United States v. Toney Chisum, Jr.

In 1967, Chisum was convicted on all counts of a ten-count indictment charging violations of 21 U.S.C. § 174 and 26 U.S.C. § 4705 (a). He appealed to this court, and we, on January 14, 1970, affirmed the conviction. Chisum v. United States, 9 Cir., 1970, 421 F.2d 207 . On March 5, 1970, Chisum filed a motion to vacate under 28 U.S.C. § 2255 . He appeals from denial of that motion. We treat the motion as one for a new trial under Rule 33, F.R.Crim.P., on the ground of newly discovered evidence. The motion was made within two years after the mandate of affirmance from this court. See Casias v. United States, 10 Cir., 1964, 337 F.2d 354 .

The indictment dealt with three transactions, occurring respectively on May 11, (counts one through four), May 24, (counts five through seven), and May 26, 1966, (counts eight through ten). Counts two and four change a sale of 55.640 grams of heroin to Chris V. Saiz, a federal narcotic agent, in violation of 21 U.S.C. § 174 and 26 U.S.C. § 4705 (a). Count one charges concealment, etc. of .620 grams of heroin in violation of § 174, and count three makes the same charge as to the 55.640 grams of heroin. Counts five and seven charge a sale of 18.070…