J. Paul Scott, Movant-appellant, v. United States of America, Respondent-appellee, 304 F.2d 706 (6th Cir. 1962)

Morton Rabkin (court appointed), Cincinnati, Ohio (J. Paul Scott pro se on the brief), for appellant.

William A. Watson, Asst. U. S. Atty., Lexington, Ky. (Bernard T. Moynahan, Jr., U. S. Atty., Lexington, Ky., on the brief), for appellee.

Before McALLISTER and O'SULLIVAN, Circuit Judges and BOYD, District Judge.

Upon a guilty plea appellant was convicted and sentenced in 1957 on a two count indictment charging conspiracy to enter by force the Farmers and Traders Bank of Campton, Kentucky (Sections 371 and 2113(a), Title 18 U.S.C.) and of the substantive offense of forcible entry of said bank with intent to commit larceny in violation of Section 2113(a) of Title 18 U.S.C.

After a lapse of more than four years appellant who is serving his sentence at Alcatraz filed a motion entitled "Motion For The Arrest of Judgment and Vacation of Sentence and Conviction" under Rule 34 of the Federal Rules of Criminal Procedure, 18 U.S.C., complaining that the indictment upon which he was sentenced was insufficient to constitute offenses under the statutes aforesaid.

Since the motion for arrest of judgment under Rule 34 was not seasonably filed, the district judge treated same as one to vacate the judgment pursuant to Section 2255 of Title 28 U.S.C.

While the trial judge ruled the indictment which was substantially in the wording of the statute adequately charged the offenses intended and was sufficient under the tests laid down in Hagner v. United States, 285 U.S. 427, 431, 52 S. Ct. 417, 76 L. Ed. 861, he also held any question concerning validity of the indictment should have been tested by timely appeal rather than by motion to vacate the judgment. Dunn v. United States, 234 F.2d 219, CA 6th, 1956, cert. denied 352 U.S. 899, 77 S. Ct. 140, 1 L. Ed. 2d 90.

This appeal from these rulings has been considered on the briefs and oral arguments of counsel;

And it appearing that there is no merit in the contentions of the appellant and that the district judge has correctly applied the applicable principles of law;

And it appearing that there is no reversible error in the rulings of the trial judge;

The judgment of the district court is affirmed and it is so ordered.