, therefore, constitutes double jeopardy.
Petitioner's assumption is erroneous as a matter of law. Count II does not charge a conspiracy, but the substantive crime of selling or facilitating the transportation, concealment or sale of a narcotic drug, with knowledge of the illegal importation. 21 U.S.C. §§ 173, 174. It is settled law that "the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses."
Since Counts I and II clearly charge separate crimes, petitioner's double jeopardy attack on his conviction under Count II is without merit.
Petitioner's challenge to his conspiracy conviction is more troublesome. He claims that the conspiracy count in the indictment is duplicitous because it charges two conspiracies, one under 21 U.S.C. §§ 173, 174, and another under 18 U.S.C. § 371. This contention is based upon the fact that the indictment expressly cites not only 21 U.S.C. §§ 173, 174, but also cites 18 U.S.C. § 371 at the foot of Count I.
The maximum penalties which may be imposed under the statutes cited in Count I differ. The general conspiracy statute. 18 U.S.C. § 371, provides for a maximum sentence of five years in prison and/or a $10,000 fine, but 21 U.S.C. § 174, which has since been repealed, provided for a maximum sentence of twenty years in prison and/or a fine of $20,000.
Petitioner was sentenced on Count I, pursuant to 21 U.S.C. §§ 173, 174, to a twenty-year prison term, to run concurrently with the sentence imposed on Count II. He now claims that his conspiracy conviction is invalid, or, in the alternative, that his sentence on Count I should be reduced to five years.
Defects in an indictment, other than those relating to lack of jurisdiction or failure to charge an offense, may be raised only by motion before trial, and objections to such defects are waived unless made before trial.
Petitioner, although represented by experienced counsel, directed no motions to this alleged defect in the indictment either before trial or at any other time prior to the filing of this petition. Our Court of Appeals has held, on virtually identical facts, that objections to an indictment as duplicitous may not be raised for the first time on a motion under 28 U.S.C. § 2255 and will be deemed waived.
Moreover, the erroneous reference to 18 U.S.C. § 371 in the indictment was a mere miscitation, which is not a ground for dismissal of an indictment or reversal of a conviction unless the defendant demonstrates that he was prejudiced by the miscitation.
No such showing of prejudice has been made. The indictment, on its face, not only cites 21 U.S.C. §§ 173, 174, but alleges a conspiracy in the express language of those statutes.
Moreover, the charge to the jury shows clearly and unmistakably that the jury was charged in the language of 21 U.S.C. §§ 173, 174, and that petitioner was convicted of conspiracy under those statutes.
Therefore, petitioner's attack on Count I as duplicitous must be rejected. Finally, in any event, petitioner's concurrent twenty-year prison sentence on Count II remains in effect.
Accordingly, the within motion is denied in all respects. This court will not authorize an appeal in forma pauperis under 28 U.S.C. § 1915(a) and hereby certifies that any appeal is not taken in good faith. In this context, good faith is judged by an objective standard, and where, as here, an appeal would be frivolous, it is not taken in good faith. Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962); United States v. Visconti, 261 F.2d 215 (2d Cir. 1958), cert. denied, 359 U.S. 954, 79 S. Ct. 743, 3 L. Ed. 2d 762 (1959).