United States v. O'CONNELL, 203

Decision Date24 March 1942
Docket NumberNo. 203,209.,203
PartiesUNITED STATES v. O'CONNELL et al.
CourtU.S. Court of Appeals — Second Circuit

Edward V. Broderick, of New York City, for defendants-appellants Francis M. O'Connell and James J. O'Connell.

Robert J. FitzSimmons, of New York City (Warren H. Mayell, of New York City, of counsel), for defendant-appellant Daniel J. Houlihan.

Mathias F. Correa, U. S. Atty., of New York City (Myles J. Lane, Asst. U. S. Atty., of New York City, of counsel), for plaintiff-appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The defendants were indicted for conspiring to evade the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., under which defendant Francis M. O'Connell had registered for military service. He had stated in his questionnaire that he had three dependents — his widowed sister and her two children — and that he had been contributing $60 a week to her support. This statement was supported by the oath of the sister as well as himself. On the basis of this information Local Board No. 1 classified him in 1A — fit for immediate service. Thereafter his father, James J. O'Connell, filed an appeal on his behalf while Francis was absent in Florida, in which he challenged the correctness of the classification. Thereupon the Appeal Board reversed the Local Board and classified Francis in 3A because of his alleged dependents, after which his Local Board reclassified him and again placed him in 1A. He again appealed but the Appeal Board this time affirmed the 1A classification.

About May 14, 1941, because of an anonymous complaint against Francis, Arthur Henry, an investigator from the Selective Service Headquarters, was assigned to investigate the case. On May 15, 1941, Henry asked Francis to come to headquarters for an interview but the latter requested Henry to meet him outside the office. During the course of a conversation between them Francis told Henry that his sister depended upon him, that his salary was $50 a week and that he contributed $40 of it to his sister. Henry told Francis that he had seen copies of letters stating that his father, James J. O'Connell, was liable for the sister's support, but Francis replied "that is just talk." At this interview Francis mentioned the defendant Houlihan and asked Henry whether he knew him. Houlihan was chairman of one of the local draft boards.

On the evening of May 15 the father went to see Houlihan and asked him to help with his son's registration, and to talk to Henry about it. Houlihan telephoned Henry on May 16 and arranged to meet him at lunch the next day. They met at 201st Street and the Grand Concourse and Houlihan said he wished to have Henry meet the father. He said that Francis was getting kicked around by his Local Board and he wanted to see if Henry could not help. Houlihan then drove Henry in his car to 4300 Martha Avenue where James O'Connell was building an apartment house. There they found both James and Francis O'Connell and Houlihan introduced James to Henry, after which Houlihan drove Henry to the Bronx River Inn for lunch. At lunch he told Henry that he wanted to get Francis in 2A or 3A classification, said that he knew Henry wasn't going to do this for nothing, asked the latter how much it would cost and finally queried whether it would be $1,000, and Henry said "yes." Houlihan said that James, the registrant's father, had plenty of money and would be willing to pay to get a 2A or 3A classification, that he — Houlihan — didn't want a penny, but only wanted to get Francis in a 2A or 3A classification. Henry said he did not know that he could do anything but would see what could be done. After lunch Houlihan drove Henry to the latter's home. On May 19, Henry again met Houlihan by appointment and they again discussed the O'Connell case. Houlihan said he wished to go to Martha Avenue again and meet James O'Connell. He drove Henry to a point near there, got out of the car and walked over to where James O'Connell was and talked with him. Houlihan then returned to the car, drove Henry around in it for a few minutes, went back to Martha Avenue, got out of the car and talked with Francis, who had in the meantime arrived at Martha Avenue and told Henry that he had informed Francis that he was going to get him a 2A or 3A classification and was going to speak to his father about the $1,000. Houlihan said to Henry: "Everything is all set * * *. We will go back there and you can talk to Mr. Francis O'Connell. Straighten it out with him * * * and whatever way you handle it will be all right with me." At the suggestion of Houlihan, Henry then got into Francis' car. While the two were together in the car, Francis said he understood the case was to "cost * * * a thousand dollars" and tried in vain to persuade Henry to accept a small payment down of $200 or $300 and to receive the balance in a few weeks. Henry said: "No, forget all about it," to which Francis replied: "I will get the check from my father and cash it at the bank on 219th St. White Plains Road." Thereafter Francis stopped at DeVoe and McLean Avenues, left Henry there and went back to Martha Avenue, picked up his father and took him to the bank where Francis cashed a check for $1,042 that was signed "James O'Connell" made payable to the latter and endorsed by Francis in James' name. On the back of the check, in the handwriting of Francis, were the words: "To pay Pat Pettit for account 236th St." Pat Pettit was the contractor for the plumbing installation at the Martha Avenue job. According to Pettit's testimony James O'Connell told him that Francis had got into trouble in connection with the draft and that money was involved. James thereupon asked Pettit to say that he had been...

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5 cases
  • Singer v. United States
    • United States
    • U.S. Supreme Court
    • January 2, 1945
  • United States v. Keegan
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 15, 1944
    ...administration of the act "by force or violence." This same objection to a similar indictment was specifically raised in United States v. O'Connell, 2 Cir., 126 F.2d 807, certiorari denied Houlihan v. United States, 316 U.S. 700, 62 S.Ct. 1297, 86 L.Ed. 1769. There we held that Section 11 e......
  • United States v. De Viteri
    • United States
    • U.S. District Court — Eastern District of New York
    • June 28, 1972
    ...does not require an overt act for the offense of conspiracy." Id. at 340, 65 S.Ct. at 283. To the same effect, see also United States v. O'Connell, 126 F.2d 807 (2d Cir.), cert. denied, Houlihan v. United States, 316 U.S. 700, 62 S.Ct. 1297, 86 L.Ed. 1769 In October of 1970, a new drug law,......
  • United States v. Singer
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • April 21, 1943
    ...as the Circuit Court of Appeals for the Second Circuit had before it an exact counterpart of the instant indictment in United States v. O'Connell et al., 126 F.2d 807, and held that in a prosecution for conspiracy to evade the Selective Training and Service Act of 1940, the indictment was n......
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