United States v. Butler
| Decision Date | 16 April 1962 |
| Citation | 204 F. Supp. 339 |
| Parties | UNITED STATES of America v. William BUTLER, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, for the United States; Jonathan L. Rosner, Asst. U. S. Atty., of counsel.
Anthony F. Marra, Legal Aid Society, for defendant; Leon B. Polsky, New York City, of counsel.
This is a prosecution under section 1403 of Title 18, enacted by Congress in 1956.
The one count indictment charged defendant with "unlawfully, wilfully and knowingly using a communication facility, to wit, a telephone, in attempting to commit an act constituting an offense, the penalty for which is provided in Title 21, United States Code, section 174." The case was tried to the Court upon defendant's waiver of a jury. Rule 23 (a), Fed.R.Crim.P. 18 U.S.C.
Section 1403 makes it unlawful to use "any communication facility in committing or in causing or facilitating the commission of, or in attempting to commit, any act or acts constituting an offense or a conspiracy to commit an offense the penalty for which is provided in" various sections of the United States Code dealing with narcotics, including section 174 of Title 21.1 Each separate use of a communication facility is made a separate offense and the term communication facility is defined to include "any and all public and private instrumentalities used or useful in the transmission of writings, signs, signals, pictures, and sounds of all kinds by mail, telephone, wire, radio, or other means of communication."
Section 174 prescribes a penalty for anyone who receives, conceals, buys, or sells a narcotic drug "knowing the same to have been imported or brought into the United States contrary to law."
The issue in this case is whether knowledge of illegal importation, an essential element of the crime in a prosecution under section 174, is an element of the crime in a prosecution under section 1403 where the underlying crime is an attempt to violate section 174, and if so, whether the Government established the requisite knowledge.
The only evidence introduced in this case was the testimony of an agent of the Federal Bureau of Narcotics. He testified to three telephone conversations, two of which he believed to have been with defendant and one of which he believed to have been with defendant's brother, and to a meeting later the same day with defendant at which defendant was placed under arrest as soon as he identified himself by the name used during the telephone conversations.
The agent testified that while he was in a certain apartment, engaged in his official duties, the telephone rang. The apparently absent tenant of the apartment was not identified. The agent answered the telephone and the following conversation ensued:
About twenty minutes later the phone rang again, the agent answered it, heard what he believes to have been a different voice, and the following conversation ensued:
The person at the other end then disconnected.
About ten minutes later, at approximately eight o'clock, the phone rang a third time, the agent answered it and heard what he believed to have been the voice of the first caller, and the following conversation ensued:
At this point the agent inquired about Ray's telephone number, was told a number, and the conversation continued:
The agent testified that he arrived at the designated corner at twenty past eight. At twenty-five past eight The agent, together with another agent, approached the defendant and asked him whether he was "Willie from Philadelphia." When he replied in the affirmative, the agent identified himself and placed defendant under arrest.2
With that evidence the Government rested. Defendant also rested and moved for an acquittal.
Only two cases appear to have been reported involving prosecutions under section 1403. In United States v. Contrades, 196 F.Supp. 803 (D.Hawaii 1961), the Court held that knowledge of illegal importation is an essential element of the offense. In United States v. Robles, 185 F.Supp. 82 (N.D.Cal.1960), the question whether knowledge of illegal importation is an essential element of the crime did not arise because defendant was charged with using a communication facility in attempting to import narcotics. From the facts stipulated the Court found that defendant wrote a letter from California to one Ibarra, in Mexico, inquiring whether Ibarra had narcotics, and the price per gram at which he would sell them. The letter was found on Ibarra when he was arrested in Mexico in a laboratory manufacturing heroin. The question that confronted the Court in Robles was whether the mere mailing of a letter, the first step in a course of conduct designed to culminate in the unlawful importation of a narcotic drug, was sufficient to constitute an attempt as opposed to preparation. The Court held that under section 1403 an attempt could be made by the mere use of a communication facility.
Looking to the words of the statute, it is clear that section 1403 incorporates by reference the requirement of knowledge. Section 1403 prohibits the use of a communication facility in an attempt to commit "an offense the penalty for which is provided" by section 174. One must, therefore, look to section 174 to determine whether the communication facility was used in an attempt to commit an offense penalized by section 174. Section 174 prescribes a penalty solely for one who purchases narcotics "knowing the same to have been imported * * * contrary to law."
The Government's contention that Congress intended to substitute use of a communication facility for unlawful importation as a basis of federal jurisdiction in prosecutions under section 1403 is without support in the statute or the legislative history. The section, as enacted, is entitled "Use of Communication facilities — penalties". The House Report contains a single explanatory sentence of the section. It is headed "Penalties for use of communication facilities" and states, "Penalties would be provided for persons using any communication facility in committing a violation of the Federal statutes applicable to narcotic drugs and marihuana." 1956 U.S.Code Cong. & Adm.News, pp. 3274, 3276. The section was not debated in the House. In the Senate the section was inserted in lieu of a wiretapping provision originally contained in the bill. Those sponsoring the bill strongly urged adoption of a provision authorizing, subject to court order, wiretapping and use of evidence obtained as a result of wiretapping in narcotics prosecutions, on the ground that such a provision was necessary for the apprehension and conviction of the large narcotics traffickers who conducted all transactions by means of the telephone. 102 Cong.Rec. 9015-16, 9042-43 (1956). The provision was vehemently opposed on the floor of the Senate as an intrusion on the basic liberties guaranteed by the Constitution and a provision similar to section 1403 was adopted as a compromise. Id. at 9402-04. The wiretapping provision, contained in the original bill, was not designed to provide an additional basis for federal jurisdiction and there is nothing to indicate that the Senate intended the provision it substituted to do so.3
Moreover, if section 1403 were construed as not incorporating the definition of the offense as given in the underlying section, it would be open to the challenge that it is void for vagueness. For if the section defining the underlying offense is not incorporated into section 1403, section 1403 fails to define the offense in connection with which use of a communication facility is made a crime. Indeed, it fails to define any offense whatsoever.
It is well established that a criminal statute must be definite as to the acts which it prohibits. See United States v. Cardiff, 344...
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Mims v. United States
...2 Cir., 185 F.2d 629, 633, 28 A.L. R.2d 1041 (1955), cert. den. 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688; United States v. Butler, D.C.S.D.N.Y., 204 F. Supp. 339, 343 (1962); People v. Sullivan, 173 N.Y. 122, 65 N.E. 989, 63 L.R.A. 353; People v. Werblow, 241 N.Y. 55, 148 N.E. 786, 789; Com......
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United States v. King
...the provision is unconstitutionally vague and uncertain. This Court agrees with the language of Judge Palmieri in United States v. Butler, 204 F.Supp. 339 (S.D. N.Y.1962), in which he states that 1403 might be challenged for vagueness if it were construed as not incorporating the definition......
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United States v. Clay
...Mims v. United States, 375 F.2d 135, 148 (5th Cir., 1967), and strongly corroborative of criminal purpose, United States v. Butler, 204 F.Supp. 339, 344 (S.D.N.Y. 1962); A.L.I. Model Penal Code, had been committed. But this test need not be phrased in terms of an attempt-preparation dichoto......
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United States v. Mandujano
...8 Cir., 113 F.2d 687; United States v. Duane, D.C., 66 F.Supp. 459, 464, 465. 185 F.2d at 632, 633. Also see United States v. Butler, S.D N.Y.1962, 204 F. Supp. 339, 343, where the court considered "whether the conduct of the defendant went sufficiently far towards the commission of the cri......