United States v. Davis, Crim. No. 26932.

• Decision Date: 02 September 1971
• Docket Number: Crim. No. 26932.
• Citation: 330 F. Supp. 899
• Parties: The UNITED STATES v. Harold Hubert DAVIS.
• Court: U.S. District Court — Northern District of Georgia

330 F. Supp. 899

The UNITED STATES v. Harold Hubert DAVIS.

Crim. No. 26932.

United States District Court, N. D. Georgia, Atlanta Division.

September 2, 1971.

John W. Stokes, Jr., U. S. Atty., Robert L. Smith, Asst. U. S. Atty., Atlanta, Ga., for plaintiff.

Peter E. Rindskopf, Atlanta, Ga., for defendant.

ORDER

EDENFIELD, District Judge.

The grand jury indictment charges that defendant received, concealed, and facilitated the transportation and concealment of marijuana "on or about the 22nd day of December, 1970 in the Northern District of Georgia," in violation of 21 U.S.C. § 176a (1964). Section 176a was repealed October 27, 1970, but the repealing act specifically states the prosecutions for any violation of § 176a occurring prior to the effective date of repeal —May 1, 1971—are not abated by the repeal. Drug Control Act of 1970, 84 Stat. 1291. Defendant was arrested December 22, 1970.

Defendant has filed in this court a motion to dismiss the indictment on the grounds that prosecution under it would lead defendant to self-incrimination in violation of the Fifth Amendment. He argues that the force of the provision in § 176a pursuant to which he was indicted depends upon his knowledge that marijuana was brought into the United States contrary to law. That law, he says, is the Marihuana Tax Act, 26 U.S. C. § 4741 et seq., and defendant claims that compliance with it would lead to a substantial risk of self-incrimination since Georgia laws forbid the possession of dangerous drugs of this nature. Under such circumstances, says defendant, the government cannot require compliance with the Marihuana Tax Act and, therefore, cannot make criminal a failure to so comply.

In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), petitioner Leary was convicted of knowingly transporting and facilitating the transportation and concealment of marijuana which had been illegally brought into the United States, in violation of 21 U.S.C. § 176a, and with failure to pay the transfer tax on marijuana imposed by the Marihuana Tax Act, in violation of 26 U.S.C. § 4744(a) (2). The Supreme Court considered two questions: (1) whether petitioner was denied due process by the application of that part of 21 U.S.C. § 176a which provides that defendant's possession of marijuana is presumptively sufficient evidence both that the marijuana was illegally imported and that defendant knew of the illegal importation, unless defendant can rebut the presumption; (2) whether the conviction for failure to comply with the Marihuana Tax Act violated Leary's Fifth Amendment privilege against self-incrimination. The Court reversed the conviction based on violation of 21 U.S.C. § 176a, holding that the presumption provision was unconstitutional, and remanded the case to the Fifth Circuit for further proceedings. The Court reversed outright the conviction based on violation of the Marihuana Tax Act.

Defendant has not been harmed by the presumption provision of § 176a, so that part of Leary is not of concern here. The Court in Leary reversed the conviction based on the Marihuana Tax Act because petitioner there had been faced with a choice of complying with the Act, thereby giving incriminating information which would be made available on request to state and local officials, or of complying with various federal regulations prohibiting him from acquiring marijuana under any conditions. The Court found that, faced with this choice, petitioner would have been justified in giving precedence to the Act and that in so doing he would, perforce, have undergone a very substantial risk of self-incrimination since practically all states forbid the possession of marijuana in any amount. The Court noted that the recent cases of Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L. Ed.2d 889 (1968), Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed. 2d 906 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L. Ed.2d 923 (1968), held that when compliance with a federal statute entails a very substantial risk of self-incrimination, a plea of the Fifth Amendment privilege against self-incrimination provides a complete defense to a prosecution based on failure to comply with that statute. In Marchetti and Grosso federal law required that information regarding compliance with the federal wagering tax be furnished state and local authorities on demand. In Haynes compliance with the federal firearms registration law immediately threatened prosecution under applicable companion federal statutes. Therefore, the Court in Leary held that the assertion of the Fifth Amendment privilege was a complete defense to a prosecution based on non-compliance with the Marihuana Tax Act.

In the case before this court, however, defendant is not charged with violation of the Marihuana Tax Act. Rather, he is charged with receiving, concealing, and facilitating the transportation and concealment of marijuana in violation of 21 U.S.C. § 176a. If the charges are proven, defendant would be guilty even if he did not himself violate the Marihuana Tax Act. It is perfectly possible to receive, conceal or facilitate the transportation and concealment of marijuana knowing it was illegally imported without violating the requirement to pay the transfer tax on the marijuana. Compliance with § 176a — that is, refraining from receiving, concealing or facilitating the transportation or concealment of marijuana — would not lead to any incrimination whatsoever. Therefore, defendant's motion to dismiss the indictment because it would lead to a violation of the Fifth Amendment privilege against self-incrimination must be denied. United States v. Reyes, 280 F. Supp. 267 (S.D.N.Y.1968); see Witt v. United States, 413 F.2d 303 (9th Cir. 1969).

Defendant also moves this court for an order, pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, directing the government to specify the exact times when, and the exact places where, defendant allegedly committed the offensive acts for which he is charged.

Rule 7(f) provides, in part, that: "The court may direct the filing of a bill of particulars." Motions requesting the bill are directed to the discretion of the court, and the court may exercise its discretion to order the filing of the bill for the purposes of: (1) informing defendant of the facts constituting the offense and the nature of the charge with sufficient particularity to enable the preparation of an adequate defense; (2) avoiding or minimizing the danger of surprise at trial; and (3) perfecting the record so as to bar a subsequent prosecution for the same offense. United States v. Bearden, 423 F.2d 805 (5th Cir. 1970); Hickman v. United States, 406 F.2d 414 (5th Cir. 1969), cert. den. 394 U.S. 960, 89 S.Ct. 1309, 22 L.Ed.2d 561 (1969).

Prior to 1966 a court could direct the filing of a bill of particulars under Rule 7 only upon a showing of cause. The Note of the Advisory Committee on Rules concerning the 1966 amendment which eliminated the need to show cause states:

"The amendment to the first sentence eliminating the requirement of a showing of cause is designed to encourage a more liberal attitude by the courts toward bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases. For an illustration of wise use of this discretion see the opinion by Justice Whittaker written when he was a district judge in United States v. Smith, 16 F.R.D. 372 (W.D.Mo.1954)." 18 U.S. C.A. Rule 7, p. 326.

In Smith the information charged that on August 29, 1954, at Kansas City, Missouri in the Western District of Missouri, defendant transferred a narcotic drug and a marijuana cigarette in violation of federal law. On motion of defendant, the court ordered the government to furnish a bill of particulars stating, among many other detailed items, the time of day when, and the exact place where, defendant allegedly committed the acts for which he was charged. The court said:

"Without definite specification of the time and place of commission of the overt acts complained of * * * there may well be difficulty in preparing to meet the general charges of the information, and some danger of surprise." At 375.

Since the motion for a bill of particulars is directed to the discretion of the court, it is not surprising that the cases vary on the matter of granting motions which seek the exact time and place for the commission of alleged offensive acts. However, it seems that in a number of cases dealing with indictments that charge conspiracy the courts have denied motions seeking such particulars as exact time and place, while in a number of cases dealing with indictments that charge the commission of overt acts alone, the courts have been more sympathetic to such requests. See United States v. Williams, 309 F.Supp. 32, 35-36 (N.D.Ga.1969); compare, e. g., United States v. Roberts, 264 F.Supp. 622 (S.D.N.Y.1966) with United States v. Bozza, 234 F.Supp. 15 (E.D.N.Y.1964) and with United States v. Figueroa, 204 F.Supp. 641 (S.D.N.Y.1962). The reasoning may be that it is far more difficult to ascertain with precision the date and place a conspiracy "occurs", than the date and place of an overt act alone.

A case particularly relevant for present purposes is United States v. Wilson, 20 F.R.D. 569 (S.D.N.Y.1957). There defendant Gregory was charged with unlawfully receiving, possessing, concealing, and facilitating the transportation and concealment of heroin in violation of 21 U.S.C. § 174, which in relevant part differs from 21 U.S.C. § 176a only in that it deals with narcotics rather than marijuana. Gregory moved the court, in part, for a bill of particulars in which the government would be required to state the place where he had allegedly received, possessed, concealed, and facilitated the transportation and concealment of the narcotic drug. The government argued that if defendant's motion...