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United States v. Nichols

September 18, 1963

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ALPHONSO NICHOLS, DEFENDANT-APPELLANT



Author: Schnackenberg; Wisdom

Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Alphonso Nichols, defendant, has appealed from a judgment of conviction entered by the district court on an indictment charging violations of the United States narcotics laws, upon which he was sentenced to the custody of the attorney-general for a period of seven years on each of nine counts, to run concurrently.

Counts VIII and IX were dismissed on motion of the government. The various remaining counts respectively charged defendant with unlawful receipt, concealment, and sales of heroin in violation of 26 U.S.C.A. § 4705(a) and 21 U.S.C.A. § 174 both as amended by the Narcotic Control Act of 1956.

Defendant pleaded not guilty and was tried before a jury. His motion for a new trial was denied.

1. In this court defendant first contends that the district court did not tell the jury the details of what the indictment charged, but merely gave the indictment to the jury and told them that they were free to examine it "* * * if you like."

No objection based upon this alleged error was made at the trial, but we feel justified, in view of the nature of defendant's contention, to consider it in this court.

We have read the record and find that the jury was instructed, inter alia:

"Now, let's deal specifically with the charges that are contained in the counts of the indictment which you are going to consider.

"The defendant is charged in Counts I, III, V and X, that is, four counts, with violation of Section 4705(a) of the Internal Revenue Code of 1956, which reads as follows:

"'It shall be unlawful for any person to sell, barter, exchange or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged or given on a form to be issued in blank for that purpose by the Secretary of the Treasury or his delegate.'

"In Counts II, IV, VI and VII of the indictment, the defendant is charged that on April 5, 1961, April 10, 1961, April 19, 1961, May 12, 1961 and June 27, 1961, that he then and there, fraudulently and knowingly received, concealed and facilitated the transportation and concealment, after unlawful importation into the United States of a quantity of a certain drug, to-wit, under Count II, 15.9 grams, Count IV, approximately 16.6, Count VI, approximately 15.950 grams, Count VII, approximately 42.320 grams, Count XI, approximately 11.305 grams, knowing the same to have been imported into the United States contrary to law, in violation of Section 174, Title 21, of the United States Code, as amended by the Narcotic Control Act of 1956.

"The statute of the United States under which this violation is charged reads, in pertinent part, as follows:

"'Whoever fraudulently or knowingly 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 contrary to law, shall be,' et cetera.

"This is also part of the statute:

"'Whenever on trial for a violation of this section, the defendant is shown to have or 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.'

"In this instance, of course, the defendant has denied having possession of any narcotic drugs at any time."

In United States v. Jonikas, 7 Cir., 197 F.2d 675, we approved a conviction of defendant for possessing and passing counterfeit bills. At page 679 of 197 F.2d we discussed defendant's contention that the district court failed to instruct the jury in relation to certain charges in the indictment. We said:

"* * * Failure to describe more specifically the separate counts of the indictment did not deprive the defendant of any constitutional right nor deprive the court of jurisdiction to render the judgment."

We feel that the submission of the indictment to be examined by the jury, at its option, was of dubious value, although harmless.

We hold that the court's instructions as to the charges in the indictment were sufficient.

2. Defendant argues that the district court refused to properly consider the element of knowledge and the element of intent, in its instruction on ...


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