141 F. 666 | D. Or. | 1905
It is charged that on February 1, 1902, defendants conspired and agreed together, knowingly, wickedly, and corruptly to defraud the United States out of the possession and use of, and the title to, divers large .tracts of the public lands within Oregon, which lands had been, prior to September 28, 1893, open to entry under the homestead laws, but which were on that day included within the limits of the Cascade Range Forest Reserve by executive order, and withdrawn from settlement and entry, under the laws pertaining to forest reserves. It is alleged that the said unlawful conspiracy to defraud the United States was one for obtaining, for the profit and benefit of defendants, and appropriating the possession and use of, and title to, and the. proceeds of the sale of, the lands, as set forth, by means and in pursuance of a certain false, fraudulent, and corrupt practice of them, the said defendants—
“Whereby, relying upon the fact that the said Binger Hermann, as, and who then was, Commissioner of the General Land Office of the said United States, had the power to recommend and secure the issuance of patents con- » veying title in such lands from the said United States to entrymen under the said homestead laws, in cases where the records of the said land office and General Land Office showed that homestead entries had been made upon the same prior to the day last aforesaid, and that the persons appearing to have made such entries had continued to reside upon and cultivate such
“ '¡subscribed and sworn to before me this 4th day of February, 1902, S. B. Ormsby, Forest Superintendent,’ upon and to a certain deposition of one L. Jacobs concerning the supposed settlement and residence upon the same lands by Emma Porter.”
Other overt acts are alleged, of a similar nature to that just described.
It is also alleged that, in pursuance of the said unlawful conspiracy and agreement, and to effect the object of the same, and by means thereof to defraud the United States out of the possession and use of and title to all of the tracts of public lands described in the indictment, the said John H. Mitchell, on March 3, 1902, at the city of Washington, unlawfully did prepare a certain written affidavit for the said Emma L. Watson to sign and swear to. This affidavit, made by Mrs. Emma L. Watson, substantially states that she owned by purchase certain described
The point urged is that a scienter is not alleged, in that it is not charged that these defendants knew that the lands entered were falsely and fraudulently entered. The indictment is for conspiracy to defraud the United States, as denounced in section 5440, Rev. St. [U. S. Comp. St. 1901, p. 3676]. The essence of the offense charged is the conspiracy, although the statute requires not only a conspiracy, but the doing of some act to effect its object; such act being one of the means by which the conspiracy is sought to be carried into effect. Now'the charge here is that defendants unlawfully conspired, knowingly, wickedly, and corruptly to defraud the United States out of title to certain lands, with an object and by certain means, that is,' by certain acts by which the conspiracy was to be carried into effect. To have conspired knowingly, unlawfully, wickedly, and corruptly to acquire the lands described is a complete offense of conspiracy if any act was done to carry into effect the object 'of such conspiracy. Without the doing of the act to carry out the object of the conspiracy, there would be no crime; yet we must not lose sight of the fact that, while the doing of the act is essential, it is nevertheless but a means by which the conspiracy is sought to be made effective.
As I understand the reasoning and decision of the Supreme Court in
In the indictment under examination, we find that it is distinctly charged that defendants knowingly, wickedly, and corruptly conspired to defraud the United States out of title to certain public lands. Overt acts or means are then set forth. The language of the charge excludes the idea of any unintentional wrong, and the word “knowingly” as used may fairly be regarded as qualifying the acts subsequently stated, including the doing of those by which the conspiracy was to be carried into effect. Analogies are to be found in the opinions of the Supreme Court of the United States. In Dunbar v. United States, 156 U. S. 186, 15 Sup. Ct. 325, 39 L. Ed. 390, indictments were presented charging ■defendant with the crime of smuggling, under section 2865, Rev. St. [U. S. Comp. St. 1901, p. 1905]. The statute provides as follows:
“If any person shall knowingly and willfully, with intent to defraud the revenues of the United States, smuggle or clandestinely introduce into the United States any goods, wares or merchandise, subject to duty by law, and which should have been invoiced, without paying or accounting for the duty * * * every such person * * * shall be deemed guilty,” etc.
The charge in one of the counts of one of the indictments was that • the defendant willfully, unlawfully, and knowingly, and with intent to ■defraud the revenues of the United States, did smuggle and clandestinely introduce into the United States certain goods, wares, and merchandise, describing them, and which should have been invoiced, without paying or accounting for the duty, or any part thereof.
Another section of the statute (section 3082 [U. S. Comp. St. 1901, p. 2014]) provides:
“If any person shall fraudulently or knowingly import into the United ■States, or assist in so doing, any merchandise contrary to law, or shall receive, or in any manner facilitate the transportation, or concealment or sale ■of such merchandise after importation, knowing the same to have been imported contrary to law, such merchandise shall be forfeited, and the offender •shall be fined,” etc.
The ninth count of the second indictment in the Dunbar Case charged that on the 5th day of February, 1893, the defendant did willfully, unlawfully, fraudulently, and knowingly, and with intent to defraud the revenues of the United States, facilitate the transportation, after importation, of a large quantity of prepared opium, which was subject to a duty by law, and which should have been invoiced, and which prepared opium, on said 5th day of February, 1893, had been knowingly, willfully, unlawfully, and fraudulently brought, imported, smuggled, and clandestinely introduced into the United States, and upon which no duty had been paid or accounted for according to law, and that none of said prepared opium had been invoiced; the defendant then and there well knowing that no duty had been paid, or accounted for according to law on said opium, and that none of said opium had been invoiced, and that the same, and the whole thereof, had been unlawfully, willfully, knowingly, and fraudulently brought, imported, smuggled, and clandestinely introduced into the United States. It was there alleged that all the counts except the ninth were bad, because a scienter was not alleged. No objection was made to the ninth count, because it was conceded that it averred a knowledge of the fact that the opium had been imported into the United States; but in the other counts such knowledge was not directly averred in language similar to that used in the ninth count.
The Supreme Court, by Justice Brewer, stated that the indictment had been carefully examined, and that none of the criticisms which were based upon a lack of allegation of knowledge were well taken:
“They charge that the defendant did ‘willfully, unlawfully, and knowingly, and with intent to defraud the revenues of the United States, smuggle and clandestinely introduce into the United States,’ the prepared opium. It is stated in 1 Bish. Crim. Proc. (3d Ed.) § 504, that the words ‘knowingly’ or ‘well knowing’ will supply the place of a positive averment that the defendant knew the fact subsequently stated; and to like effect are the authorities generally. The language of the indictment quoted excludes the idea of any unintentional and ignorant bringing into the country of prepared opium upon which the duty had not been paid, and is satisfied only by proof that such bringing in was done intentionally, knowingly, and with intent to defraud the revenues of the United States. Indeed, the word ‘smuggling’ as used carries with it the implication of knowledge. In Bouvier, vol. 2, p. 528, smuggling is defined: ‘The fraudulent taking into a country or out of it merchandise which is lawfully prohibited.’ We have, therefore, both the use of a term which implies intentional misconduct and a specific averment that what was done was done willfully, knowingly, and with intent to defraud, * * * An intent to defraud the revenues implies an intent to deprive such revenues of something that is lawfully due them, and there can be no such intent without knowledge of the fact that there is something due. So, when the charge is made that the defendant willfully, unlawfully, and knowingly, and with intent to defraud the revenues of the United States, smuggled and clandestinely introduced into the United States prepared opium, it carries with it a direct averment that he knew that the duties were not fully paid, and that he was seeking to bring such goods into the United States without their just contribution to the revenues. Eor these reasons, we think that this objection to the indictment also fails.”
“The plain meaning of the indictment is that the defendant deposited in the mail a book which he knew to be obscene, and that in truth it was obscene.”
After approving of the decision in Rosen’s Case, 161 U. S. 29, 16 Sup. Ct. 434, 40 L. Ed. 606, the court continued:
“In that case we held that the general charge that the defendant unlawfully, willfhlly, and knowingly deposited and caused to be deposited in the post office a certain obscene, lewd, and lascivious paper, as therein described, might not unreasonably be construed as meaning that the defendant was and must have been aware of the nature of its contents at the time he caused it to be put into the post office for transmission and delivery. Mr. Justice Harlan, in delivering the opinion of the court in that case, said: ‘Of course he did not understand the government as claiming that the mere depositing in the post office of an obscene, lewd, and lascivious paper was an offense under the statute, if the person so depositing it had neither knowledge nor notice at the time of its character or contents. He must have understood, from the words of the indictment, that the government imputed to him knowledge or notice of the contents of the paper so deposited. In their ordinary acceptation,' the words “unlawfully, willfully, and knowingly,” when applied to an act or thing done, import knowledge of the act or-thing so done, as well as an evil intent or bad purpose in doing such thing; and, when used in an indictment in connection with the charge of having deposited in the mails an obscene, lewd, and lascivious paper, contrary to the statute in such case made and provided, could not have been construed as applying to the mere depositing £n the mail of a paper, the contents of which at the time were wholly unknown to the person depositing it. The case is, therefore, not one of total omission from the indictment of an essential averment, but, at most, one of inaccurate or imperfect statement of a fact; and such statement, after verdict, may be taken in the broadest sense authorized by the words used, even if it be adverse to the accused.’ * * * ”
Like rulings were made in United States v. Fulkerson (D. C.) 74 Fed. 619; United States v. Nathan (D. C.) 61 Fed. 936; Blake v. United States, 71 Fed. 286, 18 C. C. A. 117.
My conclusion is that, considering all the language of this indictment, while it is not as direct as it might be in form, yet in its substantial averments it is sufficiently clear as against general demurrer, and that it well enough informs the defendants that they are charged with conspiracy to defraud, and with the doing of overt acts to effect the object of the conspiracy. They must therefore plead to the merits.