United States v. Herbert Frederick Lent

432 F.2d 440

UNITED STATES of America, Appellee,
v.
Herbert Frederick LENT, Appellant.

No. 14636.

United States Court of Appeals, Fourth Circuit.

Oct. 8, 1970.

Stanley S. Cohen, Baltimore, Md., on brief for appellant. George Beall, U.S. Atty., and Charles G. Bernstein, Asst. U.S. Atty., D. Maryland, on brief for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BUTZNER, Circuit judges.

PER CURIAM:

1

Herbert Frederick Lent appeals from his conviction of transporting and concealing a motor vehicle in interstate commerce in violation of 18 U.S.C. 2312, 2313. The United States has filed a motion for summary affirmance.

2

Lent complains that the indictment is insufficient because it does not identify the stolen car by color, model, license, or identification number. The indictment follows Forms 6 and 7 of the Appendix to the Federal Rules of Criminal Procedure. It is legally sufficient. Clark v. United States, 400 F.2d 83 (9th Cir. 1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969); Myles v. United States, 170 F.2d 443 (5th Cir. 1948).

3

Lent also urges that Count Two of the indictment charging receiving and concealing a motor vehicle moving in interstate commerce, knowing it to have been stolen, merged with Count One that charged interstate transportation of the same stolen vehicle. We find it unnecessary, however, to pursue his argument. Lent was tried by the court without the intervention of a jury. The judge made clear that he did not intend Lent to serve additional time because he was convicted on both counts of the indictment, and that he intended to punish Lent by sentencing him to five years' imprisonment. To this end the court punished Lent by concurrent five-year sentences. Thus, the sentences, if not the offenses, were merged. From the statement of the trial judge it is plain that had Lent been convicted of only one count, he would have received the same sentence. Perceiving no prejudice to Lent, we affirm the judgment. Cf. Clark v. United States, 267 F.2d 99, 101 (4th Cir. 1959).