Heskett v. United States

Decision Date24 June 1932
Docket NumberNo. 6704.,6704.
Citation58 F.2d 897
PartiesHESKETT et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Will R. King, of Los Angeles, Cal., for appellants.

Samuel W. McNabb, U. S. Atty., and Harry Graham Balter, Asst. U. S. Atty., both of Los Angeles, Cal.

Before WILBUR and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

The appellants were convicted under both counts of an indictment. One count charged that they conspired to pretend to be officers of the United States, and the other alleged that the impersonations were actually carried out, as is hereinafter more fully set forth.

According to the testimony, both defendants paid several visits to the home of Toyoki Sonoda, at Downey, Los Angeles County, Cal. The evidence tended to show that they said they were "immigration officers," showed badges, asked about passports, and demanded money of Sonoda. The defendants admitted visiting the Sonoda ranch, but denied any impersonation or any demand of money from Sonoda. Heskett declared that they went to the ranch to investigate the murder of a Japanese for the capture of whose slayer a reward of $5,000 had been offered. Heskett added that "I took Mr. Pirotte along because he was an officer of the law." Testimony of a deputy sheriff of Los Angeles, recalled by the defense, developed that, at the time of the visits to the Sonoda ranch, Pirotte was "a special deputy sheriff," who, the witness added, is simply "a person who is given a badge — in my opinion it is nothing more than a permit to carry a gun."

There are eighteen assignments of error, only seven of which, however, are included among the "Specifications of Error Relied On" in the appellant's brief. While we will discuss only the specifications, we have examined the other assignments also, and find that they disclose no reversible error.

The first assignment and specification attack the sufficiency of the indictment. The first count was drawn under section 37 of the Criminal Code (18 USCA § 88), which reads as follows: "Conspiring to commit offense against United States. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both."

The first count sets forth in substance — omitting the formal parts — that the defendants, "prior to the dates of the commission of the overt acts hereinafter set forth, and continuously thereafter to and including the date of finding and presentation of this indictment, * * * did * * * knowingly, * * * conspire, * * * with each other, and with divers other persons whose names are to the grand jurors unknown to commit, * * * an offense against the United States of America and the laws thereof, the offense being to knowingly, * * * and with intent to defraud one Toyoki Sonoda, falsely assume and pretend to be officers and employees of the United States, acting under the authority of the United States, towit: Immigrant Inspectors of the United States, and to * * * take upon themselves to act as such officers, when in truth and in fact, as they, the said defendants, then and there well knew, they, the said defendants, were not and would not be officers and employees of the government of the United States," etc.

In the same count, it is further alleged that, in pursuance of the conspiracy, the defendants committed two overt acts; namely, made two visits to the residence of Toyoki Sonoda, in Downey.

The appellants object that the allegations of these overt acts are insufficient because they state merely the commission of lawful acts, that is, visiting the residence of Sonoda on two named dates. But these visits were alleged to have been "in pursuance of * * * and to effect the object, design and purpose of" the conspiracy laid in the charging part of the indictment. The language of the court in Gruher v. United States (C. C. A. 2) 255 F. 474, 476, 477, is strikingly applicable:

"The indictment not only alleges one but three overt acts `in pursuance and to effect the object of the conspiracy.' It declares:

"1. That on August 8th defendant called upon Bernfeld, one of his coconspirators, at a certain specified place in the city of New York. * * *

"It is true that in itself there was nothing unlawful in the act of the defendant in calling on Bernfeld. But there is no rule of law which requires an overt act to be an unlawful act. It may be in itself a perfectly lawful act which becomes unlawful only when it is committed `in pursuance of and to effect the object' of the conspiracy. It was not necessary to allege in what manner the overt act would tend to effect the object of the conspiracy. Houston v. United States, 217 F. 853, 133 C. C. A. 562; United States v. Wupperman (D. C.) 215 F. 135; United States v. Shevlin (D. C.) 212 F. 343."

See, also, Rumely et al. v. United States (C. C. A. 2) 293 F. 532, 550, certiorari denied 263 U. S. 713, 44 S. Ct. 38, 68 L. Ed. 520.

The objection is also made that the indictment is insufficient because no date or time is alleged respecting the formation of the conspiracy charged in the first count. This is well answered in Rubio et al. v. United States (C. C. A. 9) 22 F.(2d) 766, 767: "Speaking generally, the government has no knowledge of the exact time or place of the formation of the conspiracy, and to require it to specify the particular time and place, and limit the proof to that time and place, would defeat almost every prosecution under this act. For these reasons, we are satisfied that the time and place of the formation of the conspiracy are sufficiently fixed by the overt acts set forth in the indictment. Fisher v. United States (C. C. A.) 2 F.(2d) 843; Woitte v. United States (C. C. A.) 19 F.(2d) 506." Certiorari denied 276 U. S. 619, 48 S. Ct. 213, 72 L. Ed. 734. See, also, United States v. Kissel and Harned, 218 U. S. 601, 607, 31 S. Ct. 124, 54 L. Ed. 1168; Jones et al. v. United States (C. C. A. 9) 162 F. 417, 427, certiorari denied 212 U. S. 576, 29 S. Ct. 685, 53 L. Ed. 657; Breese et al. v. United States (C. C. A. 4) 203 F. 824, 830; Bradford et al. v. United States (C. C. A. 5) 152 F. 616, affirming United States v. Bradford et al. (C. C. La.) 148 F. 413, 417.

The second count of the indictment was drawn under section 32 of the Criminal Code (18 USCA § 76), which reads as follows: "Falsely pretending to be United States officer. Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any department, or any officer of the Government thereof, and shall take upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any department, or any officer of the Government thereof, any money, paper, document, or other valuable thing, shall be fined not more than $1,000, or imprisoned not more than three years, or both."

Omitting the formal parts, the second count sets forth that the defendants "on or about the 15th day of October, A. D. 1930, at Downey, * * * did knowingly, * * * and with intent to defraud * * * one Toyoki Sonoda, falsely assume and pretend to be officers and employees of the United States acting under the authority of the United States, to-wit: Immigrant Inspectors of the Department of Labor of the United States, and did then and there take upon themselves to act as such officers, when in truth and in fact, as they, the said defendants, then and there well knew, they, the said defendants, were not agents and employees of the government of the United States," etc.

It is contended that this count was insufficient to apprise the appellants with reasonable certainty of the nature of the accusation against them. A similar objection was made in Lamar v. United States, 241 U. S. 103, 116, 117, 36 S. Ct. 535, 539, 60 L. Ed. 912, where the defendant was contesting a conviction under section 32 of the Criminal Code.

The Supreme Court there said: "It is urged that the indictment is defective because of its failure to describe the circumstances of the offense. It suffices to say that after considering them we think that the many authorities cited to support the contention are wholly inapplicable to the conditions disclosed by the record, and we are further of opinion that those conditions make it clear that the contention is devoid of merit. We say this because it will be observed from the text of the indictment which we have previously reproduced that it clearly charges the illegal acts complained of and the requisite fraudulent intent, states the date and place of the commission of the acts charged, and gives the name and official character of the officer whom the accused was charged with having falsely personated. It is, moreover, to be observed that there is not the slightest suggestion that there was a want of knowledge of the crime which was charged or of any surprise concerning the same, nor is there any intimation that any request was made for a bill of particulars concerning the details of the offense charged. Under this situation we think that the case is clearly covered by § 1025, Revised Statutes 18 USCA § 556. Connors v. United States, 158 U. S. 408, 411, 15 S. Ct. 951, 39 L. Ed. 1033, 1034; Armour Packing Co. v. United States, 209 U. S. 56, 84, 28 S. Ct. 428, 52 L. Ed. 681, 695; New York Central R. R. v. United States, 212 U. S. 481, 497, 29 S. Ct. 304, 53 L. Ed. 613, 623; Holmgren v. United States, 217 U. S. 509, 523, 30 S. Ct. 588, 54 L. Ed. 861, 867, 19 Ann. Cas. 778."

The indictment under consideration contains all the requirements announced in the Lamar Case.

As a subdivision of their specification No. 1, the...

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