United States v. Julio Zavala

petition. The claims habeas ducted on the hearing sentencing call

pertaining to the a new the sentence and

for vacation of appropriateness of the sen-

hearing on the process imposed. The due to be

tence relating unconstitutionality of

claims statute, applied, as on its face and as claims, eighth amendment also

well as the sentence but would

require vacation of the

additionally preclude reimposition penalty.

death replete

The record this case viola-

evidence of serious constitutional

tions, including discriminatory treatment of race. Some of these viola-

on the basis cursory only afforded the most

tions are majority opinion. in the There

treatment eagerness in its

can be little doubt that failed

ensure Coleman’s execution Montana rights guar- him the fundamental

to afford persons by our Constitution.

anteed to all penalty

Whatever one’s view of the death general, it is clear that it cannot be

imposed arbitrary in an and lawless man- precisely

ner. Yet that what Montana dissent, hope here. I in the firm

did

expectation majority decision that the will long survive. America,

UNITED STATES of

Plaintiff-Appellee, ZAVALA, Defendant-Appellant.

Julio

No. 85-1091. Appeals,

United States Court of

Ninth Circuit.

Argued April 1986. and Submitted

Decided Jan. 1988. Iversen, Francisco, Cal.,

Judd C. San for defendant-appellant. Zanides, Atty.,

Mark N. Asst. U.S. Justice, Dept, Francisco, Cal., San for plaintiff-appellee. 841(a)(1), 846, 963. The REINHARDT, BRUNETTI

Before §§ specifically of, KOZINSKI,* Judges. the dates and times recited to, illegal parties conversations. PER CURIAM: text of the The full the com- indicted on Appellant Julio Zavala was counts is as follows: munication 4, 1983, multiple violations of March laws. Zavala was federal narcotics (Title COUNTS THREE THRU FIVE: conspiracy to charged in count one with Code, 843(b)) United States Section (21 import and distribute cocaine U.S.C. Jury charges: THAT The Grand further 846, 963); in two and nineteen counts §§ On or about the dates hereinafter set (21 possession of cocaine for sale with in Three thru forth Counts Five of 841); through in counts three U.S.C. § Indictment, in the State and Northern eight unlawful use of a communica- with California, District of (21 843(b)); in count facility U.S.C. tions § in commission twenty with use a firearm 924(c)(1)); (18 in felony and

of a U.S.C. § JULIO ZAVALA and ERNESTO conducting twenty-five with a con- LANSIG-CABALLERO, count ten ten victed on counts three tinuing criminal and additional evidence on ment involved the other defendants. pellant nineteen, count count Pursuant set aside the five. agreed to a bench trial on dismiss counts suant to a The district 848). years years one. The court eight, pleaded guilty confinement on count on count negotiated plea agreement, ap- remaining and on count court, judgment two plea agreement, enterprise and . twenty-five, 622 sentenced Zavala counts twenty. Appellant F.Supp. of conviction on through counts one and stipulated count in the indict- twenty-five. (21 moved to the court and four nineteen, twenty- six, U.S.C. facts Pur- con- Three Five Four COUNT COUNTS SIX THRU EIGHT: and defendants commission of committing, causing with in Counts Three thru Five: United States United States Grand intentionally persons 9/9/82 9/5/82 8/28/82 1053 and DATE 841(a)(1), Jury herein, unlawfully, knowingly HOUR PERSONS CONVERSING felony hrs hrs hrs Code, further Code, did use a Julio Zavala and Ernesto Lan- Julio Zavala and Ernesto Lan- Julio Zavala and Ernesto Lan- sig-Caballero. sig-Caballero sig*Cabal!ero. telephone and in communications Section violations of Title Sections charges: facilitating telephone calls listed 843(b)) (Title 21, 963, 952, THAT in On or about the dates hereinafter set years through each on counts three six and Eight eight. concurrently. All the sentences run forth Counts Six thru of this Indictment, in the State and Northern appeal appellant challenges On this California, District of through convictions on counts three six and (the counts), eight count communication ZAVALA, (the twenty-five continuing crimi- JULIO

and count count). enterprise nal He does not chal- herein, knowingly unlawfully, lenge his conviction on count nineteen. We telephone in intentionally did use a affirm the convictions. committing, causing facilitating felony commission of violations of Title Appellant challenges first the suf Code, 963, 952, Sections ficiency of the indictment on the communi 841(a)(1), counts. The in communications cation Za using telephone persons telephone calls listed vala with to facilitate the Eight: commission of violations of U.S.C. Counts Six thru * Judge replace Judge Kozinski was drawn the record. Kennedy. He has read the briefs and reviewed Hamling v. United Indictments are forth prohibiting fense). the transactions. the fendant insufficient when guage is (1974), although specific he used Cir.1979) Seven Eight Six underlying substantive dates and generally sufficient contain all 9/22/82 9/13/82 9/23/82 person, in In this the (tracking statutory elements Keith, each drug telephone to converse at the all in connection cure-all. instance case, essential follow hrs hrs hrs following transactions, statutory language does Julio Julio Julio Cabezas. Cabezas. States, 418 U.S. precise times each statutory language if the Zavala and Zavala e.g., United See, elements 41 L.Ed.2d crime, criminal count refers advised statutory lan- language is statute sets so the Angela Doris Carlos with see, that shown, statute awith of of- Solomon. drug e.g., de- on to Id. specified upon defendants’ to distribute tated alleging violations trolled identify the controlled substances specified ity used telephone, on conspiracy “as ic volved, tribute cocaine Defendants therefore knew dictment at 1158. sations occurred. Cf. sess at 764. As times, involved approximate times when with intent (conspiracy rights. in they substance), to facilitate (a charged them with count Although the counts did telephone), the did, in type of communication specific and to distribute charged in In this Keck, and PCP. Hinkle, one that the nonetheless, to in this Fifth or Sixth as well as distribute possess with the indictment days conspiracy Hinkle, 637 F.2d case, did case, U.S.C. § Count felony facili- not that the defendants, refer to the the conver- unlike using the the dates infringe I.” ... Amend- to specif- to dis- intent facil- here pos- in- in- Zavala, charged including were with distribute, possess “import, spiracy to indict the argues that Appellant cocaine, a Schedule intent to distribute with insufficient because here was Title in narcotic substance listed II con the possibility that open the leaves Code, Section 812.” States United could have question in substance trolled forty-two hundred and one that any one of It is true substantive been Appellant one, in Title 21. set forth to count substances refer specifically here do not case, United upon a Seventh relies import conspiracy to charged the (7th Cir. Hinkle, F.2d 1154 form, States However, is a this defect cocaine. merely indictment 1981). In Hinkle such a We must overlook not substance. defendant, on or about charged that the here, where, chal- as defect facilitate a telephone to day, used certain first time on lenged the indictment 843(b). 841(a)(1), U.S.C. felony under 21 §§ Pheaster, 544 appeal. was that court held The conclude, (9th Cir.1976). We F.2d pos for the it allowed insufficient because here, therefore, al- the indictment that facili have defendant could sibility that the model, though not a is sufficient. forty-two hundred of one tated argues that there Appellant next ways. in six different predicate felonies guilt count insufficient evidence that with was court concluded at 1158. The Id. sub found controlled The court disagree. as to the six. We district statement out a of com question manner purpose stance of the call that the described vague. too Id. mission, was the indictment that a appellant to tell the indictment was argues that the appellant drug collect messenger would reason. for the same case is deficient this Appellant appellant money that the owed. expec paying debt that contends facilitate dealing tation of future does not, however, Seventh Cir- Hinkle conspiracy. We doubt the distribution pronouncement this area. cuit’s last event, but, suffi was premise, there Keck, 773 United States v. inference that support cient evidence distinguished Cir.1985), Hinkle follows: (1982), 906, 103 appellant in the cocaine busi- L.Ed.2d U.S. was still S.Ct. (1982). ness, Appellant he could 74 L.Ed.2d 166 payment ensured that ad years mitted that over several conspired in it. continue many people and was involved in dis Appellant’s next contention is that tributing thirty kilograms over of cocaine produce failed to sufficient valued at million. The $1.8 evidence was guilt operat him of to convict evidence therefore sufficient that he was within the continuing enterprise as ing a criminal class of offenders. charged twenty-five. reject in count We Finally, appellant attacks his conviction argument. Appellant first contends twenty-five by arguing on count that he did charged in that the crimes the communica not earn substantial income from the enter- requirement tion counts do not meet See prise. 848(b)(2)(B). U.S.C. continuing engage § in a that the defendant large traded, amount of cocaine 21 U.S.C. series violations. selling $63,000 price per kilogram, of over 848(b)(2). continuing criminal enter permit are sufficient the district court to unambiguously prise provides statute appellant infer that the earned subchap substantial felony violations of the relevant 848(b)(1); enterprise. income from the ters will suffice. See U.S.C. § We therefore Young, appellant’s challenges turn back each of see also United States v. denied, (2d Cir.1984), sufficiency evidence to convict twenty-five. 85 L.Ed.2d 142 on count Appellant was with and Appellant’s next contention is that all of multiple illegal com convicted of uses of a appealed the convictions should be set aside facility in violation of 21 U.S.C. munication the district because court did not order the 843(b). requires The statute no more. transcription Spanish and translation from English to of each one of the thousands of

Resolving argument against this the phone intercepted pursuant calls to a court- dispose appellant allows us also to of his wiretap. 11,000 Approximately ordered the court its contention that district abused telephone intercepted. conversations denying particulars of were discretion a bill 1,800 government The concluded naming predicate the felonies for the con that about See United tinuing enterprise charge. drug-related, of the conversations were and Andrino, (9th 1373, 1378 gave transcriptions 501 F.2d defense counsel of the Cir.1974). appellant conversations, vigorously The con contents of these as well as counts, they tapes tested the communication transcriptions the themselves. The defense, were central to the trial. His English the of were version conversations therefore, way inwas no hindered the mostly Spanish. that were conducted prosecu district court’s refusal to force the government provided defense counsel detail, spell theory tion to out in further 9,200 its tapes, with the other but no tran- appellant fully plead will be able to scriptions or translations. jeopardy any subsequent criminal double Appellant argues pro- that the failure to trial. vide defense counsel translations of 9,200

Returning sufficiency now to the the other conversations violated his appel rights, twenty-five, process equal protection the on count due of evidence Oklahoma, Ake v. argues among citing he is not the lant also that sought penalized to 84 L.Ed.2d 53 He ar- class of offenders S.Ct. continuing gues provide operating a criminal enter that the failure to translation government tapes prejudiced ability does prise. not need to of the other to however, defense, show, appellant ring prepare that in that he was unable to was leader; only prove phrases rather it need show that he that that the managed, supervised actually organized, alleged at least were code words had an Phillips, See United States v. urges people. explanation. innocent He that ac- five (5th Cir.1981), cert. de have cess to the other conversations would nied, given opportunity. him this because, by its argument 11,000 appellant’s vanee a case with In context terms, only to the applies response own conversations, a reasonable sentenced, codefend- argu and not being prosecution, who by the court repeatedly court ants. is frivolous. appellant with provide offered that argument is next Appellant’s sit could interpreter who translator subpoenas quashing court’s the district identify any counsel defense down with thirty- compel the attendance seeking to to the defense. crucial tapes that would be his confrontation agents violated six FBI up, the court tapes turned any important If that lost Appellant contends he rights. neutrally tran tapes to have those offered accuracy the tran challenge the right to Defense counsel translated. scribed incriminating conver scriptions of various English tapes were if the that conceded however, stipulated Appellant, sations. transcrip right no had he would have transcriptions, and accuracy of were rea here used procedures tion. The within court was well the district therefore con appellant’s respected fully sonable and subpoenas. quashing its discretion rights. stitutional Wilson, 578 F.2d that district contends Appellant next Cir.1978). (5th revealing in not its discretion court abused confiden government’s identity of the Appellant’s argument final See, e.g., United tial informant. criminal continuing trial on that his Cir.1974), 724, 729-30 Anderson, 509 F.2d jeopardy put him twice in count enterprise 910, 95 S.Ct. denied, 420 U.S. rt. ce 831, to, guilty already pleaded he had because re (1975). Having 42 L.Ed.2d of, conspiracy import convicted and been submitted materials in camera viewed the appellant When cocaine. and distribute court, that we conclude to the district charge, conspiracy guilty to the pleaded its discretion was within court district agreed however, expressly disclosure. See motion for denying the criminal try continuing should court States, 353 generally Roviaro stipulated the basis of enterprise 623, 628,1 L.Ed.2d 53, 62, 77 S.Ct. found appellant was facts. After public’s weigh (1957) (district court must enterprise continuing criminal guilty of the of information protecting flow interest the con dismissed count, the district court prepare his de need to against individual’s raise may not A spiracy count. fense). jeopardy to of double the defense challenge Appellant’s next agrees be tried. expressly he failed to order is that court convictions — —, Adamson, v. U.S. See Ricketts the statements produce government (1987). 2680, 2686, 1 97 L.Ed.2d 107 S.Ct. in their government witnesses of various AFFIRMED. disclosure of reports. But probation Mary by Brady v. compelled reports is not 1194, 10 REINHARDT, Judge, 83, L.Ed.2d

land, 83 S.Ct. 373 U.S. Act, 18 U.S.C. (1963), dissenting: the Jencks 215 3500, Federal Rules or Rule 16 of the § case was in this Because reports are in the if Procedure Criminal reverse we Zavala’s inadequate, should probation office. court or the hands of the respectfully dissent. I therefore viction. Trevino, 556 F.2d v. United States Cir.1977). appellant has Here 1270 Principles I. General department probation conceded that provides that fifth amendment “[n]o reports, and thus control of all has capital, for a to answer person shall be held mentioned above is none of theories crime, aon unless Further, infamous of or otherwise help him. Federal Rule of a Grand or indictment 32(c)(3)(E) presentment1 does ad- Criminal Procedure knowledge from their own by jury of offense presentment grand A "is the taken 1. notice

529 “ " U.S.Const, statute,' upon Inas- ‘In an indictment amend. V. Jury_” “ said, Supreme Court has ‘it is not suffi- fallen into presentment has much as the cient to set the offense in the words desuetude, adequate indict- the use of an forth statute, of the unless those words of them- impera- has a constitutional ment become leading fully, directly, expressly, selves with- by a treatise: explained As tive. any uncertainty ambiguity, in out set forth presentment is obsolete “The use of a courts, necessary all the elements to constitute the not authorized federal and is punished....’” offense intended to Rules of Criminal be 7 the Federal Rule [of States, 749, 765, Accordingly, the consti- Russell v. United U.S. where Procedure]. 1038, 1047, (1962) 8 L.Ed.2d 240 applicable, an indict- S.Ct. provision tutional Carll, (quoting Wright, Federal United States v. 105 U.S. must used.” C. (15 Otto) 611, 612, (1881)). 26 L.Ed. 1135 Criminal 2d and Procedure: Practice Keith, constitutionally also A See United States v. F.2d at 338 (9th Cir.1979). indictment, consequently, must sufficient “capital, or precede any conviction for a The Court has also stated “it is a otherwise infamous crime.”2 particulars settled rule that bill of cannot save an invalid indictment.” has declared that Russell v. Supreme Court States, it, first, 369 U.S. 82 S.Ct. if con- United “an indictment is sufficient 1038, 1050, (1962) (citations 8 L.Ed.2d 240 of the offense tains the elements omitted). Cecil, In informs a defendant of the United States we fairly defend, and, explained underlying the rationale this “es- charge against which he must second, acquittal tablished rule.” plead him to an enables prosecutions of future conviction bar particulars If a were allowed to bill Hamling offense.” v. United indictment, the same save an insufficient the role 87, 117, States, 418 94 S.Ct. grand jury as intervenor would be (1974)(citing Hagner L.Ed.2d circumvented. Rather than the assur- States, 427, 52 body ance that a of fellow citizens had (1932); 76 L.Ed. facts and determined that assessed the Debrow, 74 S.Ct. prosecution, face an individual should (1953)). position L.Ed. 92 also prosecutor would be in a to sec- Cecil, (9th Cir.1979). guess actually happened ond what within grand jury gaps fifth sixth amendments are fill in Thus the implicated. transpired. pro- both what assumed pow- significant tection of a check on the language of may An indictment use the prosecutors er of the courts and would general description the statute in the of an thus be lost. Invoking statutory language, offense. token, By 1296. the same however, does not relieve the “ ‘open discovery cure an inval- file’ cannot duty of its to furnish the defendant with a indictment.” id Id. description charges sufficient the him, pre- indictment,” him against in order to allow the Dis count in an “Each defense, pare prosecu- explained, ensure that the “is his trict of Circuit has Columbia presented separate indict regarded tion is on facts as if it was a based [sic] Fulcher, grand jury, plead the defendant to 626 F.2d enable ment.” United States v. 985, (D.C.Cir.) against prosecution, (citing v. jeopardy a late 988 Dunn United double 189, 190, States, 390, 393, 52 alleged. inform the court of the facts 284 U.S. S.Ct. 417, 428, Wilson, observation, any 114 U.S. 5 S.Ct. or bill of indictment Ex Parte king.” (1885). Advisory laid before them at the suit of the 4 W. Commit- 29 L.Ed. 89 Blackstone, Commentaries *301. Rules of Criminal Procedure tee on the Federal "any specifically offense concluded more that century ago, Supreme Over Court stated: 2. a imprisonment punishable by for a term of over century, imprisonment "For more than a at year infamous crime.” Fed.R.Crim.P. is an prison penitentiary hard labor in the State or advisory committee note. institution has been considered an other similar punishment England infamous America.” if than we would denied, standard a more relaxed 449 U.S. cert. (1932)), 76 L.Ed. (1980). timely objection. L.Ed.2d 46 had raised the defendant 101 S.Ct. further, and, stated Fulcher count,” individually as examine the counts “Each We own, depend and cannot its stand on “must con reasonably be long they can each allegations of validity on for its containing the “essential ele strued as incorporated.” specifically other count indictment, if even uphold the we ment[s]” generally C. See omitted). (citations Id. inartificially loosely drawn.” “is and Procedure: Wright, Federal Practice States, 285 U.S. at Hagner v. United (1982). We 349-51 at Criminal 2d § See, e.g., United at 52 S.Ct. 420. on the ba must assess Zavala’s Pheaster, still 359-63. But we 544 F.2d at principles. of these sis that each count “informs make certain charge against defendant of Indictment Challenging an II. defend, plead him to and ... enables must Appeal First Time acquittal or conviction bar future an in objections to the his presents offense.” Ham for the same prosecutions appeal. In time on first for the dictment States, at ling v. United Pheaster, F.2d 353 States United at 2907. denied, Cir.1976), (9th (1977), we L.Ed.2d 546 97 S.Ct. never waives that a defendant stated III. Counts ex challenge an indictment. We right to through eight of the three indict- Counts nonetheless, “indictments plained, violations of Zavala with liberally challenged tardily are which are 843(b) (1982), i.e., the use of U.S.C. § Pheaster, validity.”

construed in favor of in interstate com- device communication also v. United See Carlson at 361. 544 F.2d drug felony. The merce facilitate Cir.1961). States, 296 F.2d times, dates, partici- include Supreme has Court specifically, More alleged but otherwise pants in the offense uphold indict should that courts stated language. statutory simply track the verdict if challenged before ments indictment). (reprinting Maj. op. at form, 525-26 necessary appear facts “the identify entirely can be within fails to by fair construction found The indictment Hagner v. the indictment.” the terms of involved or the al- proscribed substance States, 52 S.Ct. at 285 U.S. at United through leged facilitated that was offense disregard must therefore We In device. the use of the communication But the indictment phrasing. errors defense, response to motions “Liberal substantively sufficient. must government to trial court ordered the issue sufficiency testing an indict ity in informing particulars Zavala that a bill of ment,” Carlson said we illegal involved was cocaine substance States, and not “applies to matters of form pos- the offenses facilitated were In 912. of substance.” conspiracy asserted session and elsewhere specified further: v. Cluchette we in the indictment. test is whether the “The true already explained, we cannot As I have of the offense intend the elements contains unless these counts uphold the indictment sufficiently apprises ed to be sufficient. separately are prepared he must be the defendant of what (9th Cir.1972) Fulcher, Moreover, re- F.2d F.2d at 988. to meet.” 465 Mitman, 459 F.2d v. United States (citing language not in peating statutory will and denied, (9th Cir.), salvage inadequate an indictment. of itself (1972)). Russell, L.Ed.2d at United States Finally, the 82 S.Ct. at 1047. Thus, about complains when a defendant particulars by a bill of may not means of sufficiency only of the indictment after Id. salvage an indictment. verdict, invalid of the we take a liberal view using strictly, it less 82 S.Ct. at 1050. indictment. We read 843(b) type problem, precisely in the faced with of counts The various section specified date state that at held that an indictment under section time, persons specified 843(b) violated and specifies is insufficient unless it “unlawfully, 843(b) they know- in that C. § controlled substance involved well as the telephone intentionally did use a ingly and 841(a)(1) felony precise under that was fur- causing facilitating the committing, and in telephone. of the thered use Title felony violations of commission of Hinkle, 1157-58 963, 952, 846, Code, Sections United States Keck, Cir.1981); see United States v. 841(a)(1)_” Maj. op. (reprint- at 525 (7th Cir.1985). 773 F.2d 763-64 indictment). provide no fur- ing The counts Supreme relied on the Seventh details. ther Hamling and Russell in Court’s decisions 843(b) makes it inten- unlawful reaching Section its result. facility to tionally to use a communications here, challenged The counts like those commit, any felony or facilitate de- cause Hinkle, language in the framed “[were] 801-970 fined 21 U.S.C. §§ 843(b) 21 U.S.C. which defendant is specifies Zavala used the charged violating: they specify with which alia, sections violate, inter

telephone to used, communication device the defendant 841(a)(1). 846 declares it 846 and Section telephone, they specify the dates commit, conspire to illegal attempt to to it.” on which used 637 F.2d at 1157. [he] commit, in 21 any offense defined U.S.C. The Hinkle court thus explained prob- Thus, the indictment also 801-904. §§ lem with such an indictment. telephone charges using the to Zavala with [A]ppellant only knows that she is commit, attempt conspire to to com- charged using telephone with on cer- mit, por- in that any of the offenses listed days tain to facilitate in some manner the combining By of Title 21. the refer- tion acts, doing types of one of six 841(a)(1) in the indictment ences to section might hun- involve one of one which one can conclude that section forty-two dred and controlled substances. using telephone Zavala was with nothing The indictment tells her about 841(a)(1), attempt to violate section or to gravamen alleged of the offense: or 841(a)(1), of section commit violation attempted she to facilitate with what conspire section to commit a violation of which controlled substance. 841(a)(1). Id. at 1158. The Seventh Circuit therefore 841(a)(1)

Section lists six different unlaw- held, view, correctly my “that an indict (i) manufacturing ful acts: of a controlled of 21 U.S.C. substance, (ii) issued for violations of a controlled distribution 843(b) substance, specify type communica (iii) must dispensing a controlled sub- used, stance, (iv) facility it was possession of a controlled sub- tion the date on which used, stance with intent to manufacture a con- involved and the controlled substance substance, (v) possession being trolled of a con- sort of of what some statement distribute, trolled substance with intent to facilitated with that controlled substance (vi) possession of a controlled sub- Id. also felony.” which constitutes dispense. stance intent to Schedules I Keck, 763-64. 773 F.2d at approximately II to section include Ramos, United States v. Cf. 140 controlled substances. The section (11th Cir.1982) (“[T]he indictment’s 843(b) specify do not statutory language, supple tracking of the trolled substance was involved. allegations time by precise mented activity, place of the criminal Simple sec- arithmetic shows that each participants and the con names of the indictment, tion count in the insofar involved, appear would trolled substance 841(a)(1), as it invokes sections 846 and sufficient.”). as the 2,520 offenses, entirely Inasmuch separate refers at least one(s) specify controlled indicating counts here do not with which being charged. Circuit, felony nor the facilitat- Seventh substance involved the indict- telephone, of the by the use ed charges disjunctive. in if it in the As noted equally insufficient.3 is treatise, leading “if the indictment or in alleges the several acts the information United majority relies on The disjunctive it fails inform the defendant 763-64, the in which Keck, 773 F.2d charged having is with which of the acts he indictment that an claim rejected a court committed, and it is insufficient.” 1 C. How- op. at 626. Maj. insufficient. was (footnote 373-74 Wright, swpra, 125 at § majority acknowl- Keck, ever, the in as words, omitted). a court must In other only spec- question in edges, the counts containing a an indictment count invalidate also identified alleged but felony the ified that defendant committed that states the in- substance controlled the by reference in one manner or that com- the offense present in the is element Neither volved. it in a manner. mitted different considering case. our arewe counts underlying the statute lists Even when can the defendant that contends majority through means disjunctively the different by analyz- missing elements supply those committed, may be the which an offense Thus, indictment. of the parts ing other conjunctively.4 list them indictment must from the absence dismisses majority the is that the statute “Once it determined (1) of the the statement of offense,” those counts single defines we stated but drug (2) Co., “it becomes alleged and reference Oil felony United UCO means, charge the different de form, proper to sub- of “a defect involved statute, disjunctively in the con- nounced Maj. should be overlooked. stance” which of the indictment.” junctively each count characterization glib While op. at 526. (9th Cir.1976) (citing wholly it inconsistent appeal, has obvious F.2d Alsop, 479 United States v. govern- requirements fundamental the Cir.1973)), denied, (9th separate counts and their indictments ing (1977). As 97 S.Ct. L.Ed.2d alia, in, Hamling v. United forth inter set explained in Criminal Proce Wharton’s v. Fulcher. States, and United States dure, an indictment or infor “it is fatal for charge disjunctively in the words mation Disjunctive the Charging in IV. statute, it disjunctive if renders the 843(b) in the violate section counts alternative is intend uncertain as to which prohibition constitutional extreme ed.” 2 Criminal Procedure Wharton’s disjunctively. against charging a defendant 1975) (footnote omitted). (12th ed. reports that even the use of in the dis- Wharton’s Zavala For these (footnote inadequate. “and/or” is Id. different two thousand junctive with over omitted). de- through the offense therein which acts The indictment may scribed be committed. appears It that me fundamental deprived of thus this case impermissibly charges in the dis- guaran- fifth that the amendment rights junctive. A 843(b) violation section can him. tees many ways. different accomplished in more than refer no does in more committed can be an offense If Thus, 841(a)(1) one must and 846. sections is insufficient way, an indictment than trial, committed Adams, proving the defendant 4. At the Third 3. In listed through the means will suf indictment was offense section Hamling that the held precise held in As we it stated when under suffice to secure conviction. ficient call, crime, participants, phone de- and time of the “Where date States v. Jones: facilitated, although precise statute, charged felonies disjunctively in a nounced stated. was not substance involved controlled any one of proof conjunctive, Cir.1985), (3d cert. de 1116-17 759 nied, conviction.” 491 allegations will sustain L.Ed.2d 236 (citations Cir.1974) omit- F.2d ted). not even (1985). us does The indictment before time, conjunc- charging in the the same At in Adams. For test set forth the weaker meet "merely respect of prosecution in "further tive bars offense under of an facilitation Crain court].” [the of the matters embraced 841(a)(1) identifying U.S.C. States, 16 S.Ct. prohibited by types that section of acts six 955, 40 L.Ed. 1097 Id. at 1117. had facilitated.” challenge it to appellant’s standing failure of sec- the words incorporating it as read ap “sufficiently below, it does because Sec- by reference. 841(a)(1)and tions he must be of what the defendant however, prise[ writ- are ] 841(a)(1)and tions States v. Clu meet.” United prepared con- to The defendant disjunctive: in the ten (citing United at 753 commit; chette, to attempted commit, or to spired Cir.), Mitman, 459 F.2d 451 manufactured, distribut- States defendant 93 S.Ct. 843(b) denied, 409 U.S. section etc. ed, dispensed, out (1972)). pointed IAs have L.Ed.2d 111 disjunctively Zavala hence, charge counts, charging of violations indictment supra, an The counts acts. thousand two with over constitutionally suffi 843(b) is not of the section flagrant violation represent thus particular felo specifies the charging unless against cient prohibition constitutional con well as the being as ny facilitated disjunctive. in the Here, involved. trolled substance Due His Claim Did Not Waive V. Zavala thou allege more than two counts effect Delay to defi These disjunctive. in the sand acts contend colleagues do My right to his deprived Zavala ciencies upheld the have would they conviction charges precise of the definite notice had Zavala indictment 843(b) in the counts right plead his as of him as well against In appeal. prior to this his claim raised subsequent prosecu jeopardy double all. assertion no such they make fact indictment insuffi They render tion. context in the only that Instead, they hold of read under the most liberal cient even first challenged for the of an ings. sufficient. it is appeal, time on Conclusion deficien- the serious disregard cannot We impermissibly 843(b) counts simply be- present cies to mention fail disjunctive and in the first his claim for raises cause felony facilitated particular supra, discussed As appeal. time on Inasmuch involved. substance trolled chal- right to never waives defendant substantive, those clearly are these defects course, inter- We, of lenge indictment. an invali- should the indictment counts belatedly chal- liberally an indictment pret claim raised his though Zavala even dated will that we only means lenged but appeal. time on the first will we form and that errors of disregard language em- reading to the give a broad indict- mean that It does not

ployed. deemed that are may omit elements

ment An indict- constitutionality. its essential Margie WEGNER; J. re In Albert cannot substantively insufficient ment Wegner, Debtors. fails stand, even when GRIFFEL, Appellant, C. William of the trial attention bring the issue States, 296 See Carlson court. MURPHY, Bankruptcy Gregory G. 912. F.2d at Trustee, Appellee. indict- section Here 87-3615. No. elements. essential to set forth fail matter language, no reading of their No Appeals, States Court supply those can or relaxed how broad Ninth Circuit. cannot problem here missing terms. The 6, 1987.* Nov. Submitted or another using approach be solved 28, 1988. Jan. Decided charging document. construing the reliance on United majority’s Thus misplaced. is wholly v. Pheaster stand, cannot notwith-

The indictment here * 34(a). Fed.R.App.P. 34-4 and appropriate Circuit Rule for submis- case panel finds this argument pursuant to Ninth oral sion

Case Details

Case Name: United States v. Julio Zavala

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 26, 1988

Citation: 839 F.2d 523

Docket Number: 85-1091

Court Abbreviation: 9th Cir.