Steve Leroy Cordova, Appellant, v. United States of America, Appellee, 303 F.2d 454 (10th Cir. 1962)

Cordova appeals from his conviction and sentence on a 3-count indictment charging violations of Section 2(c) of the Narcotic Drugs Import and Export Act, 70 Stat. 570 (1956), 21 U.S.C. A. § 174.¹  It is first urged that there is joined in each count of the indictment two or more distinct offenses, and that a motion to dismiss should have been sustained because the counts were duplicitous. Each count alleges that Cordova "did fraudulently, knowingly and wilfully receive, conceal, sell and facilitate the transportation and concealment of a narcotic drug, * * *." The law is settled that when a statute denounces several acts as a crime, an indictment or information drawn in the language of the statute is not duplicitous if all the acts are pleaded conjunctively in one count. Crain v. United States, 162 U.S. 625, 636, 16 S. Ct. 952, 40 L. Ed. 1097; Kitchens v. United States, 10 Cir., 272 F.2d 757, cert. denied 362 U.S. 942, 80 S. Ct. 89, 4 L. Ed. 2d 772; Travis v. United States, 10 Cir., 247 F.2d 130; Cathcart v. United States, 10 Cir., 244 F.2d 74, cert. denied 354 U.S. 924, 77 S. Ct. 1387, 1 L. Ed. 2d 1439; McDonough v. United States, 10 Cir., 227 F.2d 402; Madsen v. United States, 10 Cir., 165 F.2d 507.

The remaining contentions, that the failure to endorse the government's witnesses on the indictment is a violation of the defendant's constitutional right to be confronted by the witnesses against him, and that Section 2(c) of the Narcotic Drugs Export and Import Act is unconstitutional because of the presumption therein,²  are without merit. There is no statutory or constitutional requirement that the prosecution endorse the names of the government's witnesses on the information or indictment,³  or even disclose them to the defense. Dean v. United States, 8 Cir., 265 F.2d 544; Bohn v. United States, 8 Cir., 260 F.2d 773, cert. denied 358 U.S. 931, 79 S. Ct. 320, 3 L. Ed. 2d 304; United States v. Stein, (S.D.N.Y.) 18 F.R.D. 17; 14 Am.Jur. Criminal Law § 208 (1938). Cf. Knight v. Hudspeth, 10 Cir., 112 F.2d 137, cert. denied 311 U.S. 681, 61 S. Ct. 62, 85 L. Ed. 439; Moore v. Aderhold, 10 Cir., 108 F.2d 729; United States v. Schneiderman, (S.D. Cal.) 104 F. Supp. 405, 409. In Velasquez v. United States, 10 Cir., 244 F.2d 416, 418, in considering the constitutionality of Section 2(c) of the Narcotic Drugs Import and Export Act, we said:

"Another ground of the motion for a directed verdict of acquittal upon the charge contained in the first count of the indictment was that the provision in the statute making proof of possession of a narcotic drug sufficient evidence to warrant conviction unless the defendant explains such possession to the satisfaction of the jury is unconstitutional. The contention does not call for extended discussion. It is enough to say without laboring the question that the constitutional validity of the provision in the statute has consistently withstood like challenge. Yee Hem v. United States, supra [268 U.S. 178, 45 S. Ct. 470, 69 L. Ed. 904]; Dear Check Quong v. United States, supra [82 U.S.App.D.C. 8, 160 F.2d 251]; Stein v. United States, 9 Cir., 166 F.2d 851, certiorari denied 334 U.S. 844, 68 S. Ct. 1512, 92 L. Ed. 1768."

This conclusion was reaffirmed in Griego v. United States, 10 Cir., 298 F.2d 845.

We find no prejudicial error in the record.

Affirmed.