Arthur J. Palmer v. United States

Arthur J. Palmer appeals from an order denying his motion, made under 28 U.S.C. § 2255 (1958), to set aside his conviction and sentence.

On September 13, 1962, Palmer was convicted on his plea of guilty to a charge of unlawful possession of a “quantity” of heroin in violation of section 4724(c) of the Internal Revenue Code of 1954, 26 U.S.C. § 4724 (c) (1958). He was sentenced to imprisonment for seven and one-half years. Palmer thereafter moved, pursuant to section 2255, to vacate the sentence and conviction on the grounds that he did not plead understandingly and voluntarily and that section 4724 violates the privilege against self incrimination protected by the Fifth Amendment. The motion was denied and this court affirmed. Palmer v. United States, 9 Cir., 332 F.2d 788 .

In his second section 2255 motion, now before us, Palmer contends that the information to which he pleaded does not charge a crime under section 4724(c) because it fails to state that the quantity of heroin found in his possession exceeded one-eighth of a grain. He calls attention to section 4702(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 4702 (a) (1958), which provides that:

If the one-eighth…