The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER ON PRETRIAL MOTIONS SUBMITTED BY DEFENDANTS
RATTET AND WITHERS
Count One of the two-count indictment charges that the three
defendants, Walter Withers, Leslie Rattet, and James Witz,
fraudulently and knowingly received, concealed, bought, sold, and
facilitated the transportation and sale of 136.547 grams of a
mixture containing cocaine hydrochloride, a narcotic drug, after
its importation into the United States contrary to law with
knowledge that the drug had been so imported, in violation of
Title 21, United States Code, Section 174. Count Two charges that
defendant Rattet unlawfully sold, bartered, exchanged, and gave
away 136.547 grams of the same mixture to one Raymond L. Vinsik
not in pursuance to a written order on a form issued for that
purpose by the Secretary of the Treasury of the United States, in
violation of Title 26, United States Code, Section 4705(a).
MOTION TO DISMISS THE INDICTMENT
Defendant Rattet has moved to dismiss the indictment on the
grounds that it is vague, that it does not state an offense under
the laws of the United States, that it does not allege facts
concerning essential elements of the offense, and that Counts One
and Two are multiplicious. Defendant Withers additionally has
moved to dismiss Count One on the ground that the statutory
presumption of knowledge of unlawful importation from the fact of
possession contained in Section 174 violates the Fifth Amendment.
The indictment substantially incorporates the wording of Title
21, Section 174, and Title 26, Section 4705(a). The date of the
offense, the statute violated, and the essential facts
constituting the offense are clearly stated, and as to Count Two,
the purchaser of the drug is named. The defendants are
sufficiently apprised of the nature of the offense charged
against them, there is no uncertainty, and all the requirements
of Rule 7(c) of the Federal Rules of Criminal Procedure are met.
Further, Counts One and Two state separate and distinct
offenses arising out of the same conduct and cannot be dismissed
as multiplicious. Rather, the combination of Title 21, Section
174, and Title 26, Section 4705(a), is normal procedure. See,
e.g., United States v. Spencer, 415 F.2d 1301, 7th Cir. Aug. 22,
1969; Morgan v. United States, 391 F.2d 237 (9th Cir. 1968).
Additionally, Count One specifically charges the defendants
with knowledge that the cocaine hydrochloride had been imported
into the United States contrary to law and makes no reference to
the presumption of Title 21, Section 174. Defendant Withers'
argument that the presumption is unconstitutional is, therefore,
premature at this stage since the knowledge element may be proved
independently of the statutory presumption. It should be noted,
however, that the constitutionality of Section 174 has been
upheld repeatedly. See, e.g., Morgan v. United States,
391 F.2d 237 (9th Cir. 1968); United States v. Peeples, 377 F.2d 205 (2nd
Cir. 1967); Garcia v. United States, 373 F.2d 806 (10th Cir.
1967); Thomas v. United States, 372 F.2d 252 (5th Cir. 1967);
United States v. Coke, 364 F.2d 484 (2nd Cir. 1966) cert. den.,
386 U.S. 918, 87 S.Ct. 877, 17 L. Ed.2d 789 (1967) (specifically
as to cocaine hydrochloride), and that the recent decision in
Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57
(1969), dealt with a domestically
produced drug. Therefore, the motion to dismiss the indictment is
MOTION FOR A BILL OF PARTICULARS
Defendants Rattet and Withers have moved this court for a bill
of particulars. They request in substance:
1. The exact time and location of the offenses
charged in Counts One and Two;
2. The precise manner in which both alleged offenses
were committed, and
3. The names and addresses of all those present at
the scene of the alleged offenses.
The Government has answered the first request. Requests 2 and
3 both involve either evidentiary matters or names of witnesses.
These matters are not discoverable as of right by a bill of
particulars, and it is within the trial court's discretion to
deny such requests for evidentiary detail. United States v.
Wells, 387 F.2d 807 (7th Cir. 1968); United States v. Micele,
327 F.2d 222 (7th Cir. 1964). The motion, as to requests 2 and 3, is
Defendant Withers additionally moves for discovery and
production of any evidence obtained by electronic surveillance.
The Government has partially answered this request by stating
that defendant Withers was not the subject of illegal electronic
surveillance. This is not a sufficient answer under Alderman v.
United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969),
in which the Supreme Court indicated that all surveillance
records to which a defendant has standing to object should be
turned over to him. The Supreme Court further held that one has
sufficient standing only if he himself was the subject of the
surveillance or if the surveillance was undertaken on his
premises. Here, however, the defendant attempts to bypass these
limits by requesting the production of all electronic
surveillance involved in the case. This he cannot do. The
Government is directed to declare whether it has any evidence
obtained by electronic surveillance of the defendant Withers or
of his premises and to disclose such ...