Remus v. United States

• Decision Date: 30 June 1923
• Docket Number: 3848-3861.
• Citation: 291 F. 501
• Parties: REMUS v. UNITED STATES, and thirteen other cases.
• Court: U.S. Court of Appeals — Sixth Circuit

291 F. 501

REMUS v. UNITED STATES, and thirteen other cases.

Nos. 3848-3861.

United States Court of Appeals, Sixth Circuit.

June 30, 1923

[Copyrighted Material Omitted]

Elijah N. Zoline, of New York City, Arthur B. Bensinger, of Louisville, Ky., Edward P. Moulinier, of Cincinnati, Ohio and Chester H. Krum, of St. Louis, Mo. (Leonard Garver, Jr. and David Lorbach, both of Cincinnati, Ohio, on the brief), for plaintiffs in error.

Thos. H. Morrow and Richard T. Dickerson, Sp. Asst. Attys. Gen. (Benson W. Hough, U.S. Atty., of Cincinnati, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

These separate writs of error are directed to the same judgment, are based upon the same record, involve substantially the same questions, with but two or three exceptions and were heard and submitted together. The plaintiffs in error, hereinafter called defendants, were jointly indicted upon seven counts; the first charging a conspiracy unlawfully to transport, possess, and sell large quantities of intoxicating liquors, and to maintain a place where intoxicating liquor was to be kept for sale as a beverage, all of said offenses being contrary to and in violation of the provisions of title 2 of the National Prohibition Act (41 Stat. 307).

Demurrers were overruled as to this count, and sustained as to the remaining six counts. Further proceedings were had upon the first count. Pleas of not guilty were entered. Upon the trial of the cause the jury returned a verdict of guilty against each of the defendants named in the first count of the indictment. A motion for new trial was overruled and sentence imposed.

It is insisted that the court erred to the prejudice of the defendants in overruling the demurrer to the first count of this indictment, for the reason that it does not charge the actual formation of the conspiracy upon any definite date, or the commission of the overt acts alleged in the indictment subsequent to the formation of the conspiracy. This count of the indictment charges, among other things, that the defendants--

'continuously throughout the period of time from April 20, 1919, to the day of the finding and presentation of this indictment, * * * unlawfully and feloniously have conspired, combined, confederated and agreed together and with divers other persons to said grand jurors unknown, to commit during said period of time a large number of offenses against the United States,' etc.

This averment is followed by the number and description of the offenses contemplated by the conspiracy, after which it is alleged that the overt acts charged in the indictment were committed by one or more of the defendants 'to effect the object of said unlawful and felonious conspiracy, combination, confederation and agreement.'

The allegations of this indictment first above quoted clearly charges an existing conspiracy entered into between the defendants on April 20, 1919, and continuing until the time of the finding and presentation of the indictment, not for the commission of one offense only, but for the commission of a continuity of offenses in violation of title 2 of the National Prohibition Act by the unlawful transportation, possession, and sale of intoxicating liquor. Rudner et al. v. U.S. (C.C.A.) 281 F. 516. If the purpose of the conspiracy contemplated the commission of one offense, the continuance of the result of the commission of that offense would not necessarily continue the conspiracy; but if the purpose of the conspiracy contemplates, as charged in this indictment, continuous co-operation of the conspirators in the perpetration of a series of offenses against the United States within the scope and purpose of the conspiracy, it is in effect 'a partnership in criminal purposes,' and continues until the time of its abandonment, or the final accomplishment of its purpose. U.S. v. Kissel et al., 218 U.S. 601, 31 Sup.Ct. 124, 54 L.Ed. 1168.

It was not necessary, however, for the government to prove that this conspiracy was formed on the exact date averred in the indictment. Section 1025, R.S.U.S. (Comp. St. Sec. 1691); Ledbetter v. U.S., 170 U.S. 606, 18 Sup.Ct. 774, 42 L.Ed. 1162; U.S. v. Aviles et al. (D.C.) 222 F. 474.

Under the provisions of section 5440, R.S., the crime of conspiracy is not complete without the commission of an overt act in furtherance of the unlawful purpose contemplated by the conspiracy. The further averments of the indictment last above quoted specifically charges that the overt acts alleged were committed to effect the object of said unlawful and felonious conspiracy. Certainly this language is subject to no construction other than that the overt acts charged were committed after the conspiracy was formed, while it was still in existence, and in furtherance of its unlawful purpose.

It further appears that all of the overt acts averred in the indictment were of date long subsequent to the formation of the conspiracy as charged in the indictment. Under the allegations of this indictment it was incumbent upon the government to prove beyond a reasonable doubt that these defendants, or two or more of them, entered into a conspiracy for the unlawful purpose charged on or after the 20th day of April, 1919, and prior to the commission, in furtherance of the conspiracy, of the overt acts alleged in the indictment and that one or more of such overt acts were committed by one or more of the defendants after the conspiracy had been formed, and while it was still in existence, and in furtherance of the purposes of that conspiracy. Hyde et al. v. U.S., 225 U.S. 347, 32 Sup.Ct. 793, 56 L.Ed. 1114, Ann. Cas. 1914A, 614.

It is also claimed that this indictment is void for uncertainty, in that it fails to advise the defendants of the nature of the accusation against them. Upon this proposition it is contended by the defendants that an indictment alleging a conspiracy beginning April 20, 1919, and continuing without interruption until April 15, 1922, shows 'a continuity of 'breathing together' unheard of in the annals of old. Section 5440, R.S.U.S.' It may be that this indictment does charge the most extraordinary conspiracy, both as to the time of its continuance and the number of offenses for the commission of which it was formed, that has ever come to the attention of court or counsel; nevertheless an indictment is not defective for uncertainty merely because it alleges an extraordinary and unusual state of facts.

Nor is there any uncertainty in the allegation of the indictment as to the unlawful purposes for which this conspiracy was formed. While perhaps it is not required in an indictment for conspiracy to describe the offense for the commission of which the conspiracy was formed with the same particularity as is required in an indictment charging the specific offense only, for the reason that it is not necessary to conviction on an indictment for an unlawful conspiracy to prove that the offense alleged as the object and purpose of the conspiracy was actually committed, yet this count of the indictment does allege, not mere legal conclusions, but facts from which it appears that the object and purpose of the unlawful conspiracy were the commission of certain definite offenses against the United States, punishable under the statutes of the United States and these offenses are not charged in the vague, uncertain way disapproved by the Supreme Court in U.S. v. Cruikshank et al., 92 U.S. 542, 23 L.Ed. 588, but are separated and classified with reference to their nature and character with such particularity as to prevent any confusion or misunderstanding as to the exact offenses contemplated by this conspiracy, or as to the particular law declaring the offenses and providing the punishment therefor.

This indictment does advise the defendant and each of them that they are charged with unlawful conspiracy continuing for a long period of time; that the purpose of this conspiracy was the commission of a large number of offenses in violation of title 2 of the National Prohibition Act: First, in the unlawful transportation of intoxicating liquors from and to definite places named; second, in the maintaining of a certain specified place where intoxicating liquors were kept for unlawful sale; third, the unlawful possession of intoxicating liquors at a certain designated place; and, fourth, the unlawful selling of intoxicating liquor as a beverage at a certain definite place.

The fact that this indictment charges that the unlawful purpose of the conspiracy included 300 offenses in the unlawful transportation of intoxicating liquor from and to the places mentioned, and 3,000 separate offenses in the unlawful sale of intoxicating liquor for beverage purposes at the place specified, does not make the indictment indefinite or uncertain as to the unlawful purposes of this conspiracy; but, even if it did, there were two other definite and certain offenses charged as the purpose of this conspiracy-- one the 'maintaining at Death Valley farm * * * a place where intoxicating liquors * * * were to be kept by said defendants and sold by them in violation of title 2 of the National Prohibition Act. ' Another was the unlawful possession 'at said Death Valley farm of intoxicating liquor otherwise than was authorized by the National Prohibition Act. ' Certainly these two offenses were described with such certainty and detail that the indictment would not be vulnerable to a demurrer, even if the averments as to the other offenses were too indefinite and uncertain to permit the introduction of proof in support thereof.

For the reasons stated, this count of the indictment is sufficiently definite and certain, without resort to the overt acts charged, and...