United States v. Orr

223 F. 220 | D.R.I. | 1915

BROWN, District Judge.

[1] The defendants demur to this indictment for conspiracy, based upon section 37- of the Criminal Code of the United States.

A principal part of the defendants’ argument on demurrer is to the effect that the indictment must be regarded as an attempt to charge a conspiracy to commit the offense defined by section 17. of the. Oleomargarine Law, which provides forfeiture and penalty in case of fraud by “any person engaged in carrying on the business of manufacturing oleomargarine.” It is urged that the indictment insufficiently charges that the defendants were to be so engaged, and also that it appears upon its face that they were to act only as employes, agents, or officers of a corporation, and therefore were not within the terms of section 17.

The indictment, however, upon a fair reading, charges a conspiracy “to defraud the United States” rather than a conspiracy to commit the offense described in section 17 of the Oleomargarine Law. While that section seems limited in its application to persons engaged in carrying on the business of a manufacturer, section 37 of the Criminal Code is of broader application. Curley v. United States, 130 Fed. 1, 64 C. C. A. 369; United States v. Curley (C. C.) 122 Fed. 738.

Tile indictment charges that the defendants conspired to defraud the United States of a large sum of money to become due for internal revenue taxes upon oleomargarine. The mode in which the taxes were to become due is set forth at considerable length, and also the mode in which the United States was to he defrauded; i. e., by the removal of the oleomargarine from the place of manufacture, for sale, etc., without coupon stamps representing and denoting the payment of a tax, and without such tax having been paid or secured by any person.

[2] It seems sufficiently certain that the conspiracy contemplated the production of a taxable commodity, acts upon which there would become due to the United States taxes thereon, the noncompliance with the provisions of law for affixing stamps, and the nonpayment of taxes by anybody, and the defrauding of the United States of the taxes to which it would become entitled upon the facts alleged. Whether the taxes were to become due from the corporation or from the defendants, or from both, it is clear that upon the facts alleged a tax would be due, and.a purpose to evade the payment by anybody of this tax is sufficient to. supply the intent tp defraud.

Construing the indictment as based upon the second clause of section 37 of the Criminal Code, and as charging a conspiracy to defraud, I am of the opinion that an offense under section 37 is sufficiently charged.

Demurrers overruled.