427 F.2d 1348 | 5th Cir. | 1970
Lead Opinion
In January 1969 a federal Grand jury returned a four count indictment against appellant, Nabi Ferra. Counts one and three charged Ferra with violating 26 U.S.C. § 4704(a) by dispensing and distributing a narcotic not in or from the original stamped container; counts two and four charged him with selling, bartering, exchanging and giving away a narcotic drug in violation of 26 U.S.C. § 4705(a).
Ferra's first contention, that the counts charging a violation of § 4704 (a) fail to allege sufficient facts to constitute a crime, is based solely on the fact that the indictment fails to give the name of the transferee to whom the narcotics were dispensed or distributed. The Fifth Circuit has aligned itself with a majority of the circuits which hold that such a failure is not reversible error.
Although we question the nicety of the government’s lack of cooperation, we find no reversible error. The indictment sufficiently informed the appellants of the nature of their charges even though no victim’s name was mentioned. Mount v. United States, 5 Cir. 1964, 333 F.2d 39, 42-43, cert. den., 379 U.S. 900, 85 S.Ct. 188, 13 L.Ed.2d 175; Rua v. United States, 5 Cir. 1963, 321 F.2d 140, 141, Cf. Borroto v. United States, 5 Cir. 1964, 338 F.2d 60; Snowden v. United States, 5 Cir. 1967, 384 F.2d 357; Escobar v. United States, 5 Cir. 1967, 388 F.2d 661.5
We would also note that the principal case relied on by Ferra, Lauer v. United States,
We are now informed that the Courts in some twenty-five different cases from six Circuits have considered our decision in Lauer. In none of them has the Lauer decision been approved.
We now conclude that we were in error in our decision and holding in Lauer.7
In our opinion this excerpt forecloses Ferra’s argument that Lauer is distinguishable from Collins on the ground that in the former the defendant made a pretrial motion for discovery of the transferee’s name.
Appellant’s attack on the constitutionality of § 4704(a) is two-pronged. His first contention is precisely the same as that raised by the motion to dismiss. In essence, Ferra contends that Congress lacks the constitutional authority to prohibit the dispensing or distribution of a narcotic not in or from the original stamped package. He argues that Congress may only proscribe the sale of a narcotic not in or from an original stamped container. We have examined the authorities cited by appellant and find no support from this contention.
The second prong of Ferra’s constitutional attack focuses exclusively on the Supreme Court’s recent decision in Turner v. United States.
The defective presumption was not employed in appellant’s conviction. It is important to understand that the Court in the Turner decision did not invalidate the criminal provisions contained in § 4704(a). Only the evidentiary presumption contained in 4704(a) as applied to cocaine was found unconstitutional,
Furthermore, considering the nature of the case against Ferra,
. Only counts one and three are involved in this appeal. They charge:
Count One
That on or about the 25th day of September 1968, at Miami, Dade County, in the Southern District of Florida,
NABI FERRA
did dispense and distribute a narcotic drug, that is, approximately 38.830 grams of Cocaine, not in the original stamped package and not from the original stamped package; in violation of Title 26, United States Code, Section 4704(a).
Count Three
That on or about the 3rd day of October 1968, at Miami, Dade County, in the Southern District of Florida,
NABI FERRA
did dispense and distribute a narcotic drug, that is, approximately 4.070 grams of Cocaine, not in the original stamped package and not from the original stamped package; in violation of Title 26, United States Code, Section 4704 (a).
. 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).
. Title 26 U.S.O. § 4704(a) provides:
(a) General requriement. — It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from Narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.
. Borroto v. United States, 338 F.2d 60, 61 (5th Cir. 1964). See Snowden v. United States, 384 F.2d 357 (5th Cir. 1967).
. 392 F.2d 532, 539 (5th Cir. 1968).
. 320 F.2d 187 (7th Cir. 1963).
. 346 F.2d 230, 232 (7th Cir. 1965).
. 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).
. We are discussing here the impact of Turner on 26 U.S.C. 4704(a) and therefore do not deal with the fact that Turner also invalidated the presumption contained in 21 U.S.C. § 174 as applied to cocaine.
. Cf. Carpenter v. Wainwright, 372 F.2d 940 (5th Cir. 1967) (where a coerced confession may have influenced a guilty plea).
. We are able to discern the skeleton of the government’s case from the testimony taken by the district court prior to accepting Ferra’s guilty plea.
. See Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610, 626 (1970).
Rehearing
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en bane, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.