Opinion
No. 8866.
January 9, 1939.
Appeal from the District Court of the United States for the Northern District of California, Southern Division; Adolphus F. St. Sure, Judge.
Mario Balistreri was convicted of an offense under the Harrison Narcotic Act, 26 U.S.C.A. § 1040 et seq., and he appeals, and the United States of America moves to dismiss the appeal.
Affirmed.
Raine Ewell, of San Francisco, Cal., for appellant.
Frank J. Hennessy, U.S. Atty., and S.J. Murman, Asst. U.S. Atty., both of San Francisco, Cal., for appellee.
Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.
The appellee moved to dismiss the appeal on the ground that it is a frivolous appeal and that appellant's brief had not been filed within the time fixed by order of court. On the argument the appellant tendered his brief on appeal and the appellee abandoned the motion insofar as it was based upon the ground of delay, but pressed the claim that the appeal is frivolous.
The trial court in sentencing the appellant who plead guilty fixed a term of imprisonment to begin at the expiration of the term theretofore imposed for the crime of counterfeiting. The appellant's claim is that the court had no power to defer the beginning of the period of imprisonment.
This court has recently considered this question in appeals from orders denying release on habeas corpus.
In McNealy v. Johnston, 9 Cir., 100 F.2d 280, December 8, 1938, it was claimed that a sentence fixed to commence at the end of another sentence on another indictment was void. This court held the sentence valid. Similar deferred sentences were considered in Van Gorder v. Johnston, 9 Cir., 82 F.2d 729, and Id., 9 Cir., 87 F.2d 654, and in Brown v. Johnston, 9 Cir., 91 F.2d 370. The Third Circuit Court of Appeals reached the same conclusion on a direct appeal, Miketich v. United States, 72 F.2d 550. The claim that the postponement of the beginning of the term is violative of the constitutional prohibition against ex post facto laws, Art. 1, sec. 9, U.S.C.A.Const., is without merit. Also, the claim that the Harrison Narcotic Act, 26 U.S.C.A. § 1040 et seq., under which the appellant was sentenced is unconstitutional as applied to smoking opium is without merit. Lee Mow Lin v. United States, 8 Cir., 250 F. 694. The act is constitutional. Ratigan v. United States, 9 Cir., 88 F.2d 919; Mauk v. United States, 9 Cir., 88 F.2d 557.
Both parties having presented their position fully on this hearing and the appeal being without merit, the judgment is affirmed.