Overstreet v. United States, 19885.

• Decision Date: 12 September 1963
• Docket Number: No. 19885.,19885.
• Citation: 321 F.2d 459
• Parties: Tillman OVERSTREET, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

321 F.2d 459 (1963)

Tillman OVERSTREET, Appellant, v. UNITED STATES of America, Appellee.

No. 19885.

United States Court of Appeals Fifth Circuit.

August 5, 1963.

Rehearing Denied September 12, 1963.

M. Gabriel Nahas, Jr., Houston, Tex., for appellant.

Frederick J. Morton, Asst. U. S. Atty., El Paso, Tex., Ernest Morgan, U. S. Atty., San Antonio, Tex., M. H. Raney, Asst. U. S. Atty., El Paso, Tex., for appellee.

Before HUTCHESON, Circuit Judge, LUMBARD, Chief Judge,^* and BROWN, Circuit Judge.

LUMBARD, Chief Judge.

Tillman Overstreet appeals from a judgment of conviction and a sentence of twelve years after trial before Judge Thomason and a jury in the District Court for the Western District of Texas for conspiring to "receive and conceal Marihuana, and to facilitate the transportation and concealment, after importation, of said Marihuana, knowing the same to have been imported illegally" in violation of 21 U.S.C. § 176a. The two questions raised are whether Overstreet was prejudiced by the action of the court in severing part of the count on which he was convicted, and whether there was sufficient evidence to support the jury's verdict. We affirm.

Overstreet and eight others were charged in the first count of a four-count indictment, filed December 11, 1961, with conspiracy to violate 21 U.S.C. § 176a and 26 U.S.C. § 4744(1),¹ both laws relating to marihuana. The parts of the first count pertinent to Overstreet's claim of error read:

"THE GRAND JURY CHARGES:

"That commencing prior to May 18, 1961, and continuing thereafter until on or about November 1, 1961, in El Paso County, Texas, within the El Paso Division of the Western District of Texas, JOSE CARLOS INGLADA, AUGUSTIN ALEJANDRO ARIZA, DANIEL ROMANOFF, LARRY BOYKIN, LEON KENNETH BAILEY, ERNEST HUNT, ALBERT ABDALLA, THELMA LAW and TILLMAN OVERSTREET, conspired, with intent to defraud the United States of America, to knowingly and clandestinely introduce into the United States, Marihuana, which had not been invoiced as required by law, and to receive and conceal, and to facilitate the transportation and concealment, after importation, of said Marihuana, knowing the same to have been imported and brought into the United States contrary to law and without having been invoiced as required by law, in violation of Section 176(2) of Title 21 2, United States Code, and further, to acquire and obtain Marihuana, by transfer, from some person or persons to your Grand Jurors unknown, without having paid the transfer tax imposed thereon by law, in violation of Section 4744(1) of Title 26, United States Code * *."

Overstreet was named in four of the thirty-two overt acts which were then set out.

We hold that the indictment in this case is not duplicitous as count one alleges only one offense, the conspiracy. The fact that the alleged conspiracy includes the violation of more than one federal statute does not make it duplicitous. Williams v. United States, 238 F.2d 215, 218 (5 Cir. 1956), cert. denied, 352 U.S. 1024, 77 S.Ct. 589, 1 L.Ed.2d 596 (1957); Masi v. United States, 223 F.2d 132 (5 Cir.), cert. denied, 350 U.S. 919, 76 S.Ct. 208, 100 L. Ed. 805 (1955). Of course, where two substantive offenses are named in the same count there is duplicity as was the case in United States v. Goodman, 285 F.2d 378, 380 (5 Cir. 1960). See also United States v. Gibson, 310 F.2d 79, 80 fn. 1 (2 Cir. 1962). But even when there is such an erroneous misjoinder of offenses, there can be no reversal of a conviction unless the duplicity is harmful, Rule 52(a), Federal Rules of Criminal Procedure; see United States v. Gibson, supra.

The grand jury, presumably guided by its counsel the United States Attorney, failed to avoid the dilemma which Chief Judge Tuttle pointed out in Williams v. United States, supra, where the indictment alleged a conspiracy to violate seven federal statutes, the one misdemeanor statute carrying a lesser penalty. In the instant case, guilt for conspiracy to violate 21 U.S.C. § 176a carries with it a minimum five-year sentence and a maximum twenty-year sentence and a fine of $20,000 for a first offense, whereas guilt for conspiracy to violate 26 U.S.C. § 4744(a), failing to pay the required tax, carries with it a minimum jail sentence of two years and a maximum of ten years and a fine of $20,000. See 26 U.S.C. § 7237(a) as amended in 1956. The problem in Williams v. United States, supra, as well as in United States v. Shackelford, 180 F.Supp. 857 (S.D.N.Y. 1957) involved the length of the sentence for a single conspiracy to violate two separate statutes.

Such an issue did not arise in the instant case since the dilemma presented by the grand jury was resolved. Before the trial commenced the United States Attorney moved to sever "from this trial" the portion of count one which referred to 26 U.S.C. § 4744(1). While defense counsel at first consented, he changed his mind a few minutes later and objected although he gave no reason for doing so.

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 (1962), provided nothing is thereby added to the indictment. See United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 74 L.Ed. 1076 (1930); United States v. Ballard, 322 U.S. 78, 88, 90-91, 64 S.Ct. 882, 88 L.Ed. 1148 (1944) (Stone, C. J., dissenting). The "severance" which occurred in this case was not an amendment which added any charges to the indictment and was therefore proper.

Nor does it avail Overstreet to point out that count one was otherwise treated as to certain other co-defendants. When the case was called for trial, seven of Overstreet's co-defendants pleaded guilty to the conspiracy count as well as to substantive counts which did not name Overstreet.²

These pleas of guilty in no way modified the charge against Overstreet. He still stood accused of conspiracy to violate § 176a. It was proper for the district judge to "sever" count one as the United States Attorney suggested and to dispose of the charges against each defendant according to the pleas of guilty which were thereafter entered. Even had they been prejudiced by this course — which none of them has even claimed so far as we know — Overstreet may not be heard to complain about any improper disadvantages which may have been incurred by them.

Whether the severance of part of count one leaves remaining anything on which Overstreet could later be further prosecuted is a question with which we need not deal unless and until that extremely unlikely event comes to pass.

In a supplemental brief filed May 23, the day when this appeal was argued, Overstreet raised for the first time a second contention that there was insufficient evidence for the case to go to the jury and that the district judge erred in denying his motion for acquittal at...