United States v. Bailey

• Decision Date: 13 April 1960
• Docket Number: No. 12810.,12810.
• Citation: 277 F.2d 560
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Cromwell BAILEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

277 F.2d 560 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. James Cromwell BAILEY, Defendant-Appellant.

No. 12810.

United States Court of Appeals Seventh Circuit.

April 13, 1960.

Glenn C. Fowlkes, Edward R. Gayles, Chicago, Ill., for appellant.

Charles R. Le Master, Asst. U. S. Atty., Kenneth C. Raub, U. S. Atty., Fort Wayne, Ind., Martin H. Kinney, George Vann, Asst. U. S. Attys., Hammond, Ind., for appellee.

Before HASTINGS, Chief Judge, KNOCH, Circuit Judge, and PLATT, District Judge.

PLATT, District Judge.

The defendant-appellant was tried to the court on a two count indictment. The indictment charged:

Count I:

"On or about June 24, 1959, in the Northern District of Indiana, Joe Gillom, James Cromwell Bailey, and Dorothea Scott did knowingly, wilfully, feloniously and unlawfully sell, dispense and distribute a quantity of a narcotic drug, to-wit: 1 gram and 180 milligrams, more or less, of heroin hydrochloride, for the sum of $35.00, to Anthony D. Johnson, which said quantity of heroin hydrochloride was then and there not from the original stamped package, in violation of Section 4704(a) of Title 26 of the United States Code."

Count II:

"On or about June 24, 1959, in the Northern District of Indiana, Joe Gillom, James Cromwell Bailey, and Dorothea Scott did fraudulently, knowingly, wilfully and feloniously receive, conceal, buy, sell and facilitate the transportation, concealment and sale of a quantity of a narcotic drug, to-wit: 1 gram and 180 milligrams, more or less, of heroin hydrochloride, after said quantity of heroin hydrochloride had been imported into the United States and knowing said quantity of heroin hydrochloride to have been imported into the United States contrary to law, in violation of Section 174, Title 21, United States Code."

Joe Gillom and Dorothea Scott, co-defendants pleaded guilty and testified for the government. After hearing the evidence the court found the defendant guilty on both counts and sentenced him to the custody of the Attorney General for a period of 20 years and imposed a fine of $2,000.00 upon Count I, and twenty-five years upon Count II, the sentences to run concurrently. The government introduced in evidence pursuant to § 7237(a),¹ Title 26 U.S.C.A., the indictment and prior conviction of the defendant wherein the defendant was sentenced to five years for violation of § 2553(a) (now § 4704(a) and § 2554(a) (now § 4705), Title 26 U.S.C.A., and § 174, Title 21 U.S.C.A.

Defendant now contends:

1. That Counts I and II fail to allege an offense against the United States.

2. That the heroin admitted into evidence was not proved to be the same heroin with which he was charged with dealing; and

3. That the evidence was insufficient to prove the defendant guilty beyond a reasonable doubt.

Count I of the indictment is based upon § 4704(a), Title 26 U.S.C.A. which reads as follows:

"Packages

"(a) General requirement. — It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found."

The defendant contends that the indictment fails to negative the first exception "in the original stamped package." (Emphasis supplied.) The defendant failed to present this omission to the trial court. It may be properly raised for the first time in this court. Fed.Rules Crim.Proc. rule 12(b), 18 U.S.C.A.; United States v. Calhoun, 7 Cir., 1958, 257 F.2d 673; Jones v. United States, 10 Cir., 1959, 263 F.2d 959; Davidson v. United States, 10 Cir., 1959, 263 F.2d 959; Burley v. United States, 10 Cir., 1959, 263 F.2d 912; Robinson v. United States, 10 Cir., 1959, 263 F.2d 911. But see United States v. Wora, 2 Cir., 1957, 246 F.2d 283. In determining the validity of this indictment the court must look to the purpose of the statute, which was "to impose taxes for the sale of an elusive subject, to require conformity to a prescribed method of sale and delivery calculated to disclose or make more difficult any escape from the tax." Nigro v. United States, 1928, 276 U.S. 332, 345, 48 S.Ct. 388, 391, 72 L.Ed. 600. In Alston v. United States, 1927, 274 U.S. 289, 47 S.Ct. 634, 71 L.Ed. 1052, the court held that the Revenue Act to collect a tax on narcotics was constitutional and in referring to a section thereof, which was worded the same as the statute in the instant case, the court said at page 294 of 274 U.S., at page 635 of 47 S.Ct.:

"These provisions are clearly within the power of Congress to lay taxes and have no necessary connection with any requirement of the act which may be subject to reasonable disputation. They do not absolutely prohibit buying or selling. * * *"

Applying these principles of law to Count I of the indictment in the instant case to charge unlawful selling of narcotics would not be an offense. The offense described in the statute must be interpreted in the light of the purpose of the statute which was to "lay taxes." The offense consists not only of selling or dispensing narcotics, but in selling or dispensing narcotics not "in the original stamped package or from the original stamped package." (Emphasis supplied.) To omit not "in the original stamped package" omits a necessary element of the offense. (Emphasis supplied.) These words are descriptive of the offense and must be included in the charge. Hale v. United States, 4 Cir., 1937, 89 F.2d 578. The government maintains this allegation is not necessary, relying upon the provisions of § 4724(c), Title 26 U.S.C.A. which states in part:

"* * * Provided further, That it shall not be necessary to negative any of the aforesaid exemptions in any complaint, information, indictment, or other writ of proceedings laid or brought under this subpart or sections 4701 to 4707, inclusive." (Emphasis supplied.)

Clearly this refers to the exemptions set forth in § 4724(c),² Title 26 U.S.C.A. The exceptions in § 4704, Title 26 are set forth in § 4704(b)(1)(2).³ These exceptions need not be negatived in the indictment since they do not describe the offense. United States v. Winnicki, 7 Cir., 1945, 151 F.2d 56, 57, relied upon by the government, is clearly distinguishable. There the defendant was charged with unlawfully receiving the transfer of automobile tires and the unlawful possession thereof without surrendering or without having certificates "issued by the local War Price and Rationing Board * * * in accordance with the provisions of * * * Ration Order 1A as amended." At page 58 the court said:

"Ration Order 1A makes all transfers of tires illegal `unless\' permitted by an order of the War Production Board. Since the word `unless\' means except (as dictionaries define it), all transfers are illegal except authorized ones. Hence it is an exception, a matter of defense, a matter of proof of a negative factor, which takes the accused without the charge. As such, it is not an element of the crime."

Count I in the instant indictment would not state an offense if it alleged the selling of the narcotic drug without setting forth not in and from the original stamped package. This exception described an element of the crime as we have already explained. However, the charge need not negative the exceptions set forth in § 4704(b)(1)(2), Title 26 U.S.C.A. which are matters of defense, as in the Winnicki case it was necessary to deny the order permitting the transfer by the War Production Board, which is a defense.

Count II of the indictment charges a violation of § 174, Title 21 U.S.C.A. which reads in part as follows:

"Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law * * * shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. For a second or subsequent offense (as determined under section 7237(c) of the Internal Revenue Code of 1954), the offender shall be imprisoned not less than ten or more than forty years and, in addition, may be fined not more than $20,000."

This part of the statute contains two offenses,

1. "to import or bring any narcotic drug into the United States contrary to law;

2. "or * * * sells any narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law."

Count II reads exactly on the statute and charges the second offense. No element is omitted. A similar indictment was held sufficient in the following cases: Brown v. United States, 9 Cir., 1955, 222 F.2d 293; United States v. Rodgers, 5 Cir., 1955, 218 F.2d 536; and Rodriguez v. United States, 5 Cir., 1955, 218 F.2d 810.

Defendant further contends that the heroin admitted in evidence was not properly identified as the heroin which was obtained from one of the co-defendants, Joe Gillom. The narcotic agent Johnson testified that he received the package from Joe Gillom on June 24, 1959, who had been designated by the defendant to deliver the heroin to Johnson; that he paid Gillom $35.00 for the heroin and received a tin-foil package which contained powder from Gillom. Johnson joined the other agents, delivered the package to Agent Leek, and a field test of the contents of the package was performed which indicated the powder contained an opiate. The package containing the powder was placed in an envelope which was identified as Government's Exhibit 1-C which was initialed by Leek and Johnson. All of the agents drove back to Chicago, Illinois, from Gary,...