Betty Robinson v. United States

263 F.2d 911, 1959 U.S. App. LEXIS 4520

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 26, 1959
• Docket: 5962_1
• Status: Published

Opinions

PER CURIAM.

Appellant stands convicted upon the first count of a ten count indictment charging her and others with the unlawful trafficking in narcotics. Although not raised in the trial level, contention is now made that the indictment fails to state a public offense, is consequently fatally defective, and that the voiding of all proceedings resulting in appellant’s conviction is now required. We reluctantly agree to such necessity.

An indictment charging an offense under 21 U.S.C.A. § 174¹ must allege that the accused knew that the contraband was imported or brought into the United States contrary to law. The instant indictment fails to make this essential allegation ² and thus fails to state a public offense. We are in accord with the views of the Seventh Circuit expressed in United States v. Calhoun, 257 F.2d 673, that the defect cannot be considered as an obvious technicality nor disregarded under Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A. as “harmless'error.”

Reversed with instructions to dismiss the indictment.

1 . “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. * * * ”

2 . “The grand jury charges: