United States v. Stanley Wooden

Second Circuit

United States v. Stanley Wooden

453 F.2d 1258

CourtCourt of Appeals for the Second Circuit

DecidedDecember 7, 1971

Docket305, Docket 71-1751

StatusPublished

This text of 453 F.2d 1258 (United States v. Stanley Wooden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Stanley Wooden, 453 F.2d 1258 (2d Cir. 1971).

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Opinion

PER CURIAM:

We affirm the judgment of conviction for violating the narcotics laws, 21 U.S. C. § 174, 26 U.S.C. § 4705(a), and 18 U.S.C. § 2, repealed after conviction by the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-531, effective May 1, 1971. The evidence relating to the conspiracy count, that narcotics transactions occurred between appellant’s brother and the government agent each time after the latter had telephoned appellant to arrange a meeting with the brother, was allowable as probative of the substantive crime charged of passing heroin to the agent, and the dismissal of the conspiracy count late in the trial did not render the evidence inadmissible. Cf. United States v. Branker, 418 F.2d 378 (2 Cir. 1969). We do not need to consider the government’s claim that the conspiracy count was improperly dismissed.

Of course, the district court is free to entertain motions from the parties to reconsider the sentence. Rule 35, F.R. Crim.P. If such a motion is made, that Court may then consider United States v. Stephens, 449 F.2d 103 (9th Cir., 1971); United States v. Caraballo, 334 F.Supp. 843 (S.D.N.Y. July 19, 1971), aff’d without opinion (2d Cir. Oct. 7, 1971), and United States v. Fiotto, Dkt. 71-1651, currently pending in this court, concerning the effect of the repeal of certain statutory provisions having to do with sentence.

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PER CURIAM:

We affirm the judgment of conviction for violating the narcotics laws, 21 U.S. C. § 174, 26 U.S.C. § 4705(a), and 18 U.S.C. § 2, repealed after conviction by the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-531, effective May 1, 1971. The evidence relating to the conspiracy count, that narcotics transactions occurred between appellant’s brother and the government agent each time after the latter had telephoned appellant to arrange a meeting with the brother, was allowable as probative of the substantive crime charged of passing heroin to the agent, and the dismissal of the conspiracy count late in the trial did not render the evidence inadmissible. Cf. United States v. Branker, 418 F.2d 378 (2 Cir. 1969). We do not need to consider the government’s claim that the conspiracy count was improperly dismissed.

Of course, the district court is free to entertain motions from the parties to reconsider the sentence. Rule 35, F.R. Crim.P. If such a motion is made, that Court may then consider United States v. Stephens, 449 F.2d 103 (9th Cir., 1971); United States v. Caraballo, 334 F.Supp. 843 (S.D.N.Y. July 19, 1971), aff’d without opinion (2d Cir. Oct. 7, 1971), and United States v. Fiotto, Dkt. 71-1651, currently pending in this court, concerning the effect of the repeal of certain statutory provisions having to do with sentence.

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