United States v. Julio Zavala

Appellant Julio Zavala was indicted on March 4, 1983, for multiple violations of federal narcotics laws. Zavala was charged in count one with conspiracy to import and distribute cocaine ( 21 U.S.C. §§ 846 , 963); in counts two and nineteen with possession of cocaine for sale ( 21 U.S.C. § 841 ); in counts three through eight with unlawful use of a communications facility ( 21 U.S.C. § 843 (b)); in count twenty with use of a firearm in commission of a felony ( 18 U.S.C. § 924 (c)(1)); and in count twenty-five with conducting a continuing criminal enterprise ( 21 U.S.C. § 848 ). The remaining counts in the indictment involved the other defendants. Pursuant to a negotiated plea agreement, appellant pleaded guilty to counts one and nineteen, and the government moved to dismiss counts two and twenty. Appellant agreed to a bench trial on stipulated facts and additional evidence on count twenty-five.

The district court, . 622 F.Supp. 319 , convicted on counts three through six, on count eight, and on count twenty-five. Pursuant to the plea agreement, the court set aside the judgment of conviction on count one. The court sentenced Zavala to ten years confinement on count nineteen, ten…

dissenting:

Because the indictment in this case was inadequate, we should reverse Zavala’s conviction. I therefore respectfully dissent.

I. General Principles

The fifth amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment 1 or indictment of a Grand *529 Jury_” U.S.Const, amend. V. Inasmuch as the presentment has fallen into desuetude, the use of an adequate indictment has become a constitutional imperative. As explained by a leading treatise: “The use of a presentment is obsolete in the federal courts, and is not authorized by Rule 7 [of the Federal Rules of Criminal Procedure]. Accordingly, where the constitutional provision is applicable, an indictment must be used.” 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 121, at 338 (1982). A constitutionally sufficient indictment, consequently, must precede any conviction for a “capital, or otherwise infamous crime.”

The Supreme Court has declared that “an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to…

839 F.2d 523 UNITED STATES of America, Plaintiff-Appellee, v. Julio ZAVALA, Defendant-Appellant. No. 85-1091. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 16, 1986. Decided Jan. 26, 1988. Judd C. Iversen, San Francisco, Cal., for defendant-appellant. Mark N. Zanides, Asst. U.S. Atty., U.S. Dept. of Justice, San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before REINHARDT, BRUNETTI and KOZINSKI, * Circuit Judges. PER CURIAM: 1 Appellant Julio Zavala was indicted on March 4, 1983, for multiple violations of federal narcotics laws. Zavala was charged in count one with conspiracy to import and distribute cocaine ( 21 U.S.C. Secs. 846 , 963); in counts two and nineteen with possession of cocaine for sale ( 21 U.S.C. Sec. 841 ); in counts three through eight with unlawful use of a communications facility ( 21 U.S.C. Sec. 843 (b)); in count twenty with use of a firearm in commission of a felony ( 18 U.S.C. Sec. 924 (c)(1)); and in count twenty-five with conducting a continuing criminal enterprise ( 21 U.S.C. Sec. 848 ). The remaining counts in the indictment involved the other…