United States v. Rosenson

• Citation: 291 F. Supp. 867
• Decision Date: 16 August 1968
• Docket Number: Crim. A. No. 30448.
• Parties: UNITED STATES of America v. Randolph Erwin ROSENSON.
• Court: U.S. District Court — Eastern District of Louisiana

291 F. Supp. 867

UNITED STATES of America v. Randolph Erwin ROSENSON.

Crim. A. No. 30448.

United States District Court E. D. Louisiana, New Orleans Division.

August 16, 1968.

Louis C. LaCour, U. S. Atty., Harry Connick, Asst. U. S. Atty., New Orleans, La., for the United States.

G. Wray Gill, Sr., George M. Leppert, New Orleans, La., Camille F. Gravel, Jr., Gravel & Doggett, Alexandria, La., for defendant.

HEEBE, District Judge:

After his trial by the Court without a jury on July 20, 1967, the defendant was found guilty on October 11, 1967, of all three counts in an indictment, each count of which charged him with violating 18 U.S.C. § 1407.¹ A pre-sentence investigation was ordered, and sentencing was set for January 24, 1968, but was continued to February 21, 1968, and then to April 3, 1968, on defendant's motions. On April 3, 1968, prior to sentencing, the defendant filed a motion for a new trial and a motion in arrest of judgment. Sentencing was again continued pending the determination of these motions. Prior to oral argument on the defendant's motions, the government moved to dismiss those motions. Oral argument was held on the government's motion and the defendant's opposition thereto, and the matter was submitted.

F.R.Crim.P. 33 governs motions for new trials and provides:

"A motion for a new trial based on any other grounds other than newly discovered evidence shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period."

F.R.Crim.P. 34 governs motions in arrest of judgment and provides:

"The motion in arrest of judgment shall be made within 7 days after verdict or finding of guilty, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 7-day period."

F.R.Crim.P. 45(b) governs enlargement of time and provides:

"The court may not extend the time for taking any action under Rules * * * 33, 34 * * * except to the extent and under the conditions stated in them."

The government argues that since we granted no extension of time within the seven-day time limit, the motions are untimely filed and should not be heard. A host of decisions abiding by the strict time limitations set forth in the rules are cited by the government in support of its argument. The government's contention is correct. A motion for new trial and a motion in arrest of judgment must be filed within seven days after verdict or finding of guilty.

However, it is also settled that the substance of the pleadings and not their labels are controlling. Marteney v. United States, 216 F.2d 760 (10th Cir. 1954). Cf. Johnson v. United States, 344 F.2d 401 (5th Cir.1965); Scarponi v. United States, 313 F.2d 950 (10th Cir.1963). This principle is a recurrent theme permeating all areas of the law and is not open to quarrel. Under this doctrine the substance of a pleading governs its consideration, and if a pleading is mislabeled, the misnomer will be ignored. Thus, if the substance of the defendant's motions reveals that they are not motions for new trial or arrest of judgment, the time limitations of Rules 33 and 34 have no application. Hence, we turn as we must to the substance of the defendant's motions.

We pause only to quote the pertinent provisions of 18 U.S.C. § 1407.

"No citizen of the United States * * * who has been convicted of a violation of any of the narcotic or marihuana laws of the United States, or of any State thereof, the penalty for which is imprisonment for more than one year, shall depart from or enter into or attempt to depart from or enter into the United States, unless such person registers, under such rules and regulations as may be prescribed by the Secretary of the Treasury with a customs official, agent, or employee at a point of entry or a border customs station. Unless otherwise prohibited by law or Federal regulation such customs official, agent, or employee shall issue a certificate to any such person departing from the United States; and such person shall, upon returning to the United States, surrender such certificate to the customs official, agent, or employee present at the port of entry or border customs station."

The same four grounds are urged in support of both the motion for new trial and the motion in arrest of judgment. The first ground urged in support of the defendant's motions is that the indictment does not charge an offense. F.R.Crim.P. 12(b)(2) provides that the failure of an indictment to charge an offense may be raised at any time during the pendency of the proceedings. Thus, it is proper for the defendant to raise this issue at this time even though he does so by pleadings labeled as a motion for new trial and a motion in arrest of judgment. Finn v. United States, 256 F.2d 304 (4th Cir. 1958); Hotch v. United States, 208 F.2d 244, 14 Alaska 574 (9th Cir.1953); United States v. Holmes, 110 F.Supp. 233 (S.D.Tex.1953).²

However, while this contention may be properly raised at this time, it is totally without merit. The defendant contends that the indictment fails to state an offense because it alleges a conviction of Louisiana Revised Statutes 40:(27) (962) and that there is no such Louisiana statute. The defendant had actually been convicted under Louisiana Revised Statutes 14:27. While the indictment does erroneously cite the Louisiana statute under which the defendant was convicted, it is clearly nothing more than a technical defect which did not prejudice the defendant in any way. The indictment plainly sets out the nature of the Louisiana conviction in that it charges the defendant with having been convicted of attempted possession of narcotics under Louisiana law. The defendant was clearly apprised of the charge against him and was by no means surprised as evidenced by his defense of this prosecution and by the fact that he himself only discovered this technical error at this late date. The indictment also clearly acts as a bar to a subsequent prosecution for this offense. "The cynically technical approach which formerly enshrouded the consideration of even the plainest and simplest indictments, and, in many instances, made a mockery of simple justice, no longer governs their consideration. On the contrary, the trial court and this court must examine into, and determine, the validity of attacks upon indictments, esspecially of this kind, from the broad and enlightened standpoint of common sense and right reason rather than from the narrow standpoint of petty preciosity, pettifogging, technicality or hair splitting fault finding." Parsons v. United States, 189 F.2d 252, 253 (5th Cir.1951). "The cases are unanimous in holding that merely technical defects are waived when no objection is made to them at trial." United States v. Laverick, 348 F.2d 708, 714 (3rd Cir.1965). The indictment here cannot be dismissed at this time merely because it did not correctly cite the Louisiana statute under which the defendant was convicted. United States v. Elade Realty Corp., 66 F.Supp. 630 (E.D.N.Y.1946), aff'd, 157 F.2d 979 (2d Cir.). It is, of course, proper for us to dispose of this contention at this time. Since a motion for new trial on the basis of newly discovered evidence may be disposed of without a hearing on the merits, Smith v. United States, 124 U.S.App.D.C. 57, 361 F.2d 74 (D.C.Cir.1966), it is obviously proper to dispose of an argument such as this one, which is patently untenable, in the same fashion. Therefore, we will not further consider on oral argument the defendant's first ground urged in support of his motions.

The defendant's second ground is that he was not convicted of any of the narcotic or marihuana laws of the State of Louisiana. The defendant was convicted of the general offense of an attempt to commit a crime which, he claims, is not a part of the narcotic or marihuana laws of Louisiana, which laws, he contends, are found in, and limited to, Title 40 of the Louisiana Revised Statutes. Therefore, he concludes one of the essential elements of 18 U.S.C. § 1407 is missing.

This argument is, in substance, a contention that the indictment fails to state an offense. It is elementary that an indictment must allege each element of the offense. The sufficiency of the indictment is a question of law which is determined from the face of the indictment. United States v. Lamont, 236 F.2d 312 (2d Cir.1956); Hilderbrand v. United States, 261 F.2d 354 (9th Cir.1958). The issue here is whether the description of the Louisiana conviction may be ignored as mere surplusage. If so, then there can be no infirmity in the indictment which, in other respects, tracks the language of the statute. However, an examination of the cases readily reveals that factual allegations, similar in nature to those in the present indictment, cannot be severed as surplusage. Marteney v. United States, 216 F.2d 760 (10th Cir.1954); United States v. Rider, 282 F.2d 476 (9th Cir.1960); United States v. Barnett, 258 F.Supp. 455 (M.D.Tenn.1965); United States v. Smith, 228 F.Supp. 345 (E.D.La.1964). "Words that are employed in an indictment that are descriptive of that which is legally essential to the charge in the indictment cannot be stricken out as surplusage." United States v. Root, 366 F.2d 377, 381 (9th Cir.1966). Here the indictment contains a critical description of the alleged narcotic violation conviction. It cannot be ignored as mere surplusage. Thus, the question is presented as to whether or not the indictment states an offense; more particularly whether or not attempted possession of narcotics is a violation of any of the narcotic or marihuana laws of the State of Louisiana. We do not attempt to resolve this issue at this time. We will await further briefing and argument on this point. At this time we are merely holding that the second ground urged in support of the defendant's motion is, in substance, a claim that the indictment fails to state an offense. Under ...