The opinion of the court was delivered by: LEVET
The defendant Shackelford was tried and found guilty as charged under count 14 of the indictment, dated November 19, 1956. This count, which was the only count of the indictment submitted to the jury alleged that he conspired to violate specific provisions of the narcotics laws. It was charged that he conspired to violate Sections 4701, 4702(a), 4703, 4704(a), 4724(c) and 4771(a) of Title 26 U.S.C sometimes referred to as the Harrison Act.
Count 14 also charged that the defendant Shackelford conspired to violate Sections 173 and 174 of Title 21 U.S.C.A. commonly referred to as the Jones-Miller Act.
In addition, the general conspiracy statute, namely, Section 371 of Title 18 U.S.C., was cited at the conclusion of count 14.
The penalty applicable to a violation of the Harrison Act, as amended July 18, 1956, is set forth in Section 7237(a) of Title 26 U.S.C., which provides for imprisonment of a first offender for not less than 2 years or more than 10 years and, in addition, a fine up to $ 20,000 may be imposed.
The general conspiracy statute, Section 371 of Title 18 U.S.C., provides that a conspiracy to commit an offense against the United States is punishable by imprisonment up to 5 years, or a fine up to $ 10,000, or both.
The Jones-Miller Act, as amended on July 18, 1956, provides in part that anyone who conspires to violate said Act shall be imprisoned not less than 5 years or more than 20 years in the case of a first offense and, in addition, may be fined not more than $ 20,000.
Consequently, count 14 of the indictment charges the defendant David Shackelford with conduct which is punishable under 3 separate sections, each of which entails a different punishment.
Moreover, as a first offender, the defendant Shackelford would be eligible for a suspended sentence or probation under either Section 7237(a) of Title 26, or Section 371 of Title 18, and the benefits of Section 4202 of Title 18 would apply, that is, release on parole after serving one-third of his sentence
However, if punishment is awarded under Section 174 of Title 21, the imposition or execution of sentence may not be suspended, probation may not be granted and Section 4202 of Title 18 would not apply. See 26 U.S.C.A. § 7237(d).
At the outset it should be noted that count 14 alleges that the conspiracy commenced on or about the 1st day of January, 1951, and continued thereafter. The amendments of the Jones-Miller and Harrison Act, which increased the penalties for violations or conspiracies to violate these Acts, became effective July 19, 1956.
The defendant Shackelford was arrested on September 25, 1956. Therefore, it might be argued that the crime was completed while the old provisions of the said Acts were still in effect and that any law passed after commission of an offense which inflicts greater punishment for the crime than was provided by law at the time the offense was committed is ex post facto and hence unconstitutional. However, the indictment alleges, and this was supported by evidence and verdict, that the conspiracy was continuous. Moreover, Shackelford had not yet been arrested when the new laws took effect. Accordingly, statutes imposing greater penalties for a conspiracy, where the crime is still being carried on and continued after the date when the amendments became effective, do not violate the constitutional inhibition of expost facto laws. See Huff v. United States, 5 Cir., 1951, 192 F.2d 911, certiorari denied 342 U.S. 946, 72 S. Ct. 560, 96 L. Ed. 703.
However, there remains to be determined the problem concerning the issue of punishment.
Until the amendments of the Jones-Miller and the Harrison Acts, the rule obtained that an indictment alleging a conspiracy to violate several penal statutes 'is not duplicitous, for 'the conspiracy is the crime, and that is one, however diverse its objects," and, therefore, only the single penalty prescribed by the general conspiracy statute, i.e., Section 371, Title 18 U.S.C., can be imposed. See Braverman v. United States, 317 U.S. 49, 63 S. Ct. 99, 87 L. Ed. 23. Thus, the crime of conspiracy was separate and distinct and did not arise under the narcotic laws.
With the inclusion of the words 'or conspires' in the two narcotics statutes, i.e., Section 174 of Title 21 U.S.C.A., and Section 7237(a) of Title 26 U.S.C., a conspiracy to violate the narcotics laws is now a crime arising under these statutes. Consequently, an indictment charging a conspiracy to violate these laws need not refer to Section 371 of Title 18 U.S.C. It is also conceivable that persons might conspire to violate one statute without conspiring to violate the other. Thus, several persons might conspire to sell domestic narcotics, other than from the original stamped package, in violation of the Harrison Act. In such case, since the narcotics were not imported, nor ...