329 U.S. 211 (1946), 51, Fiswick v. United States

Docket Nº:No. 51
Citation:329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196
Party Name:Fiswick v. United States
Case Date:December 09, 1946
Court:United States Supreme Court
 
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329 U.S. 211 (1946)

67 S.Ct. 224, 91 L.Ed. 196

Fiswick

v.

United States

No. 51

United States Supreme Court

Dec. 9, 1946

Argued November 19, 20, 1946

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

1. Petitioners and others were indicted for conspiracy to defraud the United States in violation of § 37 of the Criminal Code. The indictment charged that petitioners conspired with each other, and with others, to defraud the United States by concealing and misrepresenting their membership in the Nazi party. The last overt act alleged to have been committed by any of the petitioners was the filing by one of them of a registration statement under the Alien Registration Act of 1940, in which he falsely failed to disclose his connection with and activities in the Nazi party.

Held that the conspiracy charged and proved did not extend beyond the date of the last overt act, and that admittance in evidence against all of the

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petitioners of admissions made after that date by one of the petitioners was reversible error. Pp. 215-220.

(a) Though the result of a conspiracy may be continuing, the conspiracy is not a continuing one unless there is continuous cooperation of the conspirators to produce the unlawful result. P. 216.

(b) An overt act being necessary to complete the offense of conspiracy under § 37 of the Criminal Code, the overt acts averred and proved may mark the duration, as well as the scope, of the conspiracy. P. 216.

(c) The conspiracy charged and proved did not extend beyond the date of the last overt act (the filing of the false registration statement), and the subsequent admissions of each defendant were improperly employed against the others. P. 217.

(d) While the act of one conspirator is admissible against the others, if it is in furtherance of the criminal undertaking, all such responsibility ends when the conspiracy ends. P. 217.

(e) Confession or admission by one coconspirator after he was apprehended was not in furtherance of the conspiracy to deceive the Government, but had the effect of terminating the conspiracy, so far as he was concerned, and made his admissions inadmissible against his erstwhile fellow conspirators. P. 217.

(f) It cannot be said with fair assurance in this case that the jury was not substantially swayed by the use of these admissions against all defendants, and therefore it cannot be considered a "harmless error" within the contemplation of § 269 of the Judicial Code. Kotteakos v. United States, 328 U.S. 750. Pp. 217-220.

2. The fact that his sentence of imprisonment has been served does not render moot a review of the conviction of an alien under § 37 of the Criminal Code for conspiring to file a false registration statement under the Alien Registration Act and to conceal from the Government his membership in the Nazi party, since the conviction may weaken his defense to a deportation proceeding under 8 U.S.C. § 155, impair his chances of naturalization under 8 U.S.C. § 707(a)(3), and subject him to the loss of certain civil rights. Pp. 220-223.

153 F.2d 176 reversed.

Petitioners were convicted under § 37 of the Criminal Code of conspiring to defraud the United States in the exercise of its governmental functions by filing false registration statements under the Alien Registration Act of 1940, 54 Stat. 670, 8 U.S.C. § 451 et seq., and concealing

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their membership in the Nazi party. The Circuit Court of Appeals affirmed. 153 F.2d 176. This Court granted certiorari. 327 U.S. 776. Reversed, p. 223.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

The Alien Registration Act of 1940, 54 Stat. 670, 8 U.S.C. § 451 et seq., required aliens, with certain exceptions, to register pursuant to regulations of the Commissioner of Immigration and Naturalization.1 Among the disclosures required was whether, during the preceding five years, the alien had been

affiliated with or active in (a member of, official of, a worker for) organizations, devoted in whole or in part to influencing or furthering the political activities, public relations, or public policy of a foreign government.2

Petitioners are German nationals who registered under the Act, the last of the three, Mayer, registering on December 23, 1940. Each stated when he registered that he was not affiliated with or active in such an organization. Each failed to disclose in answer to another question pertaining to [67 S.Ct. 226] "memberships or activities in clubs, organizations, or societies" that he was in any way connected with the Nazi party. They were indicted in 1944 with 28 others for conspiring to defraud the United States in the exercise of its governmental functions (see Curley v. United States, 130 F. 1, 4) in violation of § 37 of the Criminal Code, 18 U.S.C. § 88.

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The indictment charges that petitioners continuously, between September 1, 1939, and the date the indictment was returned, September 13, 1944, conspired with each other and with Draeger, the German consul in New York City and leader of the Nazi party in this country, with Draeger's secretary, Vogel, and with other representatives of the Third Reich, to defraud the United States by concealing and misrepresenting their membership in the Nazi party. It charges that, since 1933, the Nazi party was devoted to furthering the political activities and policy of the German Reich in this country, that each petitioner, during the five years prior to his registration, was a member of that party, that Draeger and Vogel directed petitioners, in registering under the Act, to conceal and falsify their connection with the Nazi party, that petitioners followed such directions, that, after their registration, they continued from day to day to misrepresent to the government their connection with and activities in the Nazi party. The indictment alleges that, as a means of accomplishing the conspiracy, the petitioners appeared for registration and, in registering falsely, failed to disclose their connection with and activities in the Nazi party. The indictment sets forth 40 overt acts. Many related to instructions given by Draeger and Vogel to various defendants from September to December, 1940, in...

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