Steve Leroy CORDOVA, Appellant, v. UNITED STATES of America, Appellee

United States Court of Appeals for the Tenth Circuit1962-05-17No. No. 6895

303 F.2d 454

Summary · law.co

Holding. The court affirmed Cordova's conviction, finding no prejudicial error in the record and rejecting his claims regarding duplicitous indictment, failure to endorse witnesses, and the constitutionality of the statutory presumption.

Cordova was convicted of three counts of narcotic drug violations under federal law and appealed his conviction. He raised three main arguments: first, that the indictment was duplicitous because each count charged multiple distinct offenses in violation of pleading rules; second, that the government's failure to list its witnesses on the indictment violated his constitutional right to confront witnesses against him; and third, that the statute itself was unconstitutional because it contained a presumption allowing conviction based on possession of narcotics unless the defendant explained the possession to the jury's satisfaction. The appellate court rejected all three arguments, finding that charging multiple acts conjunctively in a single count is permissible when the statute itself describes those acts together, that there is no requirement to endorse witness names on an indictment, and that the constitutional validity of the presumption provision had been repeatedly upheld in prior decisions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether charging multiple acts in one indictment count is duplicitous
Whether prosecution must list government witnesses on the indictment
Whether a statutory presumption allowing conviction based on narcotic drug possession violates the Constitution

Procedural posture

Cordova appealed his conviction and sentence on a three-count indictment charging violations of the Narcotic Drugs Import and Export Act.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PICKETT, Circuit Judge.

Cordova appeals from his conviction and sentence on a 3-count indict ment charging violations of Section 2(c) of the Narcotic Drugs Import and Export Act, 70 Stat. 570 (1956), 21 U.S.C.A. § 174. It is first urged that there is joined in each count of the indictment two or more distinct offenses, and that a motion to dismiss should have been sustained because the counts were duplicitous. Each count alleges that Cordova “did fraudulently, knowingly and wilfully receive, conceal, sell and facilitate the transportation and concealment of a narcotic drug, * * *." The law is settled that when a statute denounces several acts as a crime, an indictment or information drawn in the language of the statute is not duplicitous if all the acts are pleaded conjunctively in one count. Crain v. United States, 162 U.S. 625, 636, 16 S.Ct. 952, 40 L.Ed. 1097; Kitchens v. United States, 10 Cir., 272 F.2d 757, cert. denied 362 U.S. 942, 80 S.Ct. 89, 4 L.Ed.2d 772; Travis v. United States, 10 Cir., 247 F.2d 130; Cathcart v. United States, 10 Cir., 244 F.2d 74, cert. denied 354 U.S. 924, 77 S.Ct. 1387, 1 L.Ed.2d 1439; McDonough v. United States, 10 Cir., 227 F.2d 402; Madsen v. United States, 10 Cir., 165 F.2d 507.

The remaining contentions, that the failure to endorse the government’s witnesses on the indictment is a violation of the defendant’s constitutional right to be confronted by the witnesses against him, and that Section 2(c) of the Narcotic Drugs Export and Import Act is unconstitutional because of the presumption therein, are without merit. There is no statutory or constitutional requirement that the prosecution endorse the names of the government’s witnesses on the information or indictment, or even disclose them to the defense. Dean v. United States, 8 Cir., 265 F.2d 544; Bohn v. United States, 8 Cir., 260 F.2d 773, cert. denied 358 U.S. 931, 79 S.Ct. 320, 3 L.Ed.2d 304; United States v. Stein, (S.D.N.Y.) 18 F.R.D. 17; 14 Am.Jur. Criminal Law § 208 (1938). Cf. Knight v. Hudspeth, 10 Cir., 112 F.2d 137, cert. denied 311 U.S. 681, 61 S.Ct. 62, 85 L.Ed. 439; Moore v. Aderhold, 10 Cir., 108 F.2d 729; United States v. Schneiderman, (S.D.Cal.) 104 F.Supp. 405, 409. In Velasquez v. United States, 10 Cir., 244 F.2d 416, 418, in considering the constitutionality of Section 2(c) of the Narcotic Drugs Import and Export Act, we said:

“Another ground of the motion for a directed verdict of acquittal upon the charge contained in the first count of the indictment was that the provision in the statute making proof of possession of a narcotic drug sufficient evidence to warrant conviction unless the defendant explains such possession to the satisfaction of the jury is unconstitutional. The contention does not call for extended discussion. It is enough to say without laboring the question that the constitutional validity of the provision in the statute has consistently withstood like challenge. Yee Hem v. United States, supra [268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904]; Dear Check Quong v. United States, supra [82 U.S.App.D.C. 8, 160 F.2d 251]; Stein v. United States, 9 Cir., 166 F.2d 851, certiorari denied 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768.”

This conclusion was reaffirmed in Griego v. United States, 10 Cir., 298 F.2d 845.

We find no prejudicial error in the record.

Affirmed.

. Title 21 U.S.C.A. § 174 reads in part:

“Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000.”

. The second paragraph of 21 U.S.C.A. § 174 provides: “Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”

. Title 18 U.S.C. § 3432 requires the goverment to furnish defendants in trials for treason or other capital offenses with a list of the witnesses at least three days before the commencement of the trial.