United States v. Isabella
Decision Date | 24 October 1962 |
Docket Number | Cr. No. 62-307-C. |
Citation | 210 F. Supp. 281 |
Parties | UNITED STATES of America v. Domenic ISABELLA, also known as Florio D. Isabella and Charles Kinteris. |
Court | U.S. District Court — District of Massachusetts |
W. Arthur Garrity, Jr., U. S. Atty., William J. Koen, Asst. U. S. Atty., for the United States.
Joseph Oteri, S. Myron Klarfeld, Boston, Mass., for defendant.
Domenic Isabella and Charles Kinteris each was named as a defendant in a five-count indictment. Counts 1 and 3 charged each defendant with violation of 26 U.S.C. § 4705(a). Counts 2 and 4 charged each defendant with violation of 21 U.S.C. § 174. Count 5 charged each defendant with violation of 26 U.S.C. § 7237, in that he allegedly conspired with other persons to violate both of the above-named statutes. Both defendants have filed motions to dismiss under Rule 12(f) sic of the Federal Rules of Criminal Procedure, on the ground that each count of the indictment is duplicitous.
26 U.S.C. § 4705(a) is expressed in the disjunctive, and provides as follows:
"It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate."
Counts 1 and 3 of the indictment are expressed in the conjunctive and charge that defendants "did sell and exchange * * * heroin, a narcotic drug." It has been firmly settled that an indictment is not vitiated by duplicity merely because framed in conjunctive averments which closely follow the language of the statute upon which the indictment is based. The contention that such an indictment is duplicitous was rejected by the Supreme Court of the United States in 1896, in Crain v. United States, 162 U.S. 625, at p. 636, 16 S.Ct. 952, at p. 955, 40 L.Ed. 1097, where the Court said:
* * *"
This reasoning also disposes of defendants' contentions with regard to...
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United States v. DiLaura
...the indictment is based. Crain v. United States, 162 U.S. 625, 636-37, 16 S.Ct. 952, 40 L.Ed. 1097 (1896); United States v. Isabella, 210 F.Supp. 281, 282-83 (D. Mass.1962). There is no merit to defendant's contention that 21 U.S.C. § 841 penalizes a state of mind in violation of the Fifth ......
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United States v. Hobbs, Crim. No. 74-129-T.
...substantially the language of the statute upon which the indictment is based. United States v. DiLaura, supra; United States v. Isabella, 210 F.Supp. 281 (D.Mass. 1962). The claim that 21 U.S.C. § 841 penalizes a state of mind in violation of the Fifth Amendment is also without merit. "Cong......