Sidney B. Cohen, A/K/A Arthur Norman Smith v. United States
436 F.2d 586
February 4, 1971 · Docket 30242
Headnotes
Generated summaries- Headnote 1
Cohen argued the indictment was invalid because the grand jury saw no proof he personally caused the counterfeit traveler's check to be transported interstate. The court rejected the argument, holding that such an alleged lack of evidence does not affect the district court's jurisdiction over the indictment.
- Headnote 2
Cohen contended his nolo contendere plea was involuntary and that counsel was ineffective. The district court, after reviewing the transcript, found no factual basis for those claims, and affirmed that without such evidence the conviction stands.
- Headnote 3
Cohen moved for relief under 28 U.S.C. § 2255, claiming indictment defects and plea involuntariness. The district court, finding no substantive factual claims, denied the petition without a hearing, and the appellate court affirmed that discretion was proper.
- Headnote 4
The defendant argued the grand jury saw no proof he himself caused the interstate transport of a counterfeit check. The court held that insufficiency of grand‑jury evidence alone is not a basis to dismiss an indictment.
- Headnote 5
The petitioner claimed his plea was involuntary and counsel ineffective, but the record contained no evidence of either. The district court therefore denied relief, and the appellate court affirmed.
- Headnote 6
The district judge reviewed the transcript of the original proceeding and, finding no substantive claims, refused a hearing. The appellate court held that such discretion is proper under § 2255.
- Headnote 7
Cohen argued the indictment was defective since the grand jury saw no proof he caused the interstate transport of a counterfeit traveler’s check. The court held that an indictment is not vulnerable to attack solely on the adequacy of grand‑jury evidence.
- Headnote 8
Cohen claimed his plea was involuntary and his counsel ineffective, but the case record contained no factual basis for those assertions; consequently the conviction remained in force.
- Headnote 9
The court examined the transcript, found no substantive allegations supporting Cohen’s challenges, and therefore properly refused to hold a hearing, dismissing the petition on the papers.
Opinion
Sidney B. Cohen appeals from the District Court’s denial of his motion to vacate judgment and sentence, 28 U.S.C. § 2255. We affirm.
Cohen was convicted upon his plea of nolo contendere on one count of causing the interstate transportation of a counterfeit American Express traveler’s check, knowing the same to be counterfeit, in violation of 18 U.S.C. § 2314. Four similar counts, and one count alleging a violation of 8 U.S.C. § 1326, were dismissed upon motion of the Government. There was no direct appeal.
Cohen contends that, inasmuch as the record does not indicate that the grand jury which indicted him was shown any evidence that he himself caused the counterfeit traveler’s cheek to be transported interstate, the indictment was so defective as to deprive the District Court of jurisdiction. The argument is without merit. Indictments are not open to challenge merely on the ground that the evidence before the grand jury was inadequate or incompetent. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956).
Cohen further contends that his plea of nolo contendere was involuntary, and that the assistance rendered him by counsel was ineffective. The District Judge examined the transcript of the original proceeding and concluded, without an evidentiary hearing, that there was no substance to Cohen’s allegations. We agree that the records of the case conclusively show that Cohen is entitled to no relief. 28 U.S.C. § 2255; Barrett v. United States, 5 Cir., 1962, 302 F.2d 151.
Affirmed.