Daniel Elchuk, Appellant, v. United States of America, Appellee, 296 F.2d 723 (5th Cir. 1961)

The appellant and Ray Edward Gondron were convicted on three counts of an indictment charging violations of the customs and marihuana tax laws. This Court reversed. Gondron v. United States, 5 Cir., 242 F.2d 149. On a second trial there was an acquittal on the first two counts and a conviction on the third count. Another appeal was taken and the conviction was affirmed. Gondron v. United States, 5 Cir., 256 F.2d 205, cert. den. 358 U.S. 865, 79 S. Ct. 96, 3 L. Ed. 2d 98. The appellant thereafter sought relief from his conviction and sentence by a motion under 28 U.S.C.A. § 2255, asserting that the indictment failed to allege a crime. The count on which the conviction was had is in the following terms:

"On or about the 5th day of April, 1956, within the Laredo Division of the Southern District of Texas and within the jurisdiction of this Court, one Ray Edward Gondron, and one Daniel Elchuk, transferees required to pay the transfer tax and (sic) feloniously acquire, obtain and receive from persons to the Grand Jurors unknown, a quantity of marihuana, to wit: Approximately sixty (60) pounds of prepared marihuana in sixty (60) one (1) pound packages, wrapped in brown paper and plastic, all contained in three (3) white sugar sacks, without having paid the transfer tax imposed by said code. (Violation Section 4744 (a) Title 26, U.S.C.A.)"

Unless it can be said that an indictment does not, under any reasonable construction, charge an offense, there can be no successful collateral attack made upon it by a motion under Section 2255. Gregori v. United States, 5 Cir. 1957, 243 F.2d 47; Brassell v. United States, 5 Cir. 1955, 223 F.2d 259; Brant v. United States, 5 Cir. 1955, 218 F.2d 808. The indictment here, although carelessly drawn, was sufficient. United States v. Behrman, 258 U.S. 280, 42 S. Ct. 303, 66 L. Ed. 619. In the two appeals by which the appellant sought to have his conviction set aside it is clearly apparent that he knew the charges against him.

We find no merit in the appellant's contention which we have discussed nor in the other matters which he has raised. The order denying the appellant's motion is

Affirmed.