KENTHA EARL MCDOWELL, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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The court held that an indictment for violating 21 U.S.C.A. § 174 is valid even if it does not name the person with whom the illegal narcotics transaction occurred.
Appellant was convicted of violating 21 U.S.C.A. § 174. He later filed a motion to vacate the conviction, arguing the indictment was invalid for faili…
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PER CURIAM.
Appellant was charged, tried and convicted by a jury under an indictment alleging a violation of 21 U.S.C.A. § 174, pertaining to the illegal traffic in narcotics. No appeal was perfected from that conviction. A motion under 28 U.S.C.A. § 2255 was subsequently filed in the sentencing court attacking the validity of the judgment of conviction and sentence because the indictment did not set out the name of the person with whom appellant dealt in making the illegal narcotics transaction. The lower court denied the motion, as a matter of law, upon the files and record of the original criminal case.
Indictments under various narcotics statutes, not naming the alleged purchaser, have been held valid. Clay v. United States, 10 Cir., 326 F. 2d 196, charging a sale under 26 U.S.C.A. § 4705 (a); Jackson v. United States, 8 Cir., 325 F. 2d 477, and Robison v. United States, 9 Cir., 329 F. 2d 156, each charging a sale of heroin, like this case, under 21 U.S.C.A. § 174; Rivera v. United States, 9 Cir., 318 F. 2d 606, charging a sale of marihuana under 21 U.S.C.A. § 176a.
The indictment in this case clearly alleged all of the statutory elements of the crime charged. It should also be noted that McDowell was represented at his criminal trial by counsel of his own choice and that the trial record before us does not disclose any attempt to procure, in advance of trial, the name of the alleged purchaser. Nor is there any showing in the record that McDowell was unable to adequately prepare his defense prior to trial because the name of the alleged purchaser was then unknown. During the trial the alleged purchaser testified fully about the transaction and McDowell later took the witness stand in his own behalf and categorically denied the sale. The indictment and the trial record provide ample protection to McDowell from the danger of double jeopardy. Clay v. United States, supra. The failure to name the alleged purchaser in the indictment cannot, from this record, be said to prejudice McDowell.
Affirmed.
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United States v. Dickerson, 337 F.2d 343 (6th Cir. 1964)
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Visente M. Flores v. United States, 338 F.2d 966 (10th Cir. 1964)
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Casias v. United States, 331 F.2d 570 (10th Cir. 1964)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rivera v. United States, 318 F.2d 606 (9th Cir. 1963)
- Todd v. The Peninsular & Occidental S.S. Co., 326 F.2d 196 (5th Cir. 1963)
- Jackson v. United States, 325 F.2d 477 (8th Cir. 1963)
- Robison v. United States, 329 F.2d 156 (9th Cir. 1964)