Palomino v. United States

• Decision Date: 16 July 1963
• Docket Number: No. 18399.,18399.
• Parties: Albert Arroyo PALOMINO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

318 F.2d 613 (1963)

Albert Arroyo PALOMINO, Appellant, v. UNITED STATES of America, Appellee.

No. 18399.

United States Court of Appeals Ninth Circuit.

July 16, 1963.

Albert L. Boasberg, San Francisco, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, and David R. Nissen, Atty., Los Angeles, Cal., for appellee.

Before BARNES, HAMLEY and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

Albert A. Palomino appeals from an order denying his motion, made under 28 U.S.C. § 2255, to vacate consecutive sentences under which he is held in federal custody.

On June 11, 1958, a federal grand jury indictment was returned against Palomino and one Leonard Saldana, charging them in five counts with violations of 21 U.S.C. § 174, relating to the importation, receipt, concealment, purchase, sale or transportation of narcotic drugs.¹ Counts two to five charged them with "knowingly and unlawfully" selling and facilitating the sale of specified amounts of heroin to named individuals on specified dates which drugs, "as the defendants then and there well knew, had been imported into the United States of America contrary to United States Code, Title 21, section 174."

Count one of the indictment charged Palomino and Saldana as follows:

"Prior to April 28, 1958, and continuing to the date of the return of this indictment, the defendants ALBERT ARROYO PALOMINO and LEONARD SALDANA agreed, confederated and conspired together to commit offenses against the United States, as follows: to receive, conceal, sell, and facilitate the transportation, concealment and sale of narcotic drugs in violation of United States Code, Title 21, Section 174.

"The objects of said conspiracy were to be accomplished as follows: defendant ALBERT ARROYO PALOMINO would acquire heroin and would furnish the same to the defendant LEONARD SALDANA; the defendant SALDANA would make arrangements with persons in the Los Angeles and Orange County areas to sell said heroin to said persons and would receive money in exchange for said heroin."²

Palomino entered a plea of guilty to count one of this indictment. On June 13, 1961, a judgment of conviction was entered on this plea, and a sentence of imprisonment for fifteen years was imposed. The judgment also contained a provision dismissing, on motion of the Government, counts two, three, four and five.

On the same day Palomino entered a plea of guilty to a federal grand jury indictment charging him with jumping bail, in violation of 18 U.S.C. § 3146. A judgment of conviction was thereupon entered and a sentence of imprisonment for five years was imposed, the sentence to run consecutively to that imposed for the narcotic law violation.

Nearly ten months later Palomino filed his section 2255 motion. He alleged: (1) count one of the indictment charging violations of the narcotic law is fatally defective because it does not contain all the essential elements of the crime intended to be charged, as defined in 21 U.S.C. § 174; (2) since the narcotic law count to which he pleaded guilty is fatally defective and must be dismissed, the bail jumping charge must also be dismissed "because without count one (1) there is no violation of Section 3146, Title 18, U.S.C."

The district court held that these contentions were without merit. On appeal Palomino renews his contention that count one of the narcotic law indictment is fatally defective.³ Specifically, he argues that this count is deficient because it omits allegations that the narcotic drug was imported contrary to law, that Palomino knew of such illegal importation, and that he fraudulently and knowingly conspired.

Section 174 defines three kinds of offenses, namely: (1) fraudulently or knowingly importing or bringing any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law; (2) receiving, concealing, buying, selling, or in any manner facilitating the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law; and (3) conspiring to commit any of the acts defined in (1) or (2) in violation of the laws of the United States.

Count one, quoted above, charges Palomino with conspiring to commit some of the acts defined in clause 2 of section 174, as summarized above. The precise acts he was charged with having conspired to commit are the receipt, concealment, sale and facilitation of the transportation, concealment and sale of narcotic drugs "in violation of United States Code, Title 21, Section 174."

In order to prove such a charge it is necessary for the Government to prove that the defendant had knowledge of the illegal importation. See Hernandez v. United States, 9 Cir., 300 F.2d 114, 121. This is true because one does not violate section 174 by receiving, concealing, etc., narcotic drugs, unless he knows the same to have been imported or brought into the United States contrary to law.

But the question here is whether an indictment which fails to allege, specifically, that the defendant had knowledge of the illegal importation, but rests on the necessary inclusion of that element by reason of the words "in violation of section 174," must be held fatally defective.

On the authority of Medrano v. United States, 9 Cir., 285 F.2d 23, 26, we conclude that such an indictment is not fatally defective. The count of the indictment involved in Medrano is indistinguishable from that which is here being challenged.⁴ In holding that such a charge is sufficient, this court said:

"The sufficiency of an indictment is to be determined on the basis of practical rather than technical considerations, and it is not the law that to charge conspiracy to commit an offense, all the elements be alleged. * * *"⁵

Palomino argues that Medrano is in direct conflict with the later opinion of this court in Hernandez, referred to above, and that Medrano has therefore been overruled. This is not true. Hernandez was not concerned with the sufficiency of an indictment, but...