Scott v. United States

• Citation: 231 F. Supp. 360
• Decision Date: 15 June 1964
• Docket Number: Civ. No. 214-64.
• Parties: John SCOTT, Jr., Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of New Jersey

231 F. Supp. 360

John SCOTT, Jr., Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 214-64.

United States District Court D. New Jersey.

June 15, 1964.

John Scott, Jr., pro se.

MADDEN, Chief Judge:

Petitioner, John Scott, Jr., is a federal prisoner confined in the United States Penitentiary at Atlanta, Georgia, under a sentence of ten years imprisonment imposed by this Court on December 2, 1960, upon his conviction as a second offender of the federal narcotic laws. Pursuant to Section 2255 of Title 28 U.S.C., he now moves to vacate and set aside this conviction and sentence on the ground that the indictment under which he was convicted and sentenced was so defective on its face as not to charge an offense under any reasonable construction.

On October 20, 1960, the petitioner was indicted by the Federal Grand Jury. The indictment (Criminal No. 395-60) contained five separate counts. Each of the first four counts charged the petitioner with the unlawful sale of heroin on a separate occasion without a written order as required under 26 U.S.C. § 4705(a), in violation of 26 U.S.C. § 7237(a); and the fifth count charged the petitioner with knowingly and feloniously receiving and concealing and facilitating the concealment of heroin, knowing the same to have been imported unlawfully into the United States, in violation of 21 U.S.C. § 174. On October 28, 1960, the petitioner appeared before this Court with appointed counsel and entered a plea of guilty to the first count of the indictment and a plea of not guilty to the remaining four counts.

On November 29, 1960, the United States Attorney filed an information charging the petitioner as a second offender under 26 U.S.C. § 7237(c) (2), alleging a previous conviction for the unlawful sale of narcotics under 26 U.S.C. § 4705(a) in the United States District Court for the Eastern District of Pennsylvania in 1952. At the hearing on the information held on December 2, 1960, the petitioner acknowleged his prior conviction as alleged, whereupon he was adjudged guilty of the first count of the indictment under 26 U.S.C. § 4705(a) and guilty as a second offender under the information. He then was sentenced by this Court to the mandatory minimum term of ten years imprisonment prescribed by 26 U.S.C. § 7237 for second offenders, and the four remaining counts of the indictment were dismissed.

The petitioner specifically contends that the first count of the indictment (to which he pled guilty and under which he was convicted) was fatally defective in that it failed to set forth the name of the purchaser to whom he allegedly unlawfully had sold the heroin specified in the indictment.¹ Thus, the Court is confronted with the legal issue of whether such omission renders the indictment so defective as to warrant the vacation and setting aside of the petitioner's conviction and sentence

Generally, a motion to vacate a judgment of conviction and sentence under Section 2255, 28 U.S.C., is a collateral proceeding which cannot be utilized to question the sufficiency of an indictment, unless the indictment is so defective on its face as not to charge an offense under any reasonable construction. This general proposition especially applies in an instance where the petitioner voluntarily and understandingly has entered a plea of guilty to the indictment, for the plea of guilty not only serves as a basis of his conviction but constitutes an admission of all nonjurisdictional facts alleged in the indictment and a waiver of all nonjurisdictional defects and defenses. Walker v. United States, 154 F.Supp. 648 (D.C., N.J., 1957), aff. 251 F.2d 616 (C.A., 3rd Cir., 1958), cert. den. 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed. 2d 1365; United States v. Gallagher, 183 F.2d 342 (C.A., 3rd Cir., 1950), cert. den. 340 U.S. 913, 71 S.Ct. 283, 95 L.Ed. 659. As stated by the Court of Appeals for the Ninth Circuit in the recent case of Robison v. United States, 329 F.2d 156, 158, which was decided on March 12, 1964:

"It is settled in this and other circuits that a plea of guilty to an indictment is an admission of all non-jurisdictional facts alleged in the charge, and that the judgment and sentence may not be collaterally attacked under 28 U.S.C. § 2255 for technical or non-jurisdictional defects."

Nevertheless, despite the entry of a plea of guilty, if an indictment is so defective on its face as not to charge an offense under any reasonable construction, or, if it appears from the face of the indictment that no federal offense was committed, then not only is the indictment vulnerable to a collateral attack by proceedings under Section 2255 but the motion to vacate the judgment of conviction and sentence should be granted. Marteney v. United States, 216 F.2d 760 (C.A., 10th Cir., 1954).

Principally, the petitioner relies upon the case of Lauer v. United States, 320 F.2d 187 (C.A., 7th Cir., 1963) wherein the Court of Appeals reversed the District Court's denial of a motion to vacate a sentence imposed on a defendant who was charged with and convicted of the unlawful sale of narcotics, on the ground that the indictment failed to set forth the name of the person to whom the unlawful sale of narcotics was made. While the Court of Appeals expressed the opinion that the identity of the purchaser is not an element of the offense of an unlawful sale of narcotics under 26 U.S.C. § 4705 (a), it asserted that because of the type of offense involved, the purchaser's name is a factor which, in the absence of an allegation excusing or overcoming its omission, is essential to sufficiently apprise the defendant of what he must be prepared to meet and to enable him to plead a judgment under the indictment as a bar to any subsequent prosecution for the same offense.

It is generally held that the test of sufficiency of an indictment is not whether it could have been made more definite and certain but whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and in the event that subsequent proceedings are brought against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Cochran and Sayer v. United States, 157 U.S. 286, 15 S.Ct. 628, 39 L.Ed. 704 (1895); Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606 (1896); United States v. Perlstein, 39 F.Supp. 965 (D.C., N.J., 1941), aff. 126 F.2d 789 (C.A., 3rd Cir., 1942), cert. den. 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752; United States v. Angelo, 153 F.2d 247 (C.A., 3rd Cir., 1946); United States v. Krepper, 159 F.2d 958 (C.A., 3rd Cir., 1946), cert. den. 330 U.S. 824, 67 S.Ct. 865, 91 L.Ed. 1275; United States v. Smith, 232 F.2d 570 (C.A., 3rd Cir., 1956). In determining the sufficiency of an indictment practical rather than technical considerations are observed by the Court; and while the indictment need not be perfect it must charge all the essential elements of the offense intended.

An examination of the indictment in question discloses that the offense charged was couched substantially in the language of the proscribing statute (26 U.S.C. § 4705(a)), embodying all of the essential elements of the crime. Undoubtedly, it is better practice to set forth in the indictment the name of the person to whom the unlawful sale of narcotics was made, if such is known, or, if...