Mckinley E. Gore, Appellant, v. United States of America, Appellee, 244 F.2d 763 (D.C. Cir. 1957)

Appellant (defendant) was tried and convicted under each count of a six-count indictment charging violations of 26 U.S.C. § 4705(a),¹  26 U.S.C. § 4704(a)²  and 21 U.S.C.A. § 174.³  No appeal was taken; but some months later the defendant filed in the District Court a motion under § 2255 of Title 28, United States Code, to vacate, set aside or correct the sentences. The present appeal is from the denial of that motion.

The offenses charged in the first three counts relate to a transaction involving the same twenty-five capsules of narcotics and on the same date, whereas the offenses charged in the last three counts relate to another thirty-five capsules of narcotics involved in a transaction on another date.

The trial court sentenced the defendant to imprisonment for from one to five years and imposed a fine of $500.00 on each of the first three counts, the sentences to run consecutively. On each of counts four, five and six, defendant was fined $500.00 and sentenced to imprisonment for from one to five years, these latter sentences to run concurrently with the sentences on the first three counts. All fines were suspended.

The authorities are unanimous that a defendant may be convicted and sentenced under each of several counts of an indictment if each count states a different offense. The test of whether separate offenses are charged is whether some different evidence is essential to each count, or whether each count is supported by the same evidence. We said recently in Kendrick v. United States, 1956, 99 U.S.App.D.C. 173, 238 F.2d 34:

"A single act which violates two statutes is punishable under both, unless the offenses defined therein are identical. The test of identity is whether the same evidence will sustain both charges. If one of the offenses requires an element of proof which the other does not, a conviction of one does not bar prosecution for the other." Id., 238 F.2d at page 36.

See also Blockburger v. United States, 1932, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306.

When Congress enacted 26 U.S.C. §§ 4704(a) and 4705(a), and 21 U.S. C.A. § 174, it created three separate offenses. Each involves a different facet of the narcotics trade and each has different evidentiary requirements. This court and courts of a number of the other circuits, including the First, Fifth, Sixth, Seventh, Eighth and Ninth, have approved convictions and separate and consecutive sentences for violation of the same statutes involved here, or their predecessors, where each offense arose from one common transaction.⁴  And, as recently as January 2, 1956, the Third Circuit, in a well reasoned opinion by Judge Maris in United States v. Brisbane, 239 F.2d 859, a case identical to the present one, reached the same conclusion.

As in Brisbane, the defendant here further urges that, as he is a first offender, the sentences imposed on him violate the limits set by 26 U.S.C. § 7237 (a), popularly known as the Boggs Act. Since the defendant was sentenced to from three to fifteen years on his first conviction and the maximum sentence for a first offense, under the Boggs Act, is two to five years, his contention has a superficial appeal. However, defendant was tried, convicted and sentenced, not for one offense but for three, and his sentences do not exceed the maximum for first offenders on each count. So viewed, defendant's contention loses even its superficial appeal.

The Boggs Act, on which appellant bases his contention, was passed to deter the criminal who engages in illicit drug traffic and to increase the penalty for illegal traffic in drugs. See H.R. Rep. No. 635, 82d Cong., 1st Sess., June 21, 1951; S. Rep. No. 1051, 82d Cong., 1st Sess., Oct. 1, 1951; United States v. Brisbane, supra.

It having been long and well established, as above stated, that each count of such an indictment as is here involved states a separate offense, we can uphold defendant's contention only by holding that the three counts must be considered as a single offense, thereby causing his sentence to exceed the maximum for first offenders. We cannot accept this reasoning when its effect would be to reduce sentences for separate and distinct offenses by the use of a statute intended to increase the penalties. Support for rejecting defendant's contention is found in decisions of four other circuits dealing with the same statutes involved here. We cite these decisions with approval. United States v. Brisbane, supra; United States v. Lewis, 2 Cir., 1955, 227 F.2d 524, certiorari denied 1956, 350 U.S. 974, 76 S. Ct. 451, 100 L. Ed. 845; Everett v. United States, 6 Cir., 1955, 227 F.2d 457; Beacham v. United States, 10 Cir., 1955, 218 F.2d 528.

In Brisbane the defendant urged (1) that he received three separate sentences for a single action, a sale of heroin, which could result in only one offense against the United States; and (2) that the sentences aggregated a period of imprisonment, nine years, which was in excess of the maximum permitted by the Boggs Act for a first offender, which the defendant admittedly was. Both contentions were decided adversely to the defendant.

Consistently with the other circuits which have passed on the question, we conclude that sentence on each separate offense of which defendant was convicted was valid, was within the limits prescribed by law, and, in the discretion of the trial court, could be made to run consecutively.

It follows that the action of the District Court was correct.

Affirmed.

BAZELON, Circuit Judge (concurring).

A drug-peddler dispenses to his customers drugs which he has possessed and concealed; he dispenses them without prescriptions on official treasury forms; and he dispenses them not in or from stamped packages. By legislating separately against each component part of the transaction, Congress facilitated the prosecution and conviction of any who ply the illicit trade. It clearly intended that a person against whom any one of the defined phases of a drug-selling transaction is proved should be punished. It does not follow, however, that by providing for a five-year sentence for a violation of any of the statutes, Congress intended that one who performs the entire transaction receive a cumulative sentence of fifteen years.¹  If we were approaching afresh the question whether, in such a case, single or cumulative punishment is the legal course, I think we could not so easily conclude that the consecutive sentences here imposed are authorized. "It would be self-deceptive to claim that only one answer is possible to our problem." United States v. Universal C. I. T. Credit Corp., 1952, 344 U.S. 218, 224, 73 S. Ct. 227, 231, 97 L. Ed. 260.

But the question is not one we are at liberty to approach afresh. We are bound by the decision of the Supreme Court in Blockburger v. United States, 1932, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306. It may be that the "same evidence" test which has facilitated the fragmentation of crimes into multiple separately punishable components is being abandoned in favor of a "same transaction" test. See United States v. Universal C. I. T. Credit Corp., supra; Bell v. United States, 1955, 349 U.S. 81, 75 S. Ct. 620, 99 L. Ed. 905; Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370. Note also the granting of certiorari in cases presenting related problems: Bartkus v. People of State of Illinois, 1956, 352 U.S. 907, 77 S. Ct. 150, 1 L. Ed. 2d 116; Hoag v. State of New Jersey, ibid.; and Ladner v. United States, 352 U.S. 907, 77 S. Ct. 151, 1 L. Ed. 2d 116. Unless we are freed from the controlling effect of Blockburger, however, we have no choice but to countenance the sentences here imposed.

I am authorized by FAHY, Circuit Judge to state that he concurs in the views herein expressed.