Fred Stein v. United States

The principal issue in this case is whether a conspiracy count in an indictment is void for want of an allegation of an essential element of the substantive offense.

Appellant filed a motion under 28 U.S. C.A. § 2255 to vacate a judgment of conviction and sentence based upon a violation of the federal narcotics law. From an order denying his motion, he appeals.

Appellant was indicted on six counts for trafficking in unlawfully imported narcotics in violation of 21 U.S.C.A. § 174 . Count I alleged conspiracy, and the other five counts alleged substantive offenses. The jury found appellant guilty of the conspiracy count and of four of the five substantive counts. By reason of prior narcotics convictions, appellant was sentenced to prison terms totaling 50 years. He appealed, and we affirmed, 271 F.2d 895 (9 Cir., 1959). Certiorari was denied, 362 U.S. 950 , 80 S.Ct. 860 , 4 L.Ed.2d 868 (1960).

Appellant then filed a motion under 28 U.S.C.A. § 2255 to vacate the judgment of conviction and sentence, in which he alleged in substance that: (1) Count I (the conspiracy count) of the indictment was fatally defective for. want of an allegation of an essential jurisdictional element of…