United States v. Alfred Dovico

329 F.2d 52, 1964 U.S. App. LEXIS 6083

• Court: Court of Appeals for the Second Circuit
• Decided: March 11, 1964
• Docket: 28493_1
• Status: Published

Opinion

329 F.2d 52

UNITED STATES of America, Appellee,
v.
Alfred DOVICO, Appellant.

No. 343, Docket 28493.

United States Court of Appeals Second Circuit.

Argued March 11, 1964.
Decided March 11, 1964.

Before SMITH, KAUFMAN and MARSHALL, Circuit Judges.

PER CURIAM.

Appellant Dovico was convicted on trial to the court, jury waived, of violating 21 U.S.C. 173 and 174, and sentenced to ten years as a second offender in the United States District Court for the Southern District of New York, Sidney Sugarman, District Judge. A conspiracy count in the indictment was dismissed by the trial judge. The appellant argues that the dismissal of the conspiracy count precludes a conviction on the substantive count. But dismissal of the conspiracy count is not inconsistent with the finding of guilt on the substantive count, and the principles of res judicata are not involved. United States v. Robinson, 320 F.2d 880 (2 Cir. 1963).

Viewed in the light most favorable to the government, or in any light for that matter, the evidence is plainly sufficient to establish guilt. The conviction is affirmed.

Robert J. McGuire, Asst. U.S. Atty., Southern District of New York (Robert M. Morgenthau, U.S. Atty., and Charles A. Stillman, Asst. U.S. Atty., Southern District of New York, on the brief), for appellee.

James J. Hanrahan, New York City, for appellant.