U.S. v. Huff

• Decision Date: 28 April 1975
• Docket Number: No. 74-2834,74-2834
• Citation: 512 F.2d 66
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy Ray HUFF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 66

512 F.2d 66

UNITED STATES of America, Plaintiff-Appellee, v. Billy Ray HUFF, Defendant-Appellant.

No. 74-2834.

United States Court of Appeals Fifth Circuit.

April 28, 1975.

P. Bruce Kirwan, Federal Public Defender, J. Hue Henry, Asst. Federal Public Defender, Atlanta, Ga., for defendant-appellant.

John W. Stokes, U. S. Atty., James E. Baker, Gale McKenzie, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, and MURRAH ^* and WISDOM, Circuit Judges.

MURRAH, Circuit Judge:

Appellant Huff was indicted, tried, convicted, and sentenced, on two counts for offenses enumerated in 21 U.S.C. § 841(a)(1). Count I charged that Huff alone "on the 15th day of January 1974 . . . did unlawfully distribute about one and one-half (11/2) grams, net weight, more or less, of 3,4 methylenedioxy amphetamine, a Schedule I controlled substance." Count II charged that Huff and five others "on the 17th day of January, 1974 . . . did unlawfully possess, with intent to distribute about 449 grams, gross weight, more or less, of methylenedioxy amphetamine, a Schedule I controlled substance." After guilty pleas by three of those charged, Huff and two codefendants proceeded to trial, where they argued, by motions to acquit and by appropriate objections to instructions, that Count II does not charge a crime and is void, because "methylenedioxy amphetamine," as distinguished from "3,4 methylenedioxy amphetamine," is not a controlled substance the possession of which is prohibited by law. The trial court rejected this argument, telling the jury that the words "methylenedioxy amphetamine" in Count II "should be described as 3,4 methylenedioxy amphetamine, the same substance as described in Count One" and with this observation, submitted both counts.

On appeal, Huff reasserts his contention with respect to Count II and argues that the evidence on this void Count II infected his trial on Count I. We agree that Count II is fatally defective and reverse the conviction as to that count. But we do not think the evidence on Count II prejudiced his trial on Count I, and the conviction on Count I is affirmed. For reasons hereafter stated, however, we remand for resentencing.

The basis for Huff's conviction on both counts was evidence from undercover drug agents who testified concerning purchase from Huff and confiscation from his codefendants' apartment of a substance commonly known to drug purveyors as "M.D.A." The chemical definition of this substance is "3,4 methylenedioxy amphetamine," and it is so designated in the list of controlled substances in the statute. 21 U.S.C. § 812, Schedule I(c)(1). According to testimony by the government's chemists, "methylenedioxy amphetamine" is a different drug; and nowhere in the statute is it listed as a controlled substance.

The prosecution admits that the substance was misdescribed in Count II. But it contends that this was merely a typographical error and that Count II, when read together with Count I as part of the entire indictment, meets the required test of sufficiently apprising Huff of the charge against him and protecting him against double jeopardy. In support of its argument, it cites cases from this and other Circuits. United States v. Miller, 491 F.2d 638 (5th Cir. 1974); Robbins v. United States, 476 F.2d 26 (10th Cir. 1973); United States ex rel. Harris v. Illinois, 457 F.2d 191 (7th Cir. 1972), cert. denied, 409 U.S. 860, 93 S.Ct. 147, 34 L.Ed.2d 106 (1972); United States v. Driscoll, 454 F.2d 792 (5th Cir. 1972); United States v. Farber, 306 F.Supp. 48 (N.D.Cal.1969). In all these cases the test was satisfied, because the indictment charged a crime slightly different but closely related to the one on which proof was offered.

Federal Rules of Criminal Procedure 7(c) states that the indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." Courts have generally understood and implemented this rule so as to let common sense rather than mere technicalities govern the determination of the sufficiency of an indictment. But even a liberal construction of this simple rule does not dispense with the requirement that an indictment or each count thereof allege all the essential elements of an offense. United States v. Clark, 412 F.2d 885, 891 (5th Cir. 1969). To be sure, "(a)llegations made in one count may be incorporated by reference in another count." Fed.R.Crim.P. 7(c). But each count of an indictment must be regarded as if it were a separate indictment and must stand on its own content without dependence for its validity on the allegations of any other count not expressly incorporated. See Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Greene,497 F.2d 1068 (7th Cir. 1974); United States v. Roberts, 465 F.2d 1373 (6th Cir. 1972). Here, the challenged count of the indictment alleges nothing more than an act which is legal. And such a failure to allege a crime cannot be remedied by proof or curative instructions which attempt to incorporate other counts not expressly referred to in the challenged count. A grand jury indictment may be amended only by resubmission to a grand jury, "unless the change is merely a matter of form." Russell v. United States, 369 U.S. 749, 770-771, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Stirone v. United States, 361 U.S. 212, 215-217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887).

The addition of the numbers "3,4" would have indeed saved this count, but we cannot regard this defect as a mere technicality, for the chemical and legal definition of these substances is itself technical and requires precision. In sum, the variance between non-criminal conduct, as alleged in Count II, and criminal conduct, which the government attempted to prove under Count II, rises above the level of form, however minute the omission may have been. See Van Liew v. United States, 321 F.2d 664, 670-674 (5th Cir. 1963). The conviction on Count II must be reversed.

In support of his contention that the evidence on Count II fatally infected Count I, Huff refers to the rule excluding evidence of crimes not charged. And see United States v. Broadway, 477 F.2d 991 (5th Cir. 1973); United States v. Abshire, 471 F.2d 116 (5th Cir. 1972). But these cases specifically recognize the well established exceptions for evidence of a " system of criminal activity of which the crime charged is a part" and "elements of the crime charged." United States v. Broadway, supra, at 994 of 477 F.2d. See also United States v. Bryant, 490 F.2d 1372 (5th Cir. 1974); United States v. Smith, 433 F.2d 1266, 1270 (5th Cir. 1970); United States v. Sutherland, 428 F.2d 1152, 1156 (5th Cir. 1970). The evidence presented with regard to Count II (possession with intent to distribute) could properly show, as to Count I (distribution), a systematic criminal activity or the required elements of possession and intent. The relevance of such evidence is particularly clear because Huff's entrapment defense on Count I highlighted the elements of intent and predisposition. And we think "the probative value of the evidence . . . outweigh(s) the possibility of prejudice to the defendant." United States v. Broadway,supra, at 995 of 477 F.2d. As we said in United States v. Meriwether, 486 F.2d 498, 504 (5th Cir. 1973): "Whenever a defendant is tried on a multi-count indictment there is the possibility that the jury will infer guilt on all counts from guilt on one of the individual counts, but this danger has not led us to abandon the practice of using multi-count indictments in proper circumstances." The trial court here clearly charged the jury that each count must be considered "independently of the other"; and Huff does not challenge the sufficiency of the evidence as to Count I. We conclude that the evidence admitted pursuant to Count II did not prejudice Huff's trial on Count I, and the conviction on Count I is affirmed.

The appellant attached to his brief an ex parte "memorandum" formally addressed to the trial judge from the Assistant United States Attorney on the subject "Billy Ray Huff Government's Sentencing Recommendation in Criminal No. 74-55." After sentencing, this memorandum was discovered in the court clerk's file where it was an undocketed and apparently inadvertent inclusion. The instrument was not a part of the record, nor was it certified here. There is no actual proof that the trial judge received it or considered it, but the government does not deny submitting it. And no one suggests...