115 F. 343 | S.D. Ga. | 1902
The indictment in this case is demurred to upon many grounds, and a plenitude of decided cases have been cited in the exhaustive arguments of counsel for and against the demurrer. The principles of criminal pleading to which these authorities relate are familiar, and it seems serviceable to a satisfactory determination of the questions raised by the demurrer to analyze the indictment in view of the law said to have been violated, and determine whether it is sufficient, in the language of the constitution, to “inform the accused of the nature and cause of the accusa
Section 1025, Rev. St., provides:
“No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment or other proceeding therein be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant”
The indictment in this case first sets out the scheme of the conspiracy, which it is alleged that the accused afterwards formed. This scheme, as described, consisted generally in the collusive, fraudulent, irregular, or illegal subordination of the power of the engineer officer in charge of the Savannah district to the purpose of the conspirators. That purpose was to secure all of the bidding on the government works here, to exclude all competitors, to so frame the specifications as to leave it at the option of the engineer officer whether he would accept an expensive or a cheap mattress for jetty works or training walls, to compel other bidders not favored to furnish the expensive mattress, to so construe or to so inspect the work of his co-conspirators as to enable them to furnish the cheap and inexpensive mattress and to charge the government all the while for the costly and more valuable mattress, to approve their accounts presented as a result of this fraudulent work so that they might secure pay from the treasury, and, when in funds as a disbursing officer, to pay these accounts himself. In the statement of this scheme we find fully stated the powers of the engineer officer, and this statement of his powers will serve to throw light upon every ground of the indictment. To condense the language used by the pleader:
“As such officer in charge of said Savannah district, he was vested with' sundry powers, duties, and discretion during said period, and, amongst other things, with power in devising and drafting from time to time specifications for contracts for the improvements proposed to be made in said district; in drafting and suggesting forms of advertisements for giving notice to the public that competitive bids would be received by him; in fixing the time such advertisements would be published prior to the opening of bids; in suggesting and causing to be fixed and fixing the time designated in specifications for contracts within which the successful bidder would be required to commence work; in giving out information in regard to such contracts to be let; in receiving proposals for and recommending the awarding of such contracts, and in approving or rejecting the bonds required to be given 'by such contractors; in superintending the work to be done by such contractors in said-district; in approving and accepting or rejecting the work done by such contractors, according as the same was in accordance with the requirements of such contracts or not; in suggesting and approving modifications of such contracts; in approving or rejecting the accounts rendered to him by such contractors for work done or claimed by such contractors to be done by them, according as said accounts should be fair and honest or false and fraudulent; and, when in funds, as a disbursing officer, with power, duty, and discretion in paying such contractors or refusing to pay such contractors the amounts claimed by them to be due for work done according as such claims were honest and fair or false and fraudulent.”
It is perhaps difficult to overstate the importance of the averments just quoted in their effect to clear away the difficulties which are presented by the mooted questions now before the court. This state
Tims understanding the plot or device ascribed to the persons .act cused, we next find in the indictment the first charge of conspiracyi There are sundry definitions of conspiracy which are familiar. For the purposes of this case, without stating the usual antithesis, if is q combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose. Let us consider next what are the particular conspiracies denounced by the laws of th'é United States, with which these prisoners are charged. ‘ They are de? fined by sections 5440 and 5438, Rev. St. Section 5440 provides: , \
“If two or more persons conspire, either to Commit an offence against thé United States, or to defraud the United States in any manner or for any puF pose, and one or more of such parties do any act to effect the object of the conspiracy, ¿11 the parties to such conspiracy shall be liable tó a penalty of not less than one thousand dollars and not more than ten thousand dollars; and to imprisonment not , more than two years.”
Section 5438 provides:
“Every person who makes or causes to be made or presents or .causes to be "presented, for payment or approval to or by any person or officer in the*347 civil, military or naval service of the United States, any claim upon or against the United States, or any department or officer thereof, knowing such claim to he false, fictitious or fraudulent, * * * or who enters into any agreement, combination or conspiracy to defraud the government of the United States or any department or officer thereof, by obtaining payment or allowance of any false or fraudulent claim, * * * shall be imprisoned at hard labor for not less than one nor more than five years or fined not less than one thousand dollars nor more than five thousand dollars.”
Now, we know from the brief analysis of the indictment the plot and device for the alleged conspiracy. We know the law which denounces it. It will be observed that the statute makes penal a conspiracy to commit any offense against the United States or to defraud the United States in any manner or for any purpose. What is equally important, it makes it penal for the parties accused to do any act to effect the object of the conspiracy. It further makes penal the act of knowingly presenting for payment or approval any false, fictitious, or fraudulent claim, and particularly the act of entering into any agreement or conspiracy to defraud the government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim.
Now, we next inquire, what is the particular conspiracy charged upon the accused as a violation of these comprehensive statutes enacted to protect the government and the funds of the people of the United States in its treasury. This is set forth in the last clause of the first count of the indictment. Avoiding the technical verbiage used, it is charged that on the ist day of January, 1897, all of the alleged conspirators were proceeding with the construction of jetties at Cumberland Sound and training walls at Savannah. This was under two contracts which had been made on the 8th day of October, 1896, obtained by the alleged conspirators for their secret benefit and in the name of the Atlantic Contracting Company, a corporation under the laws of New York, of which Greene and two of the Gaynors had control, “which contracts had been so obtained fraudulently from the United States by means of said fraudulent schemes and devices hereinbefore set forth,” and that the parties accused unlawfully, knowingly, and feloniously, and with other persons to the grand1 jurors unknown, did conspire to defraud the United States of large sums of money by means of applying said fraudulent scheme to the execution and completion of the work secured by the contracts made on the 8th of October, 1896. To obtain the money for this purpose, this count charges that it was conspired a fraudulent account should be rendered to Oberlin M. Carter, as such engineer officer as aforesaid, and generally to carry said fraudulent scheme into execution by the obtaining of contracts of like character which might thereafter be let in said Savannah district by the United States through the said Oberlin M. Carter, as such engineer officer, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the said United States. In support of this count of the indictment, which, as we have seen, comprehends the description of the plot and device of the conspiracy and the conspiracy itself, there are four other counts, numbered 2, 3, 4, and 5. These counts contain averments of overt acts alleged to have been done by the accused in pursuance of
The first count, setting out the general plot and device, and the conspiracy of 1897, with the overt acts herein described in the second, third, fourth, and fifth counts, constitute a separate and distinct' feature of the indictment. The first cuint is attacked by the defendants because it charges a conspiracy in 1891 and another in 1897, and they insist that this makes the count void for duplicity. We are not able to perceive the correctness of this contention. The indictment charges that the fraudulent scheme was first devised, concocted, and put in operation about the year 1891, and has been continuously in process of execution until on or about the 1st day of October in the year 1899. As a result of this scheme, the indictment charges that these parties got control of the contracts for river and harbor improvements in this district; and the conspiracy charged in the first count, as we have seen, is that, having thus fraudulently obtained two contracts, namely, those dated the 8th of October, 1896, — one for the construction of jetties at Cumberland Sound, and the other for the construction of training walls in the harbor of Savannah, — they applied the fraudulent scheme to the execution and completion of the work under those particular contracts tc defraud the United States of divers large sums of money But, say the defendants, it was not possible to have made a conspiracy on the 1st day of January, 1897, to the effect that Carter should s<- fraudulently exercise the power of his office and the discretion vested in him that he could cut off competition in bidding for contracts to be let by the United States, so as to relate to the contracts of October 8, 1896, for on the 1st day of January, 1897, all bids for contracts of October 8, 1896, had been offered. Hence, say they, it was impossible to apply this conspiracy of January 1, 1897, to the contracts of October 8, 1896; nor was it possible on January 1, 1897, that the fraudulent device to the end that work in said district should be let at high and exorbitant cost to the United States, and done at little cost to the contractors, and in a worthless manner, could relate to contracts of 1896; and so they argue with regard to all the other alleged methods of the plot and of the conspiracy. This is, however, by no means a practical or wholesome view of the power of the law over offenders who enter upon that most subtle and dangerous of all crimes, — a continuous.conspiracy. It is a crime in which organization, combination, leadership, numbers, the power and effectiveness of astute and trained intelligences can all be directed, as an army by a
, “The offense Is the conspiracy. Some act by some one of the conspirators is required to show, not the unlawful agreement, but that the, unlawful agreement, while subsisting, became operative. The offense of conspiracy is committed when* to the intention to conspire, is added the actual agreement; arwj this intent to conspire, coupled with the act of conspiring, completes the offense intended to be created by the statute, notwithstanding the requirement that the prosecution show, by some act of some one of the conspirators tha't the agreement went: into actual operation. If* then, an indictment correctly charges an .unlawful combination and agreement as actually made, and, in addition, describes an act by any one of the parties to the unlawful -agreement, as an. act intended to be relied on to show the agreement in ‘ operation, it is sufficient, 'although upon the faee of the'indictment it-does not appear in what manner the act described would tend to-effect the object of the -conspiracy. It is Sufficient if the act be so described as to apprise the, defendant ^rhaj: act is intended to be given in evidence as tending tp-jSbow that the unlawful agreement was put in operation, without its being made to appear to the court, upon the face of the indictment, that the act mentioned is 'necessarily 'calculated to) effect the.object of the unlawful com*352 bination charged. It is not the case of an attempt to commit crime. The crime is committed when the combination is made, and the act of one of the conspirators is not required by the statute to show the intent. That is inferred from the unlawful act of combining to defraud or to commit an offense; but the object of requiring proof of some act in furtherance of the unlawful agreement is to show that the unlawful combination became a living, active combination.”
It is true that in the case of U. S. v. Crafton, 4 Dill. 145, 25 Fed. Cas. 681, 682, Judge Dillon uses this language, on which the defendants strongly rely;
“Under the recognized rules of criminal pleading, it is not sufficient to allege generally a conspiracy to defraud; but the nature of the fraud, and, to the required extent, the manner in which or means by which it was to be effected, must be averred.”
An examination of that case shows that the contemplated fraud depended entirely upon the passage of a future act of congress to make it effective, and so it was held by the court to be impossible. It is true that the nature of the fraud, and, “to the required extent,” the manner in which or means by which it was to be effected, must be averred; but we think that Judge Benedict has afforded an admirable statement of what constitutes the required extent to which an overt act in a conspiracy defined by this clause of thie Revised Statutes must be set out.
Reliance in support of the demurrer is also placed on Cruikshank’s Case, 92 U. S. 542, 23 L. Ed. 588. In that case the indictment failed to specify any particular right which the conspirators intended to hinder or prevent. This was held too vague and general. It is true, moreover, that, even in the very full statement of the court as to the essentials of an indictment in that case, it does not appear to require more than reasonable particularity of time, place, and circumstances. It is deemed superfluous to multiply precedents upon a topic so familiar. It may, however, be added that the views of Judge Benedict, above quoted, were in substance affirmed by the supreme court of the United States in U. S. v. Britton, 108 U. S. 204, 205, 2 Sup. Ct. 536, 27 L. Ed. 700. There Justice Wood declares:
“Tbe provision of tbe statute that there must be an act done to effect tbe object of tbe conspiracy merely affords a locus poenitentire, so that before tbe act is done either one or all of tbe parties can abandon their design, and thus avoid tbe penalty prescribed by tbe statute.”
A careful examination of the authorities cited by counsel for the accused has afforded nothing inimical to the conclusion that the first five counts of this indictment are sufficient.
In Blitz v. U. S., 153 U. S. 315, 14 Sup. Ct. 924, 38 L. Ed. 725, the prisoner was indicted for voting under the name of another person at an election at which a representative in congress and also state officers were to be elected; but the indictment was held fatally defective, because it failed to show that the accused voted for representative in congress. The accused may have voted for a state officer at that election. The relation of that precedent to the case at bar is, therefore, not discoverable. In the case of Evans v. U. S., 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830, Justice Brown,
“Every element of the offense being set forth in the earlier part of the count, there was no necessity of repeating it when the particular credit misapplied is described. * * * While the rules of criminal pleading require that the accused shall be fully apprised of the charge made against him, it should, after all, be borne in mind that the object of criminal proceeding is to convict the guilty as well as to shield the innocent, and no impracticable standard of particularity should he set up whereby the government may be entrapped into making allegations which it would be impossible to prove.”
In the case of Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419, we are not surprised to find that the court holds that a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court, unless it appear that he knew or had notice that justice was being administered in such court.
In U. S. v. Hess, 124 U. S. 486, 8 Sup. Ct. 571, 31 L. Ed. 516, where the averment was that, the defendant having devised a scheme to defraud divers other persons to the jurors unknown by use of the mails, and did not state what the scheme was, Justice Field remarked :
“The absence of all particulars of the alleged scheme renders the count as defective as would be an indictment for larceny without stating the property stolen, or its owner, or the party from whose possession it was taken.”
These quotations will serve to make plain the general character of the precedents cited by counsel for the accused. Their soundness and controlling character is incontestable, it is true, but their kinship to the issue before the court is many degrees removed.
This brings us to the sixth count of the indictment. In appropriate language it charges that the alleged conspirators hereinbefore mentioned conspired to defraud the United States of large sums of money by means of a fraudulent scheme devised by them with the engineer officer with relation to river and harbor improvements in the Savannah district. The averments are similar to those set out in the first count, and relate in part to future contracts. They further charge that large amounts of unnecessary and useless work should be fraudulently undertaken and done under the contracts by the contractors who are alleged to be co-conspirators with Carter, the engineer officer. The count further charges that Carter, as such engineer officer in charge, would exercise the powers of his office fraudulently and corruptly in favor of the contractors in such contracts as might be so obtained by the alleged conspirators or other persons or corporation for their secret benefit, and that he would falsely and fraudulently exercise the powers, duties, and discretion of his office in the approval and acceptance of the work so fraudulently done, so that the contractors would receive payment for the construction of such works at exorbitant rates for the poorest and cheapest class of material and work. This is an additional and independent charge of conspiracy. It does not depend upon the original scheme set out in the first count of the indictment. It is,
“The conspiracy charged in this count relates wholly to future contracts to be let thereafter, — that is, after January 1, 1897, — while the overt acts, stated in counts seven and eight relate wholly to the prior contracts of October 8, 1896. On this additional ground counts six, seven, and eight would seem to be necessarily bad.”
But the supreme court has recently held in this case that a decision on removal of indicted persons from one state to another for the purpose of trial is not to be regarded as adjudging the sufficiency of the indictment in law; and therefore, even had Judge Brown pronounced this indictment bad on this point, his opinion, however great the respect to which it is entitled in an advisory sense, must be regarded as an instance of the dictum which judges arguendo occasionally pronounce, and not as authority. Since it is true, as stated by the supreme court, that a decision on such a hearing is not to be regarded
“The law considers that wherever they act there they renew, or perhaps, to speak more properly, they continue, their agreement; and this agreement is renewed or continued as to all whenever one of them does an act in furtherance of their common design.”
The ninth and tenth counts present separate charges. They are framed under section 5438, Rev. St. In the ninth the accused, who are the same parties defendant hereinbefore named, are indicted for conspiracy to defraud the government of the United States by obtaining the “allowance” and payment by the United States, through Oberlin M. Carter, engineer officer, of a certain fraudulent claim, which said fraudulent claim was then and there a claim for labor and materials said to have been furnished by the Atlantic Contracting Company under a contract entered into on the 8th day of October, 1896, for the improvement of Cumberland Sound. This amounted to $25,447.95. The overt act charges the presentation of such claim. The tenth contains the same charges with relation to a fraudulent claim for the sum of $230,749.90 for work, labor, and' supplies claimed to have been furnished to the United States by the Atlantic Contracting Company for work at the Savannah harbor during the months of December, 1896, January, 1897, February, 1897, March, 1897, April, 1897, May, 1897, June, 1897, and the overt act charged is that this claim was presented to Carter in furtherance of and in accordance with said conspiracy. To bothl of these counts the defendants demur upon the ground that the fraudulent character of the claim is not sufficiently set forth. These counts are framed under a different statute from that we have been discussing. They do not charge that Carter, as engineer officer, had any authority to approve or allow the payment of such claims. This has been held essential to an indictment framed under this statute. U. S. v. Reichert (C. C.) 32 Fed. 142. It is not charged in either count, save inferentially, that the fraudulent claims referred to have any relation to the conspiracy hereinbefore discussed. The counts fail to disclose the means or details by which the conspiracies charged were to be made effective, and no averment is made which will sufficiently apprise the accused of any facts in view of which the claims in question are denounced as fraudulent. Said the supreme court in Cruikshank’s Case, 92 U. S. 558, 23 L. Ed. 588:
‘‘The object of the Indictment is: First, to furnish the accused with such description of the charge against him as will enable him to make his defense; second, to inform the court of the facts alleged, so that it may decide*357 whether they are sufficient in law to support a conviction if one should be had.”
In the care with which we have attempted to consider these counts we have consulted precedents of such indictments afforded both by English and American text writers of high repute on criminal pleading. Archb. Pl. & Ev. (10th Ed.) 677, 678; Bish. Cr. Proc. par. 184; Loveland, Forms Fed. Proc. p. 460. In all of these precedents far greater particularity is used than in the ninth and tenth counts of this indictment. In view of these meager and defective recitals and of the well-settled right of the accused to be fairly informed these counts are not regarded as sufficient. It is true that the charge of conspiracy is made in the language of the statute, and the claims presented by the accused are denounced as fraudulent, but the important expressions in the statute, such as “fraudulent,” are generic; and said the supreme court of the United States in Cruikshank’s Case:
“It Is an elementary principle of criminal pleading that, where the definition of the offense, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the specifics; it must descend to particulars.” 1 Archb. Cr. Prac. & Pl. p. 291.
Since these counts do not state the particulars of the fraudulent claim, they do not, in my judgment, meet the requirements of the law.
To the ninth and tenth counts, therefore, the demurrer of the accused must be sustained, and to the first eight counts of the indictment it must be overruled.
It may be added that the district attorney offers to supply any insufficiencies of these counts by a bill of particulars setting forth the details of the alleged fraud. Such an offer is addressed to the judicial discretion (Bish. Cr. Proc. p. 644), and we are convinced the safer practice is to set out such facts to show the fraudulent character of the claim in the indictment itself, rather than in a bill of particulars, which is not a part of the record. This offer is therefore declined.