¶1Raymond W. Weaver, Jr., Denver, Colo., for appellant.
¶2John S. Pfeiffer, Asst. U. S. Atty., for Dist. of Colo., Denver, Colo. (Donald E. Kelley, U. S. Atty., for Dist. of Colo., Denver, Colo., on the brief), for appellee.
¶3Before PHILLIPS, MURRAH and LEWIS, Circuit Judges.
¶5Appellant 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.
¶6*912An 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.”
¶7Reversed with instructions to dismiss the indictment.
¶11(dissenting).
¶12Where an indictment charges a conspiracy to commit an offense against the United States, the offense which is the object of the conspiracy need not be charged with that degree of particularity necessary where commission of the substantive offense, itself, is charged.1
¶13Here, the indictment, in my opinion, sufficiently described and identified the substantive offense which the- appellants were conspiring to commit to apprise the appellant adequately of the charge against her and to enable her to plead double jeopardy if she should thereafter be charged with the same offense.
“That during the period from on or about the 1st day of April, 1957, to on or about the 18th day of October, 1957, at Nogales, Republic of Mexico, Tucson, Arizona, El Paso, Texas, Albuquerque, New Mexico, Denver, Colorado, and elsewhere, James W. Lewis, also known as Jimmy Six, also known as James Miller; Blair Jones, also known as Robert Jones; James G. Burley, also known as Gerald Burley; Betty Robinson, also known as Betty Burley; Margery Ann Davidson, and divers other persons to the grand jury unknown, did knowingly, wilfully, unlawfully and feloniously combine, conspire, confederate and agree to fraudulently and knowingly receive, conceal, transport and sell narcotic drugs, to-wit, heroin, after the heroin is imported and brought into the United States contrary to law, in violation of 21 U.S.C. § 174.”
¶14I would affirm.