U.S. v. Busard, 74-3989
| Decision Date | 05 December 1975 |
| Docket Number | No. 74-3989,74-3989 |
| Citation | 524 F.2d 72 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David John BUSARD and Charles David Meyer, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William D. Smith, Atlanta, Ga. (Court-appointed), for Busard.
Milton E. Grusmark, Miami Beach, Fla., for Meyer.
John W. Stokes, U. S. Atty., John Milton Turner, Jr., and Robert A. Boas, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Georgia.
Before JONES, WISDOM and AINSWORTH, Circuit Judges.
Busard and Meyer, defendants-appellants, were convicted of knowingly and willfully possessing with intent to distribute a controlled substance, cocaine, in violation of 21 U.S.C. § 841(a)(1).
The contention on appeal that the indictment is duplicitous is without merit. The indictment, in pertinent part, reads as follows:
Busard and Meyer, aided and abetted by each other, knowingly and intentionally did possess with intent to distribute a controlled substance . . . .
The indictment did not charge the defendants with "aiding and abetting"; this language is merely a specification of the manner in which the defendants were guilty of the substantive offense of unlawful possession. As such, the use of this language is permitted by F.R.Crim.P. 7(c)(1). United States v. Bullock, 5 Cir. 1971, 451 F.2d 884, 888; United States v. Duke, 4 Cir. 1969, 409 F.2d 669, 671. Moreover, an objection of this nature, which was not made before the trial, is waived. F.R.Crim.P. 12(b)(2); United States v. Williams, 5 Cir. 1953, 203 F.2d 572, 573, Cert. denied, 346 U.S. 822, 74 S.Ct. 37, 98 L.Ed. 347.
Busard contends that an agent's inadvertent revelation to the jury, showing that Busard had previously been arrested, prejudiced their right to a fair trial. The trial court instructed the jury to disregard the statement about Busard's arrest and polled the jury to ascertain whether any juror felt that he or she could not disregard it. 1 Moreover there was such an abundance of inculpatory evidence that the harmless error rule applies, F.R.Crim.P. 52(a); United States v. Ratner, 5 Cir. 1972, 464 F.2d 169.
Both appellants argue that the cocaine seized by narcotics agents was improperly introduced into evidence. The Court finds, however, that there was a rational basis by which the jury could have found that the cocaine was connected to the defendants. See United States v. Montalvo, 2 Cir. 1960, 271 F.2d 922. The evidence was properly admitted.
The Court has considered all the other issues the appellants raised; each lacks sufficient merit to be discussed.
The judgments are affirmed.
1 The Court gave the following instruction:
The Court: Ladies and gentlemen, the statement of Mr. Banks, formerly special agent with the Drug Enforcement...
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...such as duplicity, must be raised prior to trial." United States v. Elam, 678 F.2d 1234, 1251 (5th Cir.1982) (citing United States v. Busard, 524 F.2d 72 (5th Cir.1975), cert. denied sub nom. Meyer v. United States, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); United States v. Willi......
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...court has consistently required that objections to the indictment, such as duplicity, must be raised prior to trial. United States v. Busard, 524 F.2d 72 (5th Cir. 1975); United States v. Williams, 203 F.2d 572 (5th Cir. 1953), cert. denied, 346 U.S. 822, 74 S.Ct. 37, 98 L.Ed. 347 (1953). S......
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