United States v. Mixon
Citation | 374 F.2d 20 |
Decision Date | 27 February 1967 |
Docket Number | No. 16979,16980.,16979 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ralph MIXON and Vera Hamilton, Defendants-Appellants. |
Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Ivan Barris, Detroit, Mich., Joseph W. Louisell, Detroit, Mich., on brief, for appellants.
Milton J. Trumbauer, Jr., Asst. U. S. Atty., Detroit, Mich., Lawrence Gubow, U. S. Atty., Detroit, Mich., on brief, for appellee.
Before EDWARDS, Circuit Judge, McALLISTER, Senior Circuit Judge and WEINMAN,* District Judge.
The jury found the defendants Mixon and Hamilton guilty as charged, after which defendant Mixon received a sentence of 10 years imprisonment and defendant Hamilton received a sentence of 5 years imprisonment.
In this appeal, the defendants urge two grounds for reversal, the first being that the indictment was fatally defective in that it failed to set forth one of the essential elements of the offense as provided in 21 U.S.C. § 174, namely, knowledge on the part of the defendants that the heroin had been imported or brought into the United States contrary to law.
In support of their argument, defendants rely upon Robinson v. United States, 263 F.2d 911 (10 Cir.1959) and United States v. Calhoun, 257 F.2d 673 (7 Cir. 1958); whereas the government relies upon Stein v. United States, 313 F.2d 518 (9 Cir.1962) and Davis v. United States, 253 F.2d 24 (6 Cir.1958).
It is true that the cases cited by defendants support their position and if this Court were to follow the law as stated in those cases a reversal would be required.3 However, in Stein v. United States, supra, 313 F.2d at page 521, the Court of Appeals for the Ninth Circuit, after considering each of the foregoing cases, stated:
This Court rejected defendant's argument that the indictment failed to charge an offense because it did not specifically charge that defendants conspired to carry on the business without paying a special tax as required by law. The Court stated, 253 F.2d at page 25:
In the case here on appeal, Count 1 of the indictment did recite the statute by code number and this Court adheres to its position, as quoted above in Davis, that such a reference to the specific section of the statute is sufficient.4
The second ground for reversal which defendants urge is that the District Judge committed plain error within the meaning of Rule 52(b), Federal Rules of Criminal Procedure, in the handling of the portion of the charge which dealt with imputation of possession by one conspirator to another and the portion of the charge which stated the presumption contained in 21 U.S.C. § 174 i.e., that when "the defendant is shown to have or have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."
After the District Judge had charged the jury, he conferred with counsel, and then called the jury back and further instructed them. One of the additional instructions, given at the request of the Government, pertained to the above...
To continue reading
Request your trial-
U.S. v. Fruehauf Corp.
...163; Goldberg v. United States, supra, 213. See United States v. Branan, 457 F.2d 1062, 1063-65 (6th Cir. 1972); United States v. Mixon, 374 F.2d 20, 22 (6th Cir. 1967); Davis v. United States, 253 F.2d 24, 25 (6th Cir. 1958). The indictment in the present case identified the object offense......
-
U.S. v. Arteaga-Limones
...denied, 372 U.S. 920, 83 S.Ct. 734, 9 L.Ed.2d 725 (1963); Tallman v. United States, 465 F.2d 282 (7th Cir. 1972); United States v. Mixon, 374 F.2d 20 (6th Cir. 1967). CONCLUSION For the reasons stated, the convictions and sentences imposed are CLARK, Circuit Judge, concurring in part and di......
-
United States v. Fine, 70-Cr-126.
...even if it does not allege all elements of the substantive offense which is the object of the conspiracy. See also United States v. Mixon, 374 F.2d 20 (6th Cir. 1967). This standard for the sufficiency of conspiracy indictments has been rejected in this circuit. United States v. Calhoun, 25......
-
United States v. Branan
...Contreras v. United States, 5 Cir., 213 F.2d 96; Reynolds v. United States, 5 Cir., 225 F.2d 123, 125. And see also United States v. Mixon, 374 F.2d 20 (6th Cir. 1967). It is clear that the indictment in the instant case meets the test established in Davis. We do not find that the allegatio......