Robison v. United States

• Decision Date: 29 April 1964
• Docket Number: No. 18902.,18902.
• Citation: 329 F.2d 156
• Parties: Dwight De Witt ROBISON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

329 F.2d 156 (1964)

Dwight De Witt ROBISON, Appellant, v. UNITED STATES of America, Appellee.

No. 18902.

United States Court of Appeals Ninth Circuit.

March 12, 1964.

As Amended on Denial of Rehearing April 29, 1964.

Dwight De Witt Robison, in pro. per.

Cecil F. Poole, U. S. Atty., and Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before MADDEN, Judge, Court of Claims, and BROWNING and

DUNIWAY, Circuit Judges.

On July 7, 1961 Robison pleaded guilty to the first count of a three-count indictment charging him with the unlawful sale of heroin. That count reads as follows:

"That on or about the 8th day of March, 1961, DWIGHT DEWITT ROBISON, hereinafter called `said defendant,\' did, in the City of Sacramento, County of Sacramento, in the Northern Division of the Northern District of California, and within the jurisdiction of this Court, sell or facilitate the sale of approximately 950 milligrams of Heroin, the said Heroin having been brought in or imported into the United States of America contrary to law, as said Defendant then and there well knew."

In July of 1963 he presented to the District Court a motion to vacate and set aside his sentence under 28 U.S.C. § 2255. This motion was denied on July 30 and Robison appeals. He has presented to this court a motion for appointment of counsel, on the ground that he is without funds to employ an attorney. He has also presented a brief and a reply brief prepared by himself. He is not proceeding with the appeal in forma pauperis, the court below having denied leave to appeal in forma pauperis and he having been able to pay the necessary filing fees. Robison's attack is entirely upon the sufficiency of the indictment. Upon examining his briefs we find that they are at least as good as many of the briefs that are presented to us by counsel, and are better than some. They fully and adequately cover the points that he made on his motion, and we think that under the circumstances there is no necessity for appointing an attorney to file additional briefs on his behalf. Accordingly, his motion for appointment of counsel is denied.

Robison makes five points as follows:

"1. That the indictment under which he was charged does not set forth in sufficient detail and particularity the nature and details of the offense charged.

"2. That the indictment is duplicitous in that it charges that appellant did `sell or facilitate the sale of approximately 950 milligrams of heroin.\'

"3. That the indictment was defective because it does not in any way show how and by what means appellant knew the heroin involved was illegally imported.

"4. That the indictment is fatally defective in that by failing to describe with particularity the details of the alleged crime, it does not enable appellant to plead former jeopardy against a future charge.

"5. That the indictment does not show the alleged offense to be in violation of any statute of the United States; therefore it does not charge a federal crime."

Points 1 and 4 can be considered together; they both are based upon a claim that the indictment does not sufficiently set forth the details of the offense charged. Robison lists the following defects: That the indictment does not state the person to whom the heroin was allegedly sold or for whom or with whom the facilitating of the sale was done; that the description of the locale as the City of Sacramento is insufficient; and that a more specific time than "on or about the 8th day of March, 1961" is required. His principal reliance is upon the decision of the Court of Appeals for the 7th Circuit in Lauer v. United States, 7 Cir., 1963, 320 F.2d 187. We held in Rivera v. United States, 9 Cir., 1963, 318 F.2d 606 that the name of the purchaser is not an essential element of the offense in a case charging the violation of 21 U.S.C. § 176a. We think that the same principle is applicable in this case where the charge is a...