434 F2d 653 United States v. Gomez

434 F.2d 653

UNITED STATES of America, Appellee,
Gumersindo Perez GOMEZ, Appellant.

No. 14551.

United States Court of Appeals, Fourth Circuit.

November 13, 1970.

H. Harrison Braxton, Jr., Fredericksburg, Va. (Court-appointed), for appellant.

Brian P. Gettings, U. S. Atty., and C. P. Montgomery, Jr., Asst. U. S. Atty., for appellee.

Before BOREMAN, WINTER and BUTZNER, Circuit Judges.


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Gumersindo Gomez and one Schoppel were tried and convicted of second degree murder in 1958 for the killing of a guard at the federal reformatory in Lorton, Virginia. Schoppel appealed his conviction, and we affirmed. Schoppel v. United States, 270 F.2d 413 (4 Cir. 1959). Gomez did not appeal.


Subsequently, Gomez filed a motion to vacate his sentence under 28 U.S.C. § 2255. The district court denied the motion, but we reversed because Gomez had been denied his right to appeal, and we directed the district court to resentence Gomez. Gomez v. United States, No. 13,764 (4 Cir. Feb. 6, 1970) (mem. dec.). Following resentencing by the district court Gomez brought this appeal.


Gomez claims that the trial court erred in not instructing the jury that they had to find that the offense had been committed "within the special maritime and territorial jurisdiction of the United States," and that there was insufficient evidence of such jurisdiction presented by the Government at his trial. In Schoppel v. United States, 270 F.2d 413, 418, supra, we found no merit in these same claims which were then raised in the appeal of Gomez' codefendant, Schoppel, because the jurisdiction of the United States over the situs of the offense had in no way been controverted at the trial and because the testimony of the Government's witness was adequate to prove the court's jurisdiction, if the matter was not one of which the court could take judicial notice. We concluded in Schoppel, supra, that the United States is not required to try title in a murder case and we cited Holt v. United States, 218 U.S. 245, 252, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), in which this same question was presented and decided. Our decision in Schoppel is dispositive of the jurisdictional questions raised by Gomez in the present appeal.


Having carefully reviewed the briefs, the appendices and the record, we find that the other claims of Gomez on this appeal are without merit.


Accordingly, we find oral argument unnecessary and affirm the judgment below.