101 F. Supp. 123 | D.R.I. | 1951
This matter was heard on the defendants' motions to dismiss the indictment.
The indictment charges violations of 18 U.S.C. § 371, 31 U.S.C.A. §§ 440, 441, 442, 443; 18 U.S.C. §§ 494, 1001, and alleges in substance that on or about July 1, 1949 and continuously thereafter up to and including February 1, 1950 at Providence, in said district, the defendants unlawfully, wilfully and knowingly conspired to com
The motions to dismiss allege in substance that the indictment does not state facts sufficient to constitute an offense against the United States or to sustain a charge that the defendants conspired to defraud the United States or any agency thereof; that it is vague, ambiguous and uncertain and fails to allege sufficient facts; that it fails to -allege any offense of a character which may be lawfully prosecuted by criminal proceedings or an offense against a criminal law of the United States; that it is duplicitous in that it purports to charge more than one offense in one count; that it- fails to set forth clearly, fully and with sufficient certainty the means or purpose of the purported conspiracy; that it is insufficient in law in that it purports to charge a conspiracy in violation of Title 31 U.S.C.A. §§ 440-443 and the rules and regulations July issued and promulgated pursuant thereto for which there is no criminal punishment provided for by law; that it is insufficient in law in that it purports to charge a conspiracy to commit an offense against the United States and to defraud
The obstruction of a governmental function by such means as alleged in the indictment is a fraud within the meaning of the statute and “It is not necessary to allege or show that there was a loss in the transaction.” Hills v. United States, 9 Cir., 97 F.2d 710, 713.
The defendants 'have not established that the Gold Reserve Act of 1934 is unconstitutional. The defendants contend it is an unlawful attempt to delegate legislative power to the Secretary of the Treasury. Sufficient standards appear to be set up under said Act. See Uebersee Finanz-Korporation, Etc., v. Rosen, 2 Cir., 83 F.2d 225, certiorari denied 298 U.S. 679, 56 S.Ct. 946, 80 L.Ed. 1400. See also Hills v. United States, supra.
The defendants’ contention that the indictment does not show that the grand jury was sworn relates to form and is without merit. See Rule 7(c), Federal Rules of Criminal Procedure; United States v. Agnew, D.C., 6 F.R.D. 566.
Felonious intent is no part of the statutory description of the conspiracy charged and it is unnecessary to allege that the conspiracy was feloniously entered into. Bannon and Mulkey v. United States, 156 U.S. 464, 15 S.Ct. 467, 39 L.Ed. 494. See also Welch v. Hudspeth, 10 Cir., 132 F.2d 434.
The number of rules and regulations which the defendants are alleged to have violated need not be set forth. See Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118; Holmes v. United States, 8 Cir., 134 F.2d 125, certio
In Enrique Rivera v. United States, 1 Cir., 57 F.2d 816, 819, 820, the court said:
“An indictment is sufficient that charges a statutory crime substantially in the words of the statute. Jelke v. United States [7 Cir.] 255 F. 264. A crime which is the 0*6] ect of the conspiracy need not be described with the same particularity in the indictment for conspiracy as in an indictment for such crime itself. Ford v. United States [9 Cir.] 10 F.2d 339; Taylor v. United States [7 Cir.] 2 F.2d 444, 446; Rulovitch v. United States [3 Cir.] 286 F. 315; Anderson v. United States [8 Cir.] 260 F. 557.
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“The means by which the object of the conspiracy is to be attained need not be set out in detail. Houston v. United States [9 Cir.] 217 F. 852, 857. It is sufficient if an indictment contains a general description of the means by which the object is to be attained. Perrin v. United States [9 Cir.] 169 F. 17, 21; United States v. Benson [9 Cir.] 70 F. 591, 596.
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“In general, an indictment must contain sufficient allegations to inform the accused of the nature of the offense and sufficiently apprise him of the charges against him so that he may properly prepare his defense, and, if convicted, the judgment rendered will be a bar to another prosecution for the same offense. Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606; Lund v. United States [8 Cir.] 19 F.2d 46.”
I find no merit in the contention that paragraphs 1 and 4 of the indictment are repugnant. A reading of the indictment together with the Gold Regulations (31 CFR Part 54) makes this clear.
There is no merit in the defendants’ contention that the term “other writing” in 18 U.S.C. § 494, does not include a document such as a government gold license. See United States v. Serpico, 2 Cir., 148 F.2d 95.
In Bergen v. United States, 8 Cir., 145 F.2d 181, 187, 188, the court said: “An essential element of the crime denounced by the statute is an intent to commit a crime against the United States or to defraud the United States. It is not necessary to a conviction of a party to the conspiracy that he perform any overt act, or that the conspiracy succeed. Conviction may rest on proof of the doing of any overt act by any of his co-conspirators for the purpose of effecting the object of the conspiracy, and it is not necessary to conviction that the overt act in itself be one prohibited by law. * * * ”
The indictment is not duplicitous. A conspiracy is charged and it is not improper to allege numerous overt acts. The Supreme Court said in Frohwerk v. United States, 249 U.S. 204, 209, 210, 39 S.Ct. 249, 252, 63 L.Ed. 561: “* * * Countenance we believe has been given by some Courts to the notion that a single count in an indictment for conspiring to commit two offences is bad for duplicity. This Court has given it none. Buckeye Powder Co. v. E. I. DuPont Powder Co., 248 U.S. 55, 60, 61, 39 S.Ct. 38, 63 L.Ed. 123; Joplin Mercantile Co. v. United States, 236 U.S. 531, 548, 35 S.Ct. 291, 59 L.Ed. 705. The conspiracy is the crime, and that is one, however diverse its objects. * * *”
The indictment is not vague, indefinite, ambiguous or uncertain.
In Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545, the court said: “ * * * It is. well settled that in an indictment for conspiring to commit an offense — in which the conspiracy is the gist of the crime — it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy, * * * or to state such object with the detail which would be required in an indictment for committing the substantive offense, * * *. In charging such a conspiracy ‘certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is’ necessary. * * *
The Supreme Court said in United States v. Hutto, No. 1, 256 U.S. 524, 528, 529, 41 S.Ct. 541, 543, 65 L.Ed. 1073: “Nor can we sustain the other ground upon which it is contended the demurrers were well taken. Section 37, Criminal Code, is violated by a conspiracy ‘to commit any offense against the United States,’ accompanied or followed by an overt act done to effect the object of the conspiracy. It does not in terms require that the contemplated offense shall of itself be a criminal offense; nor does the nature of the subject-matter require this construction. A combination of two or more persons by concerted action to accomplish a purpose either criminal or otherwise unlawful comes within the accepted definition of conspiracy. Pettibone v. United States, 148 U.S. 197, 203, 13 S.Ct. 542, 37 L.Ed. 419. The distinction between a conspiracy and the contemplated offense that forms its ■object has often been pointed out. United States v. Rabinowich, 238 U.S. 78, 85, 86, 35 S.Ct. 682, 59 L.Ed. 1211, and cases cited. And we deem it. clear that a conspiracy to commit any offense which by act of Congress is prohibited in the interest of the public policy of the United States, although not of itself made punishable by ■criminal prosecution, but only by suit for penalty, is a conspiracy to commit an ‘offense against the United States’ within the meaning of section 37, Criminal Code, and, provided there be the necessary overt act or acts, is punishable under the terms of that section.” See Fuller v. United States, 9 Cir., 110 F.2d 815, certiorari denied 311 U.S. 669, 61 S.Ct. 29, 85 L.Ed. 430.
In Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 706, 95 L.Ed. 886, the Supreme Court said: “ * * * it can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such ■crimes within the scope of moral turpitude. It is therefore clear, under an unbroken course of judicial decisions, that the crime of conspiring to defraud the United States is a ‘crime involving moral turpitude.’ ”
All of the defendants’ contentions are without merit and the indictment, in my opinion, is sufficient.
The defendants’ motions to dismiss, therefore, are denied.
. Designated to hold District Court in District of Rhode Island.