Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.
Willie Davis, appellant, and his co-defendant, Reid, who is not a party to this appeal, were charged jointly in a onecount indictment with receiving, concealing and facilitating the transportation of marihuana, knowing the same to have been imported into the United States contrary to law, in violation of Section 176a, Title 21 U.S.C.A. Appellant's motions to dismiss the indictment, to suppress the evidence, for judgment at the close of the Government's case and at the close of all the evidence, and in arrest of judgment were all overruled. Following a jury trial Davis was found guilty and was sentenced to imprisonment for a period of ten years. This appeal followed.
The errors relied upon relate to the sufficiency of the indictment to charge any offense, the overruling of the motion to suppress the evidence and admission of evidence from the Government agents, the rulings of the trial court on the other motions above referred to, and the court's refusal to give certain instructions to the jury tendered by appellant.
Appellant offered no evidence in his own defense, and the sufficiency of the evidence to sustain the verdict of the jury is not questioned in this appeal.
The indictment in this case charges:
"That on or about July 15, 1958, in Will County, in the Northern District of Illinois, Eastern Division, Willie Davis and Osborne Reid, defendants herein, did knowingly, and with intent to defraud the United States, receive, conceal and facilitate the transportation and concealment after unlawful importation of approximately 60 pounds of marihuana, knowing the same to have been imported into the United States contrary to law; in violation of Section 176a, Title 21, United States Code, as amended by the Narcotic Control Act of 1956."
Appellant contends that an indictment that charges an offense for dealing with something imported "contrary to law" must specify the statute which was violated by such importation and that the count in question is insufficient in this respect. He relies upon Keck v. United States, 1899, 172 U.S. 434, 19 S. Ct. 254, 43 L. Ed. 505 and Babb v. United States, 5 Cir., 1955, 218 F.2d 538. These cases arose under 18 U.S.C.A. § 545 which relates to the importation of "any merchandise" into the United States "contrary to law."
In Keck, the defendant was charged with importation of diamonds contrary to law, and the Court held that the charge in the indictment in terms of the statute was "obviously too general, and did not sufficiently inform the defendant of the nature of the accusation against him." 172 U.S. at page 437, 19 S. Ct. at page 255. Since the importation of merchandise (diamonds) "is not per se contrary to law, and could only become so when done in violation of specific statutory requirements," (ibid .) the Court held that specific pleading was necessary.
In Babb, the charge related to the concealment and transportation of cattle imported contrary to law. In holding the indictment to be insufficient, that court followed Keck as authority and concluded that "the indictment should have alleged some fact or facts showing that the cattle in question were imported or brought in contrary to some law; and that it is not enough to say that they were imported or brought in 'contrary to law.'" 218 F.2d at page 541.
Appellant does not complain that the indictment failed to give him sufficient notice or that he was surprised by the evidence introduced by the Government. He contends, in effect, that under Keck and Babb, with or without a showing of prejudice, the indictment under consideration is insufficient as a matter of law. We disagree.
Section 174, 21 U.S.C.A. makes the importation of all narcotics illegal, and it has been held that the failure to specify in the indictment the statutes violated is not a defect in narcotics prosecutions under this section. Wong Lung Sing v. United States, 9 Cir., 1925, 3 F.2d 780, 781 and Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751, 754. Each of these cases distinguishes Keck v. United States, supra. However, appellant would have us rely on principles drawn from the line of cases decided under 18 U.S.C.A. § 545 which involve smuggling of "any merchandise" rather than those governing narcotics cases arising under Section 174, 21 U.S.C.A. While the Government concedes that under certain rare circumstances marihuana may be legally imported, it aptly points to the many state and federal statutes restricting the use, possession, transfer and importation of marihuana. 18 U.S.C.A. § 545 deals with useful articles and not narcotics. As was said in Caudillo v. United States, 9 Cir., 1958, 253 F.2d 513, at page 517, certiorari denied Romero v. United States, 1958, 357 U.S. 931, 78 S. Ct. 1375, 2 L. Ed. 1373, "* * * this Court knows of no medical or scientific use to be made of marihuana, save perhaps for occasional testing, in order to make scientific comparisons with other narcotics, barbiturates, and amphetamines."
Having in mind the several federal statutes making the possession and use of marihuana a criminal offense, we conclude that the sufficiency of an indictment under 21 U.S.C.A. § 176a, in the case before us, is more properly guided by the standards enunciated in narcotics cases under 21 U.S.C.A. § 174 as defined in Wong Lung Sing v. United States, 9 Cir., 3 F.2d 780 and Pon Wing Quong v. United States, 9 Cir., 111 F.2d 751, supra. We hold that the indictment in question is sufficient to inform appellant fairly of the charge he is required to meet and is drawn with enough certainty to obviate any danger of subsequent prosecution for the same conduct. Indeed, appellant concedes as much and admits there has been no prejudice to him. We hold that the trial court did not err in overruling the motion to dismiss the indictment.
Appellant further contends that the activities of the Customs Agents leading up to his arrest were of such unlawful character that this prosecution could not properly be maintained. This objection is framed in terms of a motion to suppress evidence from such agents, which was denied, and by the tender of instructions to the jury relating to such alleged violations, which were refused by the trial court. Since this objection concerns the acts of the Government agents prior to the transfer ...