Juan Gutierrez Rodriguez, Appellant, v. United States of America, Appellee, 218 F.2d 810 (5th Cir. 1955)

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US Court of Appeals for the Fifth Circuit - 218 F.2d 810 (5th Cir. 1955) January 7, 1955

Jake Jay Reich, San Antonio, Tex., for appellant.

Bradford F. Miller, Asst. U. S. Atty., Lonny F. Zwiener, Asst. U. S. Atty., Charles F. Herring, U. S. Atty., San Antonio, Tex., for appellee.

Before HOLMES and TUTTLE, Circuit Judges, and ALLRED, District Judge.


This case presents the same question as to the sufficiency of an indictment for receiving and concealing a narcotic drug knowing it to have been imported contrary to law as in United States v. Rodgers, 5 Cir., 218 F.2d 536. We there held, as we do here, that in a prosecution for receiving and concealing, under the second clause of section 174, Title 21, it is not necessary to allege that the narcotics had been imported contrary to law where it charged that the defendant knew that it had been so imported.

Here appellant made no motion to dismiss, as did Rodgers, but moved in arrest of judgment on the same ground. Since the indictment was good, there is no necessity for discussion of appellant's insistence that he did not waive the defect by failure timely and properly to raise the question before trial under Rule 12(b) (2) and (3), Federal Rules of Criminal Procedure.