UNITED STATES of America, Appellee, v. Charles E. LESTER and Edward Anthony Buccieri, Appellants.
Nos. 16093, 16094.
United States Court of Appeals Sixth Circuit.
July 8, 1966.
363 F.2d 68
“It was within the sound discretion of the trial judge as to whether the defendants should be tried together or severally and there is nothing in the record to indicate an abuse of such discretion when petitioner‘s motion for severance was overruled. * * * To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions. There is nothing in this record to call for reversal because of any confusion or injustice arising from the joint trial.”
The judgments of the court below as to all the appellants, except Bonanno, will be affirmed. The judgment as to Bonanno will be reversed and his case will be remanded with an instruction to enter a judgment of acquittal.
O‘Sullivan, Circuit Judge, dissented.
Howell W. Vincent, Covington, Ky., J. Leonard Walker, Louisville, Ky., on brief, for appellant, Buccieri.
Harry I. Subin, Dept. of Justice, Washington, D. C., Herbert J. Miller, Jr., Asst. Atty. Gen., Peter R. Richards, Atty., Dept. of Justice, Washington, D. C., on brief, for appellee.
Before O‘SULLIVAN and PHILLIPS, Circuit Judges, and MATHES, Senior District Judge.*
MATHES, Senior District Judge.
Charles E. Lester and Edward Anthony Buccieri appeal from the judgment entered upon a jury verdict finding them guilty as charged, in count one of an indictment, which alleged that appellants and another private citizen, one Carinci, conspired together and with three members of the police force of Newport, Kentucky, to commit an offense against the laws of the United States, in violation of
The offense averred to be the object of this conspiracy was to violate
In count two of the indictment, the police officers were accused of the commis-
As grounds for reversal of their conviction on the conspiracy count, appellants contend: (1) that the evidence was insufficient to support the conviction; (2) that in giving the jury an instruction which included reference to “persons unknown“, the trial court committed prejudicial error; (3) that the trial court likewise erred in refusing to instruct the jury: “Unless you find from the evidence that one or more of the [police officers] were acting under color of law and guilty of the alleged charges * * *, then the law is for the defendant, * * * Lester, and you shall so find * * *“; and (4) that since the police officers were acquitted on both counts, appellants’ motion after verdict for judgment of acquittal, pursuant to Rule 29(b) of the
In determining whether the evidence of guilt was sufficient to sustain the verdict, it is worth recalling that “[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” [Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).]
The evidence, direct and circumstantial, in the case at bar, together with the inferences which the jury could reasonably have drawn therefrom, combined to warrant the jury in finding inter alia the following facts: The Glenn-Tropicana, a combination nightclub and hotel in Newport, Kentucky, across the Ohio River from Cincinnati, had been favored for many years with somewhat-less-than-vigorous enforcement of the State laws prohibiting gambling and prostitution. In April of 1961, upon the announcement of George W. Ratterman as a “reform” candidate for sheriff, defendant Carinci, a co-proprietor of the Glenn-Tropicana, telephoned one Thomas Paisley and asked him to arrange a meeting for Carinci with Ratterman.
A few days later, on April 14, appellant Lester, attorney for the Glenn-Tropicana, telephoned a Newport photographer and asked him to talk to appellant Buccieri, another co-proprietor of the Glenn-Tropicana, about a picture. In due course, the photographer contacted Buccieri who told the photographer that his services would be needed “to take a picture of a man and a woman in a room“; and added the assurance: “Now, don‘t worry about anything, we will protect you.” The photographer gave Buccieri a telephone number where he could be reached at night.
On May 8, 1961, Paisley came to Cincinnati and had cocktails and dinner with Ratterman, commencing at about 5:45 in the afternoon, following which they met with Carinci at a Cincinnati restaurant. After consuming several drinks in the course of the evening, Ratterman and Carinci and Paisley went over to the Glenn-Tropicana for supper. Upon their arrival about 1:30 A.M., Ratterman and Paisley were ushered into Glenn-Tropicana‘s suite 314 on the third floor, near which an illegal gambling operation was regularly conducted. Appellant Buccieri then sent Rita Desmond, one of the club‘s showgirls upstairs to suite 314 to have a drink with Paisley and Ratterman. Shortly after Rita arrived, Ratterman, who was extremely drowsy by now, left the sitting room of the suite and lay down in an adjoining bedroom.
Carinci next directed April Flowers, another of the Glenn-Tropicana‘s showgirls, to stop her striptease act and go at once to suite 314 without bothering to change her costume. When April arrived, she was asked by Rita to go into
Meanwhile, approximately ten minutes after Ratterman had arrived at the Glenn-Tropicana, someone called the photographer‘s home, and left word for him to call Buccieri at the club. However, the photographer did not return the call. At 2:20 A.M., the gambling operations on the third floor were closed substantially earlier than usual, and the patrons were asked to leave the third floor.
At 2:32 A.M., an anonymous phone call was received at the Newport police station for one of the defendant police officers, who was told: “If you want to get George Ratterman, he is in Room 314 of the Glenn Hotel.” The three defendant officers thereupon went to the Glenn-Tropicana at 2:35 A.M., where they first arrested Carinci, and then April Flowers as she emerged from the bedroom of suite 314. That done, there followed a brief scuffle between the police officers and Ratterman, and the latter was taken into custody, wrapped in a bedspread. Testimony by the police officers that he was found with his trousers off was disputed by Ratterman, who said that his trousers had been removed from him by the officers.
Appellant Lester promptly arrived at the police station, after having called a bondsman who posted bail for April Flowers and Carinci, but refused to provide bail for Ratterman. Appellant Lester admitted that he had been up since 2:00 A.M., “when the Ratterman deal broke“—well more than a half hour before the arrests occurred. At approximately 4:00 A.M. following the arrests, all six persons accused in the indictment—including the three police officers—were seen together at the Glenn-Tropicana, and at the Flamingo Club an hour later.
Examination of Ratterman the following day disclosed traces of from three to four grams of chloral hydrate [“knockout drops“] estimated to have been ingested between 10:00 and 11:00 P.M. the previous evening.
Since the jury acquitted all the accused of the substantive offense charged in count two of the indictment, it would serve no useful purpose to recount here the evidence dealing particularly with that offense; other than perhaps to record that the police-court case against Ratterman was dismissed after his attorney was able to produce the photographer, whose account of the efforts to have him take a picture of the planned bedroom scene persuaded the City Attorney of Newport that the affair was a sham.
There was ample evidence to sustain the conviction of both appellants on the conspiracy count. Indeed, we must say that the evidence was ample to sustain a conviction of all defendants on both counts.
Turning now to appellants’ objections to the instructions given to the jury the record discloses, as appellants point out, that the District Court instructed the jury in the language of the indictment at one point during the charge and, in so doing, did say that if the jury should believe beyond a reasonable doubt that the six defendants named in the conspiracy count had conspired with each other “and with other persons to the grand jury unknown“, as charged, the defendants could be found guilty. But the District Judge went on to make it crystal clear that only the six named defendants were involved under the evidence in the case, by further instructing the jury that: “[T]he conspiracy charged in the first count * * * is a charge that these six defendants agreed among themselves to commit the unlawful act. * * *”
Moreover, no objection to the mention of “persons unknown” was made at the trial [see
The gist of appellants’ argument in support of their remaining contentions rests upon the assumption that since they, as private citizens, were incapable of acting “under color of law“, and hence were incapable of the offense defined in
This argument misconceives the function of
“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. [and]
“(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” [Italics added.]
In keeping with the provisions of
In the case at bar, therefore, both the indictment and the verdict must be read in light of the acquittal of the police officers, as if it were alleged, and the jury had found, that appellants had conspired willfully to “cause” innocent police officers to act “under color of law” to deprive Ratterman of his civil rights, in contravention of
To this appellants would reply that since it is one of the essential elements of the offense defined in
The short answer to this argument is that it was of doubtful enough validity prior to the 1951 amendment of
This doctrine is an outgrowth of common law principles of criminal responsibility dating at least as far back as Regina v. Saunders, 2 Plowd. 473 (1575); and of principles of civil responsibility established, by force of the maxim qui facit per alium facit per se, at least as early as the 14th century. [See: United States v. Gooding, 25 U.S. (12 Wheat.) 460, 6 L.Ed. 693 (1827); Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L.Rev. 689 (1930).]
Although a literal reading of the predecessor of present
It has been beyond controversy, then, at least since the 1951 amendment to
Finally, it is said that since acquittal of the police officers negatives any contention that they acted “willfully“, it was impossible for appellants as civilians to commit the conspiracy offense of which they stand convicted. [See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).] True it is, of course, that criminal intent is an essential element of each crime charged in the indictment; indeed an essential element of every felony.
It is but to quote the hornbook to say that in every crime there must exist a union or joint operation of act, or failure to act, and intent. However, this is far from suggesting that the essential element of criminal intent must always reside in the person who does the forbidden act. Indeed, the latter may act without any criminal intent whatever, while the mens rea—“willfulness“—may reside in a person wholly incapable of committing the forbidden act. When such is the case, as at bar, the “joint operation of act and intent” prerequisite to commission of the crime is provided by the person who willfully causes the innocent actor to commit the illegal act. And in such a case, of course, only the person who willfully causes the forbidden act to be done is guilty of the crime.
We can perceive no basis in reason or policy to distinguish a case of willfully causing innocent police officers, “acting under color of law“, to deprive another of his civil rights, from a case of willfully causing an innocent bank clerk to mail a fraudulently obtained check [Pereira v. United States, supra, 347 U.S. 1, 74 S.Ct. 358], or causing a lender to make a false report of prices paid for homes [United States v. Selph, supra, 82 F.Supp. 56], or causing a union representative to receive money unlawfully from employers [United States v. Inciso, supra, 292 F.2d 374], or causing a licensed dealer in firearms to fail to maintain required records [United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, supra, 250 F.Supp. 410].
Nor do we discern any rationale for refusing, as appellants suggest, to apply the conspiracy statute [
We read the charge in its entirety and find that the trial judge adequately instructed the jury that, under the evidence in the case, appellants could properly be convicted of conspiring willfully to cause
Of no consequence here is the fact that one reading the record before us might find it difficult, perhaps even impossible, to comprehend how the jury could have acquitted all the police officers of the conspiracy offense. It is not the province of the Court to inquire by what course of reasoning the jury may have reached seemingly inconsistent verdicts. Inconsistency of verdicts as to various defendants in a particular case has always been an exclusive prerogative of the jury. [See: United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943); Lazarov v. United States, 225 F.2d 319 (6th Cir. 1955); United States v. Austin-Bagley Corp., 31 F.2d 229 (2d Cir. 1929); cf. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); Grant v. United States, 255 F.2d 341, 342 (6th Cir. 1958).]
By acquitting the police officers, while convicting appellants of the conspiracy offense, the jury necessarily found that appellants conspired willfully to cause the police officers to act “under color of law” and, while so acting, to make an unlawful arrest of Ratterman, and attempt to bring about a false conviction—all as charged in the conspiracy count of the indictment.
We hold that the evidence in the case fully supports this verdict.
Appellants were fairly tried and fairly convicted. The judgment of the District Court is affirmed.
O‘SULLIVAN, Circuit Judge (dissenting).
I am unable to agree with my brothers of the majority.
Count I, under which appellants Lester and Buccieri were convicted, charged that they conspired with the Newport police officer Ciafardini and others to have the latter “while acting in their official capacity * * * wilfully deprive George W. Ratterman: * * * of the right to be free from arrest by an officer acting arbitrarily and without legal justification of cause” and further that the plan of the conspiracy was to have Ciafardini and the other officers arrest Ratterman, charge him with a violation of law and cause his conviction “all knowing him to be innocent.”
I read this to mean that appellants conspired with the officers to have these officers wilfully, arbitrarily and without legal justification arrest Ratterman, even though the officers knew that he had done nothing to warrant such arrest. But the jury found that no such plan was carried out, nor had the officers, the alleged co-conspirators, ever so conspired with appellants.
The government, faced with the jury‘s verdict acquitting the officers of all misconduct, changes the charge of the indictment to a plan by appellants to have the officers arrest Ratterman not wilfully and arbitrarily, but innocently. Its brief to us states the government‘s position on appeal as follows:
“Accepting the verdict of the jury on its face, it represented a finding that appellants conspired together to deprive Ratterman of his civil rights by causing the police, as their innocent dupes, to make an unwarranted arrest of George Ratterman.” (Emphasis supplied.)
That, however, is not what the indictment charged. Neither was such a case submitted for the jury‘s decision. But, even assuming the government‘s right to assert such a theory, their reasoning will not support the convictions.
Another way of reciting the government‘s position is to characterize appellants’ plan as one to create a situation which would cause police officers, acting innocently and with apparent cause therefor, to make an arrest. Such a plan, however, would not contemplate the accomplishment of a violation of
I am quite aware of the obviously correct rule that it was not necessary that Buccieri or Lester be themselves capable of committing the substantive offense. United States v. Inciso, 292 F.2d 374 (CA 7, 1961) cert. den. 368 U.S. 920, 82 S.Ct. 241, 7 L.Ed.2d 135; Brown v. United States, 204 F.2d 247, 250 (CA 6, 1953); United States v. Ramey, 336 F.2d 512, 514 (CA 4, 1964); Culp v. United States, 131 F.2d 93, 99 (CA 8, 1942). I find no case, however, holding that a person can be guilty of a
The government seeks to support its position by the language of
“Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” (Emphasis supplied.)
This is merely a codification of the familiar common-law principle, discussed by the majority, that if I make another person my unwitting tool, I am equally guilty as if I had acted directly. I at once repeat, however, that the jury acquitted the appellants as well as the police officers of Count II which charged the officers with the substantive offense and the appellants with aiding and abetting them. The jury‘s verdict can mean only that the offense described in
I recognize that to sustain the conviction of appellants we need not find ration-
The government speculates that the jury‘s exoneration of the police officers did not necessarily exhibit a conviction that they were actually innocent of the charged conspiracy. The appellee‘s brief says,
“For example, at the time of the trial one of the officers had been made Chief of Police, the jury might well have felt that his conviction, along with that of two other long-time members of the force, for an event which occurred two years in the past, might have a deleterious effect on the morale of the community, * * *. Alternatively, the jury might have been impressed with the presence of the officers’ families in the courtroom.”
However, such an argument carries the government too far since its reasoning would equally compel the abandonment of the long established rule that a jury may not convict only one of two or more alleged conspirators and exonerate those with whom the convicted one is said to have conspired. The rationale of this rule has been that with the acquittal of the other alleged conspirators, the possibility of establishing one of the “essential facts” of the conspiracy, i. e., the existence of two people who could have agreed, disappears. Cf. United States v. Austin-Bagley, supra, p. 233, and see also cases collected in Annos. 72 A.L.R. 1180, 1182, 1186; 91 A.L.R.(2) 700, 705. The Supreme Court of Tennessee took an analogous position in DeWees v. State, 390 S.W.2d 241, 244 (Tenn.1965) where it held that the acquittal of the only conspirator charged with committing an overt act required the dismissal of all alleged conspirators. Since the jury‘s verdict denied an “essential fact,” i. e., the performance of an overt act by one of the conspirators, the conspiracy charge could not stand. The Tennessee court held that this was so notwithstanding that there was sufficient evidence to support a guilty verdict as to all the conspirators had the jury so found. See also Herman v. United States, 289 F.2d 362, 368-369 (CA 5, 1961). I am aware of the generality that the acquittal of some members of a charged conspiracy does not necessarily forbid conviction of others. Baxter v. United States, 45 F.2d 487, 489 (CA 6, 1930); Langley v. United States, 8 F.2d 815, 819 (CA 6, 1925) and see Anno. 91 A.L.R.2d 700, 713. But such general rule is not controlling here.
The government‘s brief exposes its position by the assertion that “In the case at bar, we are assuming that the officers were not involved.” Inasmuch as there was no direct evidence of a conspiracy between appellants and the officers, the existence of it has to be inferred from what the officers did. But the jury found that the officers neither acted in violation of
While they do not deal directly with the question before us, I consider that the United States Supreme Court decisions in United States v. Price, et al., 383 U.S. 787, 86 S.Ct. 1152 (Mar. 28, 1966) (Nos. 59 and 60, Oct. Term, 1965) and United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170 (Mar. 28, 1966) (No. 65, Oct. Term, 1965) support the view that a charge that civilians conspired to violate
“[T]he allegation is broad enough to cover a charge of active connivance by agents of the State * * * amounting to official discrimination.”
and then went on to observe that,
“Although it is possible that a bill of particulars, or the proofs if the case goes to trial, would disclose no cooperative action of that kind by officials of the State, the allegation is enough to prevent dismissal of this branch of the indictment.” (383 U.S. 757, 86 S.Ct. 1177)
I cannot infer from this otherwise than that a lack of an allegation or proof of “connivance by agents of the state” would vitiate a conviction of violation of
“I understand this to mean that, no matter how compelling the proofs that private conspirators murdered, assaulted, or intimidated Negroes * * * the prosecution under the second numbered paragraph must fail in the absence of proofs of active connivance of law enforcement officers with the private conspirators in causing the false arrests.” (383 U.S. 776, 86 S.Ct. 1188)
I have studied the many other authorities cited in the briefs before us. I do not discuss them because they do not provide clear precedential guidance.2 It will be sufficient to say that, in my view, the statements therein which appear to give surface support to the government‘s position are inapposite because of their differing factual contexts. None deal relevantly with the special character of
I regret that I cannot join in sustaining the convictions of appellants. Appellants denied that they were the authors of Ratterman‘s arrest and charged that his consumption of Scotch whiskey and a willing approach to the lady known as April Flowers brought on his woe. But there was abundant evidence from which the jury could find that they wickedly conspired to disgrace Ratterman; that Lester, as a lawyer, suborned perjury; and that both, by malicious artifice, led the officers to arrest the innocent Ratterman. Such conduct would clearly offend state criminal statutes. Dealing with a like situation, the United States Supreme Court in Parr v. United States, 363 U.S. 370, 393, 394, 80 S.Ct. 1171, 1184, 1185, said,
“The strongest element in the Government‘s case is that petitioners’ behavior was shown to have been so bad and brazen, which, coupled with the inability or at least the failure of the state authorities to bring them to justice, doubtless persuaded the Government to
undertake this prosecution. But the showing, however convincing, that state crimes * * * were committed does not establish the federal crime * * * and, under our vaunted legal system, no man, however bad his behavior, may be convicted of a crime of which he was not charged, proven and found guilty in accordance with due process.” (Emphasis supplied.)
I would reverse the judgment of the District Court with direction to acquit and discharge the appellants.