McDonald v. United States

• Decision Date: 26 March 1937
• Docket Number: No. 10587.,10587.
• Citation: 89 F.2d 128
• Parties: McDONALD v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

89 F.2d 128 (1937)

McDONALD v. UNITED STATES.^*

No. 10587.

Circuit Court of Appeals, Eighth Circuit.

March 6, 1937.

Rehearing Denied March 26, 1937.

COPYRIGHT MATERIAL OMITTED

William L. Vandeventer, of Springfield, Mo. (Everett Jennings and Edward M. Keating, both of Chicago, Ill., on the brief), for appellant.

George F. Sullivan, U. S. Atty., of St. Paul, Minn. (George A. Heisey, Asst. U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Before GARDNER, THOMAS, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

Appellant was indicted jointly with ten others for the violation of section 408c, title 18, U.S.C.A., for that he had conspired with such other ten (and two other persons, who died prior to the finding of the indictment) to kidnap, transport interstate and hold for ransom, one Edward George Bremer. Section 408a, title 18, U.S.C.A. Appellant was tried jointly with two other of his co-indictees. He was found guilty and his punishment fixed at imprisonment in a penitentiary for the term of fifteen years. He has appealed, as by rule provided.

Specifically, the overt acts charged against appellant were (as the indictment set out and the evidence showed) that he had on September 2, 5, 9, and 10, 1934, at Miami, Florida, and Havana, Cuba, knowingly done acts to further the exchange and had exchanged some $92,000 of marked money, which had been paid as a ransom, or reward to his coconspirators for the release of Edward George Bremer, in exchange for unmarked money.

Bremer, the person kidnaped, had been seized by certain of the conspirators jointly indicted with appellant (who was not personally present) at St. Paul, Minnesota, on January 17, 1934, and had been thence transported by them to Bensenville, in the State of Illinois; had at the latter place been detained as a prisoner for some two weeks, pending negotiations for his release upon payment of ransom money, and had been thence transported back to the State of Minnesota, to a point near Rochester in that state, whereat he was released on payment to the actual kidnapers, or to some of them, of the sum of $200,000 in cash, which was "marked" (so called), or the numbers, denominations, and banks of issue listed. The release of Bremer, and the payment of the ransom, in marked money occurred on February 6, 1934; while, as already said, the overt acts charged against appellant occurred on and between September 2 and September 10, 1934. The first mention in the evidence of appellant's connection with the case (as one living in Detroit, Michigan, who, as soon as he could go to Cuba, would for a commission of 25 per cent. exchange the ransom money for unmarked money) occurred late in June, 1934. Appellant, from his own statement, was at that time a resident of Detroit; his principal business consisted of "gambling activities in Chicago, Detroit and Havana, Cuba." He had for some ten years, in connection with such "activities," been on occasions a visitor in Havana and as a result of such visits he "managed to control gambling in Havana."

The money paid for the release of Bremer consisted wholly of small bills, namely, fives and tens. Appellant's co-indictees had so stipulated in divers ransom notes to the kin and friends of Bremer. They also insisted that it should not be "hot," that is, marked; otherwise they would not accept it, or release Bremer. But as the record discloses, they did accept it, expecting that it would be marked, and of course, it was marked. They relied on their ability to discover markings on it; but either their ability failed them or their cupidity overcame them. The whole sum largely intact, till July, 1934, was traced from one point to another in the hands of divers of the actual kidnapers to various States, till some $92,000 of it was found to have been exchanged by appellant, at Havana, Cuba, for large bills of unmarked money, in the early days of September, 1934. Theretofore, a part of this ransom money had been exchanged for unmarked money in Chicago, with the result that one McLaughlin was arrested therefor.

Appellant was tried jointly with Weaver and Sawyer, both of whom are shown by the record to have been in the conspiracy to kidnap Bremer from the formation thereof. The latter two were also found guilty, and Sawyer has appealed on a joint record with appellant. Except appellant, all ten of his co-indictees are charged with active participation in the act of kidnaping Bremer and holding him for ransom, and with having been connected with the conspiracy from its incipiency. Appellant alone, of the eleven, has guilt attributed to him perforce the fact that he came into the case some four months or a little more after the ransom money was paid and Bremer released, and for the sole purpose of exchanging the marked ransom money for unmarked money, which could be spent safely by his co-indictees. About the latter fact and its legal implications, the instant appeal largely rages. At the time of the trial below of these co-indictees, Arthur Barker, Harold Alderton, James Wilson, Volney Davis, and Elmer Farmer had been arrested, either tried and convicted, or had pleaded guilty and were in prison; Alvin Karpis and seemingly Harry Campbell were then fugitives from justice; Byron Bolton had pleaded guilty, but had, as the vernacular puts it, "turned state's evidence," that is, testified for the appellee herein, and his sentence had not then been fixed; William J. Harrison had died after he had been indicted; and George Goetz and Fred Barker had died before the indictment was returned.

Numerous assignments of alleged errors are made in the record; but of such, five only have been urged upon us in argument. These are: (a) That appellant could not be legally prosecuted or found guilty of a conspiracy under section 408c, supra, to violate the provisions of section 408a, supra, because the conspiracy, if any, was fully consummated and had ended upon the payment of the ransom money and the release of Bremer, on February 6, 1934, and so the acts of appellant, if any, in and about the exchange of marked ransom money for unmarked money, occurring subsequent to February 6, 1934, are not within the denouncement of the statute on which appellant was tried and convicted; (b) that the court erred in admitting in evidence conversations, exhibits, and papers had and coming into existence after the payment of the ransom money and the release of Bremer; (c) that the court erred in permitting handcuffs to be put on and kept on Weaver (jointly tried with appellant) during the trial, and denying to appellant a severance and a trial separate and apart from his codefendants Weaver and Sawyer; (d) that it was error to admit secondary evidence of the numbers, indicia of identification, and physical condition of certain money found in the National City Bank in Havana, in the face of the record which showed that this money had been called in and destroyed under orders of the Treasury Department of the United States; and (e) that the court erred in refusing to charge the jury to acquit the appellant.

The contention that the conspiracy charged in the indictment, and any conspiracy under section 408c, supra, ends upon the payment of the ransom and the release of the victim, is raised on this instant record in many ways and in wellnigh every mode known to the law. The first overt act charged against appellant in the indictment, and shown by the evidence, took place on September 2, 1934, or seven months, lacking four days, after the ransom was paid and Bremer released. He had agreed, however, some time in June, 1934, to exchange this money in consideration of a large commission, and by such agreement he became a member of the conspiracy, if it still existed. The contention of the nonexistence of the conspiracy, perforce consummation thereof prior to September, 1934, includes the argument stressed herein by appellant that section 408a, supra, neither by its language nor intendment includes within the scope of its criminal denunciation the exchange of marked ransom money for unmarked money; that it merely forbids and punishes the transportation interstate and in foreign commerce, by both principals and accessories before the fact, of persons who have been kidnaped and are being held for ransom or reward, and so much and no more is all that is forbidden and punished by it. Thus in brief runs the contention of appellant.

Section 408a, title 18, U.S.C. (18 U.S. C.A. § 408a), defines and denounces as a crime the transportation across a state line or a national boundary of a person who has been kidnaped and is being held for ransom. Section 408c, title 18, U.S. C. (18 U.S.C.A. § 408c) (of the original act) denounces as a crime and punishes the entering by two or more persons "into an agreement, confederation, or conspiracy to violate the provisions of sections 408a and 408b of this title" and the doing of "any overt act toward carrying out such unlawful agreement, confederation, or conspiracy." As said already, appellant was indicted and convicted for violating the conspiracy clause of section 408c, which in substance we quote above. The second clause of section 408c, title 18, U.S.C., added by the amendment of January 24, 1936 (18 U.S.C.A. § 408c — 1), does not apply to appellant, because he was not indicted under it and because it was added to the act subsequent to the commission by the appellant of the acts and things with which he stands charged. So, its provisions are not relevant to anything in the case at bar, save as the basis of an able argument by appellant's learned counsel, to which some discussion hereinafter will be directed.

The sections referred to, define two crimes: First, the transportation in interstate commerce of a person who has been kidnaped and is being held for ransom; and, second, a conspiracy to commit the crime first above mentioned. We are here directly concerned only with the conspiracy. That upon the record,...