U.S. v. Korn
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Citation | 557 F.2d 1089 |
| Docket Number | No. 76-3848,76-3848 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Peter Harold KORN, Defendant-Appellee. |
| Decision Date | 15 August 1977 |
Page 1089
v.
Peter Harold KORN, Defendant-Appellee.
Fifth Circuit.
Page 1090
Robert W. Rust, U. S. Atty., Bruce E. Wagner, Asst. U. S. Atty., Miami, Fla., Hugh Culverhouse, Jr., Jacksonville, Fla., for plaintiff-appellant.
Michael S. Tarre, Miami, Fla., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before THORNBERRY, GODBOLD and FAY, Circuit Judges.
GODBOLD, Circuit Judge:
This case is another spinoff from Oviedo v. U. S., 525 F.2d 881 (CA5, 1976).
The appellee Peter Korn was indicted for knowingly and intentionally attempting to distribute a controlled substance, 40,000 units of methaqualone. The defense moved to dismiss the indictment, and for purposes of the motion admitted that Korn had entered into negotiations with a government undercover agent and a government informer for the purchase of 40,000 methaqualone tablets. The negotiations were "successful" and it was agreed that Korn would purchase the tablets from the informer for $20,000.
The next day Korn gave the agent $20,000 and in return received four cartons which he (Korn) believed to contain genuine methaqualone tablets but actually contained only noncontrolled simulated methaqualone tablets. When Korn placed the cartons in his car he was arrested. 1 The district court granted the defendant's motion to dismiss on the basis of this court's decision in Oviedo. The government appealed pursuant to 18 U.S.C. § 3731. 2
At the threshold, the government argues that dismissal of the indictment pursuant to Fed.R.Crim.P. 12(b)(1) was improper insofar as it was based on facts which should have been developed at trial. However, as we pointed out in U. S. v. Miller, 491 F.2d 638 (CA5, 1974), "(T)he propriety of granting a motion to dismiss an indictment under F.R.Crim.Pro. Rule 12 by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact." 491 F.2d at 647 (footnote omitted). If a question of law is involved, then consideration of the motion is generally proper. U. S. v. Jones, 542 F.2d 661, 664 (CA6, 1976). The parties to this appeal, as well as the district court, consistently
Page 1091
treated Korn's motion to dismiss as involving a straightforward question of law, i. e., given this court's decision in Oviedo, does the admitted transfer of a noncontrolled substance as a...To continue reading
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U.S. v. McCormack, Criminal No. 97-10168-NG.
...— threshold issues, as to which the facts are uncontested, which comprise questions of law and not fact. See e.g., United States v. Korn, 557 F.2d 1089, 1090 (5th Cir.1977) (holding that the propriety of granting a motion to dismiss an indictment by pretrial motion depends largely upon whet......
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U.S. v. Stevens, Cr. Nos. 10–0200–01
...upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact.’ ” United States v. Korn, 557 F.2d 1089, 1090 (5th Cir.1977) (quoting United States v. Miller, 491 F.2d 638, 647 (5th Cir.1974)); see also United States v. Flores, 404 F.3d 320, 324 (......
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United States v. Calderon-Avalos, EP-18-CR-3156-PRM
...of law or involves determinations of fact." United States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005) (quoting United States v. Korn, 557 F.2d 1089, 1090 (5th Cir. 1977)). "If a question of law is involved, then consideration of the motion is generally proper." Id.III. ANALYSIS Defendant m......
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U.S. v. Everett, 81-2644
...that they are engaged in by persons not in violation of the law. Oviedo, 525 F.2d at 885; Hough, 561 F.2d at 595; United States v. Korn, 557 F.2d 1089, 1091 (5th Cir.1977); accord United States v. Innella, 690 F.2d 834, 835 (11th Cir.1982); United States v. Deangelis, 430 F.Supp. 327, 331 (......
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U.S. v. McCormack
...— threshold issues, as to which the facts are uncontested, which comprise questions of law and not fact. See e.g., United States v. Korn, 557 F.2d 1089, 1090 (5th Cir.1977) (holding that the propriety of granting a motion to dismiss an indictment by pretrial motion depends largely upon whet......
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U.S. v. Pennell, 83-1243
...controlled substance can constitute an attempt to possess with intent to distribute under Sec. 846. See id. at 908; United States v. Korn, 557 F.2d 1089, 1091 (5th Cir.1977). The government must, of course, prove the defendant's subjective intent to purchase (or sell) actual narcotics beyon......
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U.S. v. Garcia, 97-80727.
...issue, "as to which the facts are uncontested, which comprise questions of law and not fact." Id.; see also United States v. Korn, 557 F.2d 1089, 1090 (5th Cir.1977)(propriety of granting a motion to dismiss an indictment pretrial depends on whether the issue involves law or determination o......
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U.S. v. Levin, 91-5034
...Corp., 785 F.2d 1448, 1452 (9th Cir.), cert. denied, 478 U.S. 1007, 106 S.Ct. 3301, 92 L.Ed.2d 715 (1986); United States v. Korn, 557 F.2d 1089, 1090 (5th Cir.1977).2 The dissent's misconception is reflected in its erroneous restatement of the trial court's decision to read "the district co......