United States v. Walker, Crim. No. 24499.

• Decision Date: 27 May 1955
• Docket Number: Crim. No. 24499.
• Citation: 132 F. Supp. 432
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Charles E. WALKER, Defendant.

132 F. Supp. 432

UNITED STATES of America, Plaintiff, v. Charles E. WALKER, Defendant.

Crim. No. 24499.

United States District Court S. D. California, S. D.

May 27, 1955.

Albert E. Walkoe, San Diego, Cal., for petitioner.

Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., by Harry E. Steward, Asst. U. S. Atty., San Diego, Cal., for United States.

WEINBERGER, District Judge.

The defendant was tried before a jury, found guilty and on September 3, 1954, sentenced to two years imprisonment, committed to the custody of the Attorney General for the purpose of said imprisonment, and since September 3, 1954 has been serving said sentence.

The indictment in this case reads as follows:

"United States of America, | No. 24499-SD Plaintiff,| Indictment v. > (U.S.C., Title 18, Sec. 545-Concealment Charles E. Walker, | of merchandise Defendant. | after illegal importation)

The grand jury charges:

On or about May 27, 1954, in San Diego County, California, within the Southern Division of the Southern District of California, defendant Charles E. Walker did knowingly receive, conceal, and facilitate the transportation and concealment, after importation, of certain merchandise, namely: 31 parrots as follows: 28 Petz Conures, 2 white fronted Amazons, and 1 Alexandrine parakeet, which said merchandise, as the defendant then and there well knew, theretofore had been imported and brought into the United States contrary to law.

A True Bill /s/ Thomas J. Gannon Foreman /s/ Laughlin E. Waters Laughlin E. Waters United States Attorney

On April 27, 1955, defendant moved to vacate the judgment and to be released from confinement. Said motion was brought under the provisions of Section 2255 of Title 28, U.S.C.A., and alleges that the "indictment was fatally defective and therefore could not confer jurisdiction of the subject matter upon the above-entitled Court, thus making the judgment in this matter and the confinement of the defendant pursuant thereto null and void, and (2) that the indictment charging the defendant failed to apprise him of the nature of the offense with which he was charged and therefore his confinement resulting from the judgment of the court herein was a deprivation of liberty without due process of law, contrary to the 14th amendment of the United States Constitution."

At the request of counsel for the Government the hearing was postponed for the filing of briefs. The motion presented no controverted issues of fact. The records and files of this matter showed that petitioner's presence was not necessary at the hearing on his motion, nor did he request to be present. After the filing of briefs, the motion was argued by counsel for petitioner, and by counsel for the United States, and the Court denied the motion.

Petitioner contends that the phrase in the indictment "contrary to law" did not sufficiently inform him of the law which was violated when the birds mentioned in said indictment were brought into the United States, and thus did not apprise him of the nature of the offense with which he was charged. If the indictment is subject to this criticism, a consideration of the background of the defendant, the events leading to his arrest and the facts developed at the trial show clearly that defendant was in no way prejudiced by such deficiency, and leaves no ground whatever to suppose that the accused was taken by surprise in the progress of the trial or that he was in any doubt, at any time, as to the precise nature of the offense charged. The present counsel for petitioner represented him at all times during the trial and subsequent proceedings, and at no time prior to this motion made mention of any defect in the indictment; neither has counsel, during the hearing of this motion, pointed out that defendant was in any way hampered in his defense by any lack of information in the indictment.¹

The records of this Court show that the conviction here attacked was petitioner's second conviction within a period of little over a year. In the earlier case, No. 22891, petitioner and a a number of codefendants were found guilty, after a lengthy jury trial, of three counts of an indictment. Count 1 charged conspiracy to violate Section 545 of Title 18 U.S.C.A. by smuggling into the United States psittacine birds from Mexico, Count 10, bringing in psittacine birds from Mexico contrary to law, and Count 11, that the defendants "did knowingly receive, conceal and facilitate the transportation and concealment, after importation, of certain merchandise, namely, a certain number of birds belonging to the psittacine family, the exact number of which is to the Grand Jury unknown, as the defendants then and there well knew, theretofore had been imported and brought into the United States contrary to law."

At the time of sentence (in the earlier case) the Court (Judge Gus J. Solomon presiding) rendered an opinion wherein it was stated, in part:

"In this case, the defendants were in no doubt as to the particular offenses charged nor were they prejudiced in the preparation of their defense. Defendants made no motion for a bill of particulars at any time. Further defendants offered no direct evidence tending to prove that the acts had not been committed by them as charged in the indictment but merely denied the commission of these acts. * * * "The world wide scope of the defendants' organization and the operation of the conspiracy was shown not only by the documentary evidence but also by numerous witnesses, who testified as to conversations with the defendants and admissions by defendants as to the nature and scope of their activities. They also described the 47 methods used in smuggling birds across the international boundary between the United States and Mexico, in transporting the birds in the United States to aviaries and resting places owned by defendants or to retail bird dealers. This and other evidence of the activities of the defendants were described by the employees of the Treasury Service, the Department of Agriculture and Bureau of Customs, by local police officers, former employees and business associates of the defendants and by social acquaintances."

In the earlier case the defendant Walker was, on November 10, 1953, sentenced to four years imprisonment on Count 1, the sentences on the other counts to run concurrently with the sentence in the first count, and to pay a $2,500 fine.

A notice of appeal was filed, and pursuant to order of the Court of Appeals for this Circuit the defendant was admitted to bail on December 1, 1953.

Six months after being admitted to bail pending appeal on the first case, the defendant committed the offense charged in the indictment now under attack.

At the trial in this case, evidence was offered on behalf of defendant to the effect that he had lived in Mexico for years and had made his living importing, legally, birds and animals into the United States; the Government's evidence showed that the birds which the defendant was charged with having concealed etc., and had concealed, had been "smuggled" in from Mexico with the knowledge of defendant and at his instigation; that they were of the psittacine variety which had not been legally imported in this district for over five years; that they were of the type which could not be legally imported except for a zoological park or a research institution, under a permit from the Surgeon General of the United States, even though they had been declared at a port of entry to customs officials. Three customs officers testified that when the defendant was found in possession of the birds he stated that the reason he broke the law a second time was because he was badly in need of money after his first trial and conviction. The jury was fully instructed as to the meaning of "contrary to law" and that the knowledge of the defendant as to the illegal importation was a necessary element.

It has been said by our Ninth Circuit Court of Appeals in Sepulveda v. Squier, 1951, 192 F.2d 796, 798, that where the attack is collateral in nature a petitioner may not be heard to complain of the form of the indictment unless he can show that he suffered prejudice from it.

None has been suffered.

We now pass to the contention that the indictment stated no offense, and conferred no jurisdiction upon the Court, and that the judgment was therefore null and void.

Petitioner has cited only one case in support of his motion, that of Babb v. United States, 5 Cir., 1955, 218 F.2d 538. Count 5 of the indictment in that case was similar to the indictment here, except that the "merchandise" was "Charolaise Cattle". At page 540 of its opinion, the Court of Appeals of the Fifth Circuit considered the case of Keck v. United States, 172 U.S. 434, 19 S.Ct. 254, 43 L.Ed. 505, where the Supreme Court held that an indictment for importing diamonds "`contrary to law'" did not state an offense.

We are not familiar with the type of cattle involved in the indictment and do not have at hand the regulations mentioned by the Court in the Babb case, but we do feel that there is a point of differentiation between the case of Keck v. United States, supra, and the matter before us. In one of the cases cited in the Babb case, Miller v. United States, 300 F. 529, 533, the opinion of the Court of Appeals of the 6th Circuit says:

"Cases of which Keck v. United States, 172 U.S. 434, 19 S.Ct. 254, 43 L.Ed. 505, is typical, and which hold an indictment insufficient because it merely states a general fact in the words of the statute, do not apply to the situation existing under the National Prohibition Act 41 Stat. 305. They refer to some act like importation of merchandise, which is presumptively lawful, and therefore the indictment must show the details which make the act unlawful. Not so with the sale of intoxicating liquor. It is lawful only if exceptional circumstances exist".

In the case at bar, the "merchandise" was described, and consisted of psittacine birds; the...