Irving Gilinsky, Also Known as Samuel Benjamin Feldman v. United States

This matter is here for the second time. As appears from our former opinion [Gilinsky v. United States, 335 F.2d 914 (9th Cir. 1964)], the appellant, on pleas of guilty, was convicted of all four counts of an indictment charging him with causing falsely made securities to be transported in interstate commerce ( 18 U.S.C. §§ 2314 , 2). The district court directed that the sentences on Counts I, II and III were to run consecutively and that the sentence on Count IV was to be concurrent with that on Count I. Thereafter appellant filed a petition under Rule 35 of the Federal Rules of Criminal Procedure to vacate the sentence on the ground that it was illegal. The substance of his allegations was that the several counts in fact embraced only one offense. His petition was summarily rejected and he then appealed.

Observing that it would be grossly unjust to allow multiple convictions to stand if these allegations were true, we directed the district court to entertain Gilinsky’s motion to set aside the judgment and withdraw his pleas and to take evidence on factual issues. This was done.

No attention was devoted to Count IV, since the sentence on it was concurrent with that on Count I.…