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UNITED STATES v. WITHERS

September 12, 1969

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WALTER T. WITHERS, ALSO KNOWN AS INKY; LESLIE E. RATTET; AND JAMES WITZ, DEFENDANTS.



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 denied.

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 denied.

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 ...


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