Jonathan GREGORI, Appellant, v. UNITED STATES of America, Appellee

United States Court of Appeals for the Fifth Circuit1957-04-05No. No. 16363

243 F.2d 47

Summary · law.co

Holding. The court affirmed the denial of Gregori's motion to vacate, holding that the slight variance between the indictment naming Fort Worth as the departure point and the trial evidence showing Dallas was too trivial and non-prejudicial to warrant relief on collateral attack under 28 U.S.C.A. § 2255.

Jonathan Gregori was indicted for violating the White Slavery Act by transporting a woman from Fort Worth, Texas to Jacksonville, Florida. However, evidence at trial showed he actually transported her from Farmington, New Mexico to Jacksonville, with a stop in Dallas. Gregori filed a motion under 28 U.S.C.A. § 2255 to vacate his sentence based on this discrepancy between the indictment and the proof presented at trial.

The court rejected Gregori's argument that the variance between the indictment and proof rendered the indictment defective. The court found the indictment was sufficiently clear to inform him of the charges and that the difference between Fort Worth and Dallas—only 37 miles apart—was so minimal and nonprejudicial that it does not warrant relief on collateral attack. The court noted that to overturn a sentence on collateral review based on an indictment defect, exceptional circumstances must exist, such as an indictment failing to allege any offense under any reasonable reading.

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Key issues

Whether a minor variance between allegations in an indictment and proof at trial justifies collateral relief
Standard for granting relief on collateral attack under 28 U.S.C.A. § 2255 based on alleged indictment defects
Sufficiency of an indictment to inform a defendant of charges despite discrepancies with trial evidence

Procedural posture

Gregori appealed the district court's denial of his motion to vacate his sentence filed under 28 U.S.C.A. § 2255 on the basis of an alleged variance between the indictment and trial proof.

Authorities cited

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Opinion · public domain

majority opinion

PER CURIAM.

Appellant was indicted on the charge of transporting a woman in interstate commerce in violation of the White Slavery Act, 18 U.S.C.A. § 2421, from Fort Worth, Texas, to Jacksonville, Florida. At the trial, at which he was represented by counsel, evidence was introduced that he had transported the woman from Farmington, New Mexico, to Jacksonville, with a stop in Dallas, Texas. His counsel filed a motion for a new trial, asserting six grounds, none of which challenged the indictment as defective or claimed any variation between the indictment and the proof. After sentence no tice of appeal was filed, but no appeal was prosecuted.

Appellant filed this motion to vacate his sentence under the provisions of 28 U.S.C.A. § 2255, because of the defect in the indictment. The district judge, who had presided at the trial, held that in view of the above facts, and noting that Dallas and Fort Worth are only 37 miles apart, appellant had not shown that this slight variance could conceivably have prejudiced him, and that since it appeared conclusively from the files and records in the case that appellant is entitled to no relief he denied the motion.

We fully agree with the district judge that there is no substance to appellant’s complaint. The indictment was sufficient to inform him of the charge he was to meet at the trial and it is certain that he could plead the present conviction as a bar to any further prosecution growing out of the same transportation, whether from Dallas or from Fort Worth. The indictment is thus sufficient to have withstood any direct attack that might have been made at the trial or appeal A fortiori, on a collateral attack under 28 U.S.C.A. § 2255 exceptional circumstances must be shown for the vacation of a sentence on the basis of a defective indictment, e.g. if it be shown that the indictment does not allege an offense under any reasonable construction.

The variation between the indictment and the proof alleged in the motion is so slight and so plainly not prejudicial to any substantial right of the petitioner that courts are precluded from noticing it. Rule 52(a), Fed.Rules Crim.Proc., 18 U.S.C.A.; 28 U.S.C.A. § 2111.

The denial of appellant’s motion -is hereby

Affirmed.

. The indictment read as follows:

"That on or about the fourth day of December, 1954, Jonathan Gregori did knowingly transport and cause to be transported in interstate commerce, a woman or girl, to-wit, Gwendolyn, Lnu, by means of a common carrier, to-wit, an airplane, from Fort Worth, in the State of Texas, to Jacksonville, in the Southern District of Florida, for the purpose of prostitution and debauchery; in violation of Title 18, United States Code Section 2421.”

. United States v. Williams, 5 Cir., 203 F.2d 572, certiorari denied 346 U.S. 822, 74 S.Ct. 37, 98 L.Ed. 347; Parsons v. United States, 5 Cir., 189 F.2d 252.

. Brassell v. United States, 5 Cir., 223 F.2d 259; Brant v. United States, 5 Cir., 218 F.2d 808; Barnes v. United States, 8 Cir., 197 F.2d 271; Byers v. United States, 10 Cir., 175 F.2d 654, certiorari denied 339 U.S. 976, 70 S.Ct. 1008, 94 LEd. 1381, 340 U.S. 949, 71 S.Ct. 528, 95 L.Ed. 684.

. United States v. Nickerson, 7 Cir., 211 F.2d 909; United States v. Williams, supra; Mellor v. United States, 8 Cir., 160 F.2d 757, certiorari denied, 331 U.S. 848, 67 S.Ct. 1734, 91 L.Ed. 1858 (affirming a Mann Act conviction in which there was a slight variation between the indictment and the proof as to the terminus of the transportation).