Swope

Petitioner and four co-defendants were, convicted in the United States District Court for the Southern District of New York on a charge of stealing shipments in interstate commerce, in violation of 18 U.S. C.A. § 409 (now §§ 659, 2117), and on a conspiracy count under 18 U.S.C. § 88 (now § 371). Appeals were taken to the United States Court of Appeals, Second Circuit, and the judgments affirmed. United States v. De Normand, 149 F.2d 622 . On November 30, 1947, one Oddo, a co-defendant of petitioner, moved in the United States District Court, Southern District of New York, under rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., to vacate, as illegal, so much of the sentence as rested on counts 3 to 8 thereof. The motion was denied, an appeal taken and the order of denial affirmed. Oddo v. United States, 2 Cir., 171 F.2d 854 .

Petitioner, in this habeas corpus proceeding now before us, raises almost the identical questions advanced by his co-defendant in the courts of the second circuit, which said courts decided the issues adversely to the contentions of said co-defendant. We make reference to the second circuit cases for a full discussion of the facts. We will…