Monroe v. United States

• Citation: 234 F.2d 49,98 US App. DC 228
• Decision Date: 30 April 1956
• Docket Number: 12689,12690.,No. 12683-12687,12683-12687
• Parties: John B. MONROE, Appellant, v. UNITED STATES of America, Appellee. George C. PRATHER, Appellant, v. UNITED STATES of America, Appellee. Roger W. SIMKINS, Appellant, v. UNITED STATES of America, Appellee. Curtis M. TAYLOR, Appellant, v. UNITED STATES of America, Appellee. Albert H. SMITH, Appellant, v. UNITED STATES of America, Appellee. Charles ANDERSON, Appellant, v. UNITED STATES of America, Appellee. Burnie KING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

98 US App. DC 228, 234 F.2d 49 (1956)

John B. MONROE, Appellant, v. UNITED STATES of America, Appellee.

George C. PRATHER, Appellant, v. UNITED STATES of America, Appellee.

Roger W. SIMKINS, Appellant, v. UNITED STATES of America, Appellee.

Curtis M. TAYLOR, Appellant, v. UNITED STATES of America, Appellee.

Albert H. SMITH, Appellant, v. UNITED STATES of America, Appellee.

Charles ANDERSON, Appellant, v. UNITED STATES of America, Appellee.

Burnie KING, Appellant, v. UNITED STATES of America, Appellee.

Nos. 12683-12687, 12689, 12690.

United States Court of Appeals District of Columbia Circuit.

Argued December 20, 1955.

Decided April 30, 1956.

Petitions for Rehearing Denied June 12, 1956.

COPYRIGHT MATERIAL OMITTED

Mr. Myron G. Ehrlich, Washington, D. C., for appellants Monroe and Prather.

Mr. John H. Burnett, Washington, D. C., with whom Mr. George E. C. Hayes, Washington, D. C., was on the brief, for appellant Simkins.

Mr. Joseph Sitnick, Washington, D. C., for appellant Taylor.

Mr. James F. Reilly, Washington, D. C., for appellant Smith.

Mr. Curtis P. Mitchell, Washington, D. C., with whom Mr. Delong Harris, Washington, D. C., was on the brief, for appellants Anderson and King.

Mr. Harold H. Greene, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., at the time record was filed, Lewis Carroll, Edward P. Troxell, John D. Lane and Carl W. Belcher, Asst. U. S. Attys., were on the brief, for appellee.

Mr. John F. Doyle, Asst. U. S. Atty., at the time record was filed, entered an appearance for appellee in Nos. 12683, 12684, 12685 and 12686.

Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.

FAHY, Circuit Judge.

These are appeals from convictions under 62 Stat. 701 (1948), 18 U.S.C. § 371 (1952), for conspiring to violate § 22-704, D.C.Code 1951 by bribery, and from convictions of bribery itself. The conspiracy and bribery were directed toward influencing the official conduct of Lieutenant Todd O. Thoman, Jr., of the Metropolitan Police Department, to perform his duties with partiality and favor, and otherwise than as required by law in the enforcement of the gambling laws of the District of Columbia. Lieutenant Thoman was entirely innocent of wrongdoing. In fact he uncovered the allegedly criminal conduct by permitting himself seemingly to participate therein, while at the same time reporting the unfolding events to his superior officers and assembling evidence in preparation for arrests.

The indictment contains nineteen counts. Count one covers the conspiracy. The eighteen other counts cover specific acts of bribery. All appellants, together with John Winston, who was acquitted, were charged in the conspiracy count and were also charged with bribery in one or more other counts.

Two appellants, Monroe and Prather, were members of the Metropolitan Police Department. They are the only ones who were convicted of conspiracy. Monroe was also convicted of three charges of bribery.¹ Prather was acquitted of bribery, so that his appeal brings in question only his conviction with Monroe of conspiracy. Appellant Anderson was convicted of three charges of bribery and acquitted of three; King was convicted of one charge of bribery and acquitted of seven; Taylor was convicted of one and acquitted of one; Simkins was convicted of four and acquitted of one; and Smith was convicted of one.

Monroe was sentenced under the conspiracy count to imprisonment for twenty months to five years and to pay a fine of $1,000. He was also sentenced for sixteen months to four years for each bribery conviction, these sentences to run concurrently with one another and with his conspiracy sentence. Since the latter is for a longer time than his concurrent sentences for bribery, and since the conspiracy and bribery charges are intimately related, the judgment should be affirmed if no reversible error impairs the conspiracy conviction.² Since Prather was convicted only of conspiracy we are also required to review only that judgment as to him.

Monroe and Prather contend that there was a fatal variance between count one, the conspiracy count, and the proof, in that the conspiracy count charged but one conspiracy whereas the proof showed several. The same contention is made by all other appellants, but of course it is not available to them because they were acquitted of conspiracy. And insofar as Monroe and Prather are concerned we find no reversible error due to the alleged variance, assuming arguendo its existence. In Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314, the Supreme Court held that the legal effect of such a variance depends upon whether it has substantially injured the defendant:

"The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to `affect the substantial rights\' of the accused."

The Court said that the reasons for the general rule requiring correspondence between allegations and proof are that the accused be definitely informed of the charges so as to enable him to present his defense without being taken by surprise by the evidence, and that he be protected against another prosecution for the same offense.

Applying these tests to the conspiracy convictions of Monroe and Prather it seems altogether clear their substantial rights were not affected. These two officers were the main participants in the undertaking to secure the bribery of Lt. Thoman. There was testimony that Monroe first approached Thoman about obtaining protection money from gamblers, and that Monroe brought Prather into the scheme with a view of both himself and Prather joining Thoman in carrying out a widespread plan of obtaining such money. After Monroe's initiation of the project, Prather, in accordance with Monroe's plan and at his instigation, personally spoke to Thoman about it. At an arranged meeting with Prather protection money was passed to Thoman. Thoman reported this to his superiors, and with them to the United States Attorney. There was abundant additional evidence of the conspiratorial activities of Monroe and Prather, including the passage to Thoman of names, addresses, and telephone and tag numbers of gamblers, and with contacts, in furtherance of the conspiracy, between Thoman and appellants Anderson, Simkins, Taylor, and King. The conspiracy of Monroe and Prather embraced these others; and if any of the latter considered individually could not be said to have participated in as broad an operation as did Monroe and Prather, this did not significantly affect the fairness of the trial of these two for conspiracy. They were a part in some way of all that occurred, though others might not have been. Therefore it cannot be said that proof of the whole operated unfairly to their prejudice, or came as a surprise to them. Furthermore, the possibility of prejudice in later defending on the ground of their present convictions, should they again be prosecuted for any of the count one transactions used to obtain these convictions, is too fanciful to be used as a basis for setting aside such convictions. The Supreme Court met a similar problem in Berger by stating, "certainly the fact that the proof disclosed two conspiracies instead of one, each within the words of the indictment, cannot prejudice his defense of former acquittal of the one or former conviction of the other, if he should again be prosecuted." 295 U.S. at page 83, 55 S.Ct. at page 631. The reason this is so here, as well as in Berger, is that, assuming the indictment itself does not disclose all the conduct to which the evidence might be directed in proving the charge made, nevertheless, in event of an attempted second prosecution, resort could be had to the record of the evidence, or even to parole evidence if necessary. See Dunbar v. United States, 156 U.S. 185, 191, 15 S.Ct. 325, 39 L.Ed. 390; Bartell v. United States, 227 U.S. 427, 433, 33 S.Ct. 383, 57 L.Ed. 583; Kotteakos v. United States, 328 U.S. 750, 780, 66 S. Ct. 1239, 90 L.Ed. 1557 (dissenting opinion); United States v. Busch, 2 Cir., 64 F.2d 27, certiorari denied 290 U.S. 627, 54 S.Ct. 65, 78 L.Ed. 546; 48 Harv. L.Rev. 515, 516.

Appellants' argument respecting the alleged variance relies heavily upon the opinion of Mr. Justice Rutledge for the Supreme Court in Kotteakos v. United States, supra, where substantial prejudice was found to have resulted from a conviction of a single conspiracy on evidence conceded by the Government to have proved some eight or more different conspiracies. The indictment named thirty-two defendants of whom nineteen were tried. The cases of thirteen went to the jury and seven were found guilty. The key figure in that case, however, the one common to the total scheme,³ had pleaded guilty. He was not in the case as it was decided by the Supreme Court. The Court held that the variance was prejudicial. But the Berger case was not disapproved. It was distinguished on factual differences between the two cases. The Kotteakos opinion 328 U.S. 750, 66 S.Ct. 1244, is a treatise upon the subject of when, and when not, error should lead to reversal within the terms of section 269 of the Judicial Code, 40 Stat. 1181 (1919), 28 U.S.C. § 391 (1940), which requires an appellate court to give judgment "`without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.'" This principle is now embodied in Rules 51 and 52(a), Fed.R. Crim.P. 18 U.S.C. But the finding by the Supreme Court of prejudicial error in Kotteakos cannot be transplanted to the case at bar. Not only in Kotteakos was the "hub" man out of the case when it reached the appellate courts, while here the two "hub" men are the only ones now involved in the question, but, as we have outlined, the scheme of Monroe and Prather extended to all that was proved respecting the conspiracy. They were not surprised, nor were their substantial rights otherwise prejudiced by the...