Ng Pui Yu v. United States

We are met at the threshold with a motion by the Government to remand the case for proper judgment and sentence.

Appellant was convicted by a jury of violation of Title 21, U.S.C. § 174 and for conspiracy to violate the said section.

The trial judge sentenced Appellant to imprisonment for a period of two years as to each of Counts 13 and 15, to run concurrently, adjudging that the Appellant has been convicted upon his plea of not guilty and a verdict of guilty of the offense of violation of Title 26, U.S.C. § 4704 — Conspiracy To Sell Narcotics Not From Stamped Package.

The Government would have us remand, contending that since Appellant was indicted under and convicted of a violation of Title 21, U.S.C. § 174 , and since Appellant was not charged and convicted under 26 U.S.C. § 4704 , the judgment and sentence is based on a nonexistent verdict, so that there is no reviewable judgment or order before this Court.

The Judgment and Commitment is an appealable order under Rule 37, F.R.Cr.P., 28 U.S.C. Sections 1291 and 1294(1). We need not decide whether the Court below had the authority to sentence Appellant as it did. Should we reverse, the question is moot. If we affirm, the…