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Fairman v. United States

United States Court of Appeals, Fifth Circuit
Dec 16, 1976
544 F.2d 197 (5th Cir. 1976)

Summary

rejecting claim that indictment defective because it alleged transactions not alluded to in the complaint

Summary of this case from U.S. v. Cabrera-Teran

Opinion

No. 76-2942. Summary Calendar.

Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

December 16, 1976.

Earl Tanner Fairman, Jr., pro se.

Michael P. Carnes, U.S. Atty., William O. Wuester, III, Gerhard E. Kleinschmidt, Asst. U.S. Attys., Fort Worth, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before COLEMAN, GOLDBERG and GEE, Circuit Judges.



In 1969 a jury found appellant guilty of eleven counts of conspiracy and a variety of substantive offenses relating to the counterfeiting of rare United States coins. The court imposed consecutive sentences on four of the counts aggregating fifteen years and added a five year probation term on another count. The remaining counts brought concurrent sentences. This court affirmed the conviction on direct appeal. United States v. Wilson, 451 F.2d 209 (5th Cir. 1971).

The sentencing court denied the instant motion to vacate the judgment of conviction under 28 U.S.C. § 2255, rejecting Fairman's assertions of defects in the indictment. We affirm.

Contrary to appellant's claims, each of the various counts in the indictment charges with specificity an offense separate and distinct from the remainder. Fairman points specifically to three pairs of counts in the indictment, claiming that each pair charges but a single offense. In each instance, however, one count in the pair charges an offense of producing counterfeit coins or fraudulently altering a coin. The second count in each pair charges an act of distributing the coins produced. Therefore, the two offenses in each pair are separate; each required proof of an element the other did not. See Ianelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

As each count of the indictment alleged either a separate transaction or an offense requiring elements sufficiently distinct to meet the test of Blockburger, supra, Fairman can mount no successful attack on the validity of the bill or the consecutive sentences imposed upon his conviction. Finally, his claim that the indictment alleged transactions not alluded to in a complaint filed under Fed.R.Crim.P. 3 is also meritless; nothing in that rule or in rule 7 so limits the terms of the indictment.

The judgment below is AFFIRMED.


Summaries of

Fairman v. United States

United States Court of Appeals, Fifth Circuit
Dec 16, 1976
544 F.2d 197 (5th Cir. 1976)

rejecting claim that indictment defective because it alleged transactions not alluded to in the complaint

Summary of this case from U.S. v. Cabrera-Teran

applying federal law

Summary of this case from Price v. Cockrell
Case details for

Fairman v. United States

Case Details

Full title:EARL TANNER FAIRMAN, JR., PETITIONER-APPELLANT, v. UNITED STATES OF…

Court:United States Court of Appeals, Fifth Circuit

Date published: Dec 16, 1976

Citations

544 F.2d 197 (5th Cir. 1976)

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