United States v. Sterkel, 693-69.

• Decision Date: 14 October 1970
• Docket Number: No. 693-69.,693-69.
• Citation: 430 F.2d 1262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald H. STERKEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

430 F.2d 1262 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Donald H. STERKEL, Defendant-Appellant.

No. 693-69.

United States Court of Appeals, Tenth Circuit.

September 8, 1970.

Rehearing Denied October 14, 1970.

Leonard W. D. Campbell, Asst. U. S., Atty. (James L. Treece, U. S. Atty., with him on the brief) for plaintiff-appellee.

John D. Ward, Denver, Colo., for defendant-appellant.

Before BREITENSTEIN, HILL, and HOLLOWAY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Defendant-appellant Sterkel and three others were convicted by a jury of violating 18 U.S.C. § 371 by conspiring to sell and deliver a depressant or stimulant drug in violation of 21 U.S.C. § 331 (q) (2).

The district court denied Sterkel's motion to dismiss the information. The argument is that it did not allege sufficient facts to constitute a crime. An information charging a conspiracy is sufficient if it follows the statutory language and contains an adequate statement of an overt act to effectuate the object of the conspiracy. See Madsen v. United States, 10 Cir., 165 F.2d 507, 510. The requisite overt acts need not be criminal in themselves. See e. g., Jordan v. United States, 10 Cir., 370 F. 2d 126, 128, cert. denied 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 595. Here, the statutory language is used; the allegations of overt acts are adequate to inform the defendants of the nature of the charge; and the information, together with the record and judgment of conviction, is sufficient to protect against the possibility of double jeopardy. See Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 8 L.Ed.2d 240, and Flores v. United States, 10 Cir., 338 F. 2d 966.

Sterkel claims that he should have been granted a severance. In a motion filed prior to trial he said that co-defendants had made statements which would be used against him. Apparently on the assurance of the government that no such statements would be used, the trial court denied the motion. No statements were used and none of the defendants testified.

The prosecution evidence showed that a federal narcotics agent had arranged with defendant Sterkel and co-defendants Leese and Ice for the delivery and sale of LSD. Sterkel and Ice took the agent to the apartment of Linda Little, with whom Betz was living. Betz came to the door. They were admitted and there was some conversation. The agent testified that he could see Betz hand Sterkel a plastic bag containing blue tablets. Sterkel turned and held out the bag to the agent, who arrested him.

After the government had rested, co-defendant Betz called Linda Little as a witness. An oral motion for severance was made on the ground that Linda was an alter ego for Betz and that her testimony would be detrimental to Sterkel. The motion was denied.

Linda testified that on the day before the arrests Sterkel brought to the...