Marsh v. United States

• Decision Date: 25 March 1965
• Docket Number: No. 21124.,21124.
• Citation: 344 F.2d 317
• Parties: Kenneth R. MARSH and Marion W. Martinez, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

344 F.2d 317 (1965)

Kenneth R. MARSH and Marion W. Martinez, Appellants, v. UNITED STATES of America, Appellee.

No. 21124.

United States Court of Appeals Fifth Circuit.

March 25, 1965.

Clyde W. Woody, Houston, Tex., for appellants.

Morton L. Susman, James R. Gough, Asst. U. S. Attys., Woodrow Seals, U. S. Atty., Thomas L. Morrill, Asst. U. S. Atty., Houston, Tex., for appellee.

Before RIVES and BROWN, Circuit Judges, and NOEL, District Judge.

RIVES, Circuit Judge:

Marsh and Martinez were convicted under a one-count indictment which charged in part:

"That within the five years last past, in the Laredo Division of the Southern District of Texas, and elsewhere, within the jurisdiction of this Court, one KENNETH R. MARSH, and one MARION W. MARTINEZ, also known as `Tony,\' both being herein indicted, and one John Taylor Malone, not herein indicted, hereinafter sometimes called the conspirators, did unlawfully, wilfully, and knowingly combine, conspire, confederate, and agree together, with one another, and each with the other, and with other persons to the Grand Jurors unknown, to commit the following and other offenses against the laws of the United States:

"To knowingly conceal and facilitate the transportation and concealment of heroin hydrochloride after it had been brought into the United States contrary to law, knowing the same to have been brought into the United States contrary to law, in violation of Section 174, Title 21, United States Code.

"The said conspiracy was in process of operation and in execution from on and prior to March 25, 1963, to on or about April 20, 1963, and was substantially as follows:

"From time to time, one or more of the conspirators would acquire quantities of heroin hydrochloride in the Republic of Mexico; one or more of the conspirators would then smuggle and bring into the United States such heroin hydrochloride; one or more of the conspirators would then conceal, transport and facilitate the transportation and concealment of such heroin hydrochloride to various places within the United States.

"Pursuant to the said unlawful combination, confederation and conspiracy, the following and other overt acts were committed: Eight overt acts were listed." (Emphasis supplied.)

Marsh was sentenced to eight years' imprisonment and Martinez to thirteen years'. Their contentions on appeal focus on two rulings of the district court: 1, in striking from the indictment the words "and other" emphasized in the part just quoted where those words appeared before "offenses" and also before "overt acts"; and 2, in admitting evidence obtained by an arrest and search of the defendants claimed to be illegal.

Striking Words from The Indictment.

On August 30, 1963, a month and a half before trial, the defendants' attorney called to the attention of the court his motion for a bill of particulars describing the "other offenses" and the "other overt acts" alleged in the indictment. The court stated, "I should be inclined simply to strike out `and other' offenses," and said to defendants' attorney:

"And I suspect that if you and Mr. Morrill the Asst. U. S. Attorney will sit down and talk about this, you can work it out, and that I can perhaps correct it by an agreed amendment to the indictment. I think we can make minor changes that don\'t change the substance of it without resubmitting it, particularly if there is no subjection (sic)."

On September 6, 1963, some ten or more days before the trial began, the following colloquy occurred between court and counsel:

"THE COURT: Now, one more thing, Mr. Woody defendants\' attorney, in connection with the indictment. In one of the paragraphs of your motion, you complain of the fact that the indictment charges that the defendants conspired `to commit the following and other offenses against the laws of the United States\' — I am reading from lines 10 and 11 on the first page — and make the 22 point that other statutes, that is, statutes other than Section 174 of Title 21 may be referred to.

"I am inclined to the view that that\'s well taken, and I am inclined just to strike out the words `and other.\' That is agreeable with you, and will meet that point, will it not?

"MR. MORRILL: Your Honor, we are relying only on Title 21, Section 174, and we were planning to voluntarily supply particulars to that effect.

"THE COURT: Well, suppose I just strike out `and other,\' and there will be no need.

"MR. MORRILL: Yes, sir.

"THE COURT: Let\'s see: And I think the same thing is essentially true on the next page. Line 9, you set (sic), `and other overt acts,\' where you apparently refer to — you enumerate some eight and then say `and others.\'

"MR. MORRILL: We may have other overt acts in the proof, Your Honor.

"THE COURT: You can prove them, but you have to prove one you allege, do you not?

"MR. MORRILL: Yes, sir.

* * * * * *

"THE COURT: Hence, how does it help matters any to have `and other overt acts\' in there?

"MR. MORRILL: I agree with the Court, it doesn\'t help anything, but I don\'t believe it is prejudicial, either.

"THE COURT: I believe I will strike it out. Is that agreeable to you, Mr. Woody?

"MR. WOODY: Yes, Your Honor, it is."

Thereafter those words were considered as stricken and the court denied the defendants' motion for bill of particulars. It is not denied that striking the words "and other" obviated any need for a bill of particulars. The contention is that, even with the consent of the United States and of defendants' attorney, the court cannot legally so amend the indictment.

Rule 7(b), Fed.R.Crim.P., imposes the safeguards that, for a defendant to waive prosecution by indictment, he must do so "in open court," and "after he has been advised of the nature of the charge and of his rights."¹ Except as permitted by that rule, it is clear that one cannot be tried for an infamous crime unless on indictment. See U.S. Const. amend. V. Nothing can be added to an indictment, and its charges cannot be broadened even by consent. As said in United States v. Norris, 1930, 281 U. S. 619, 622, 50 S.Ct. 424, 425, 74 L.Ed. 1076:

"If the stipulation be regarded as adding particulars to the indictment, it must fall before the rule that nothing can be added to an indictment without the concurrence of the grand jury by which the bill was found. Ex parte Bain, 121 U.S. 1 7 S.Ct. 781, 30 L.Ed. 849."

The rule was accurately stated in Stirone v. United States, 1960, 361 U.S. 212, 215-217, 80 S.Ct. 270, 272-273, 4 L.Ed. 2d 252.

"Ever since Ex parte Bain, 121 U.S. 1 7 S.Ct. 781, 30 L.Ed. 849, was decided in 1887, it has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself. In that case, the court ordered that some specific and relevant allegations the grand jury had charged be stricken from the indictment so that Bain might be convicted without proof of those particular allegations.2

"2. Bain was indicted for making a false statement `with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs of said association * * *.\' After sustaining demurrers of Bain to the indictment, the trial court went on to say that `thereupon, on motion of the United States, by counsel, the court orders that the indictment be amended by striking out the words "the Comptroller of the Currency and" therein contained.\' By this amendment it was intended to permit conviction of Bain without proof that he had deceived the Comptroller as the grand jury had charged."

* * * * * *

"The Bain case, which has never been disapproved, stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him. See also United States v. Norris, 281 U.S. 619, 622 50 S.Ct. 424, 74 L.Ed. 1076; Cf. Clyatt v. United States, 197 U.S. 207, 219, 220 25 S.Ct. 429, 49 L.Ed. 726."

Another clear statement of the rule is contained in the dissenting opinion of Chief Justice Stone in United States v. Ballard, 1944, 322 U.S. 78, 90, 91, 64 S. Ct. 882, 888, 88 L.Ed. 1148:

"An indictment is amended when it is so altered as to charge a different offense from that found by the grand jury. Ex parte Bain, 121 U. S. 1 7 S.Ct. 781, 30 L.Ed. 849. But here there was no alteration of the indictment, Salinger v. United States, 272 U.S. 542, 549 47 S.Ct. 173, 71 L.Ed. 398, nor did the court\'s action, in effect, add anything to it by submitting to the jury matters which it did not charge. United States v. Norris, 281 U.S. 619, 622 50 S.Ct. 424, 74 L.Ed. 1076. In Salinger v. United States, supra, 548-9 47 S.Ct. p. 175, we explicitly held that where an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal from the jury\'s consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the indictment. See also Goto v. Lane, 265 U.S. 393, 402-403 44 S.Ct. 525, 68 L.Ed. 1070; Ford v. United States, 273 U.S. 593, 602 47 S.Ct. 531, 71 L.Ed. 793. Were the rule otherwise the common practice of withdrawing from the jury\'s consideration one count of an indictment while submitting others for its verdict, sustained in Dealy v. United States, 152 U.S. 539, 542 14 S.Ct. 680, 38 L.Ed. 545, would be a fatal error."

Nowhere has the principle been more clearly stated than by Chief Judge Lumbard of the Second Circuit, sitting by designation on this Circuit:

"It is clear that an indictment may not be amended except by resubmission to the grand jury. Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). But the Supreme Court has held that withdrawing a part of a charge from the consideration of the jury does not work an amendment of the indictment, Salinger v. United States, 272 U.S. 542, 548-549, 47 S.Ct. 173, 71 L.Ed. 398 (1926), provided nothing is thereby added to the

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