Brown v. United States, 25545.

• Decision Date: 06 January 1969
• Docket Number: No. 25545.,25545.
• Citation: 403 F.2d 489
• Parties: Kenneth Jordan BROWN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

403 F.2d 489 (1968)

Kenneth Jordan BROWN, Appellant, v. UNITED STATES of America, Appellee.

No. 25545.

United States Court of Appeals Fifth Circuit.

November 13, 1968.

Rehearing Denied January 6, 1969.

Joseph C. Shaffer, Carl E. F. Dally, Briscoe, Dally & Shaffer, Houston, Tex., for appellant.

James R. Gough, Asst. U. S. Atty., Morton L. Susman, U. S. Atty., Ronald J. Blask, Malcolm R. Dimmitt, Asst. U. S. Attys., Houston, Tex., for appellee.

Before BELL and SIMPSON, Circuit Judges, and ROBERTS, District Judge.

ROBERTS, District Judge:

Appellant was indicted, with three other persons, on a four-count indictment charging (1) conspiracy to conceal and facilitate the transportation and concealment of heroin after it had been imported contrary to law; (2) the importation of heroin in violation of 21 U.S.C. § 174 (1964); (3) the violation of this same statute by concealment and transportation of illegally imported heroin; and (4) the purchase of heroin in violation of 26 U.S.C. § 4704 (1964). After entering a plea of not guilty, appellant was tried alone before a jury and was found guilty on all four counts. On the first three counts he was sentenced to fifteen years imprisonment to be served concurrently with a ten year sentence on count four.

Appellant contends that count one of the indictment was fatally defective because it omits a fundamental element of the offense under 21 U.S.C. § 174 — knowledge by the defendant that the heroin had been imported into the United States contrary to law. The pertinent part of count one charged appellant with conspiring to "knowingly conceal and facilitate the transportation and concealment of heroin * * * after it had been brought into the United States contrary to law in violation of 21 U.S.C. § 174." Appellant contends that this indictment is fatally defective because it fails to allege that he knew of the illegal importation of the drug. We find this contention is without merit.

The fundamental purpose of an indictment — to inform the defendant of the charges against him so that he may adequately defend against them — is met by this indictment. Moreover, an indictment for conspiracy to commit a criminal offense need not spell out the elements of that offense in the same particularity that would be required from an indictment of the substantive offense. Wong Tai v. United States, 1927, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545. See also, United States v. Mixon, 6 Cir., 1967, 374 F.2d 20; Davis v. United States, 6 Cir., 1958, 253 F.2d 24; Stein v. United States, 9 Cir., 1962, 313 F.2d 518.

Appellant argues as a second basis for reversal that the trial judge erred in charging the jury that they could impute to appellant the possession of heroin by a co-conspirator. We find this contention to be without merit. The prosecution's theory in this case clearly was based on appellant's actual possession of the heroin, and not on possession imputed to him. The evidence indicates that appellant was in physical possession of the heroin. The heroin was handed to appellant in Victoria, and he carried it to the automobile where the heroin was found at his feet at the time of arrest. Furthermore, since no objection was made before the jury retired, appellant must show that the error alleged was plain error affecting his substantial rights. Knapp v. United States, 5 Cir., 1962, 311 F.2d 71. Appellant clearly did not make this showing here.

Appellant's third contention for reversal is that the trial judge erred in overruling a motion to suppress evidence obtained through an unlawful arrest and subsequent search and seizure. We disagree. There was abundant evidence to support the trial judge's conclusion that there was sufficient probable cause to justify the arrest and that therefore the search incident to a lawful arrest was valid. At the time of the arrest, the arresting officers had before them, in a nutshell, the following reasons to suspect that a crime was being committed: information from an...