The opinion of the court was delivered by: ZAVATT
ZAVATT, Senior District Judge.
The co-defendant Mariano Guerrero (Guerrero) has been indicted and charged with a substantive count of illegal importation of cocaine (Count One) and a conspiracy count to possess cocaine with intent to distribute the same (Count Two). The conspiracy count does not allege any overt acts in furtherance of the conspiracy by either Guerrero or his alleged co-conspirator, the co-defendant De Viteri.
Guerrero has moved to dismiss the indictment on several grounds:
1. it fails to allege facts constituting a crime against the United States;
2. it fails to allege facts over which this Court has jurisdiction;
3. it is vague and uncertain;
4. it states conclusions rather than facts.
Upon the argument of the defendant's motion, defendant's counsel specifically attacked only Count Two of the indictment on the ground that it fails to allege a crime because it does not allege any overt acts.
18 U.S.C. § 371 is the general conspiracy statute. It has been construed to require that the indictment include an overt act, because the statute, by its terms, requires not only a conspiracy but also that one or more of the conspirators "do any act to effect the object of the conspiracy."
Congress enacted a special statute with reference to the importation, receipt, concealment, purchase or sale of any narcotic drug, after having been imported into the United States, and also with reference to a conspiracy "to commit any of such acts." 21 U.S.C. § 174 (with reference to any narcotic drug) and 21 U.S.C. § 176a (with reference to marijuana). These two sections of the United States Code (later repealed) did not, by their terms, require an overt act as a part of the crime of conspiracy. The language of these two sections, with reference to conspiracy, was added by the so-called Bogg's Act, 65 Stat. 767 (1951).
Following this 1951 amendment, several cases arose in which indictments, charging a conspiracy under §§ 174 and 176a, did not allege any overt acts. The first such case, squarely raising the question as to the adequacy of the indictment, was United States v. Gardner, 202 F. Supp. 256 (N.D.Cal.1962). In a well-reasoned opinion, Judge Carter denied a motion to dismiss conspiracy counts charging violations of 21 U.S.C. §§ 174 and 176a, upon the ground that a conspiracy to violate § 174 or 176a, is a specific crime which does not require an allegation of overt acts in the indictment. See also Ewing v. United States, 386 F.2d 10 (9th Cir. 1967), cert. denied, 390 U.S. 991, 88 S. Ct. 1192, 19 L. Ed. 2d 1299 (1968); Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967); United States v. Garfoli, 324 F.2d 909 (7th Cir. 1963). This Circuit has not ruled on the precise issue presented in United States v. Gardner, supra. In United States v. Armone, 363 F.2d 385 (2d Cir. 1966), the court remarked:
"We note at the outset of discussion of this issue [whether the government did prove an overt act in furtherance of the alleged conspiracy under 21 U.S.C. § 174] that the narcotics statute here involved contains a conspiracy provision which, unlike the general conspiracy statute, 18 U.S.C. § 371, does not in terms require the doing of 'any act to effect the object of the conspiracy.' One district court has concluded that an overt act need not be proven under 21 U.S.C. § 174. United States v. Gardner, 202 F. Supp. 256 (N.D.Cal.1962) . . . [We] do not think it necessary to explore this issue."
See also United States v. Clayton, 450 F.2d 16, n. 14 (1st Cir. 1971). The Armone and Clayton cases indicate that neither the 1st nor 2nd ...