United States v. Alvis Patrick Daras, United States of America v. James Scott Kidd

These are separate appeals from convictions under a one-count indictment charging both defendants with violation of 21 U.S.C. § 841 (a) (1) (possession of cocaine with intent to distribute). The defendants were tried without a jury on a stipulated set of facts. They raise identical issues on appeal which their separate counsel argue in briefs which have an almost word for word similarity. We affirm.

The first contention is that the indictment should have been dismissed because percipient witnesses were not called before the grand jury, but reliance was upon hearsay evidence; also, that appellants should have had preliminary hearings. Both contentions are erroneous. As to the hearsay argument, Jack v. United States, 409 F.2d 522, 523-524 (9th Cir. 1969), holds contra, following Costello v. United States, 350 U.S. 359 , 76 S.Ct. 406 , 100 L.Ed. 397 (1956). Likewise, an indictment establishes probable cause and makes a preliminary hearing unnecessary. See Byrnes v. United States, 327 F.2d 825, 834 (9th Cir.), cert. denied, 377 U.S. 970 , 84 S.Ct. 1652 , 12 L.Ed.2d 739 (1964). The complaint of delay in securing the indictment is not borne out.

It was not error to refuse the…