91 F.2d 691 (9th Cir. 1937), Marino v. United States

Citation:91 F.2d 691
Party Name:MARINO et al. v. UNITED STATES. [*]DNNo. 8343.
Case Date:July 28, 1937
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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91 F.2d 691 (9th Cir. 1937)

MARINO et al.


UNITED STATES. [*] DNNo. 8343.

United States Court of Appeals, Ninth Circuit.

July 28, 1937

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Faulkner & O'Connor, of San Francisco, Cal., for appellant John C. Marino.

Isidore B. Dockweiler and Henry I. Dockweiler, both of Los Angeles, Cal., and Albert Nelson, of San Luis Obispo, Cal., for appellant Spooner.

Otto Christensen, of Los Angeles, Cal., for appellant Antonio Gullo.

Fred A. Shaeffer, of Santa Maria, Cal., for appellant Frank Machado.

Peirson M. Hall, U.S. Atty., and Jack L. Powell, Asst. U.S. Atty., both of Los Angeles, Cal.

Before GARRECHT, DENMAN, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

Forty-six defendants were indicted charging a conspiracy (18 U.S.C.A. § 88) to violate certain tariff and revenue laws of the United States. A number of defendants pleaded guilty; twelve of them were tried, of whom six were convicted; and four of the six who were convicted have appealed to this court.

The indictment charged that defendants 'on or about the 1st day of August, 1934, and continuously thereafter down to and including the date of finding and presenting of this indictment * * * ,' which was on March 12, 1936, conspired to violate 19 U.S.C.A. § 1593(a) and (b), and 26 U.S.C.A. §§ 1152g, 1287, 1440, and 1441. The indictment charges: 'That it was the purpose and object of said conspiracy and of the said conspirators and each of them, to wilfully, knowingly, unlawfully, feloniously and maliciously transport from the Republic of Mexico, and surreptitiously import, smuggle into and land in the United States alcohol and alcoholic liquors without declaring the same as required by law, and without paying the duties thereon imposed by law, and of concealing, transporting, dealing in, possessing and selling alcohol and alcoholic liquors so smuggled into the United States and having in possession, concealing and transporting alcohol and alcoholic liquors without paying the taxes imposed thereon by the Internal Revenue laws of the United States. ' Thereafter, the indictment sets forth nineteen overt acts, including smuggling alcohol into the United States by certain of the defendants on October 23, 1934, December 16, 1934, March 29, 1935, July 5, 1935, July 11, 1935, and October 20, 1935. Three of the overt acts were set forth as storing alcohol at certain places within the jurisdiction of the court below on October 24, 1934, December 15, 1934, and December 16, 1934. Another of the overt acts was set forth to be the sharing by appellant Marino, in the division of $1,395 on October 26, 1934. It is unnecessary to set forth other overt acts charged.

18 U.S.C.A. § 88 provides: '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.'

A conspiracy is 'a combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means. ' Pettibone v. United States, 148 U.S. 197, 203, 13 S.Ct. 542, 545, 37 L.Ed. 419; Duplex Printing Press Co. v. Deering, 254 U.S. 443, 465, 41 S.Ct. 172, 176, 65 L.Ed. 349, 16 A.L.R. 196; and see United

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States v. Hutto, 256 U.S. 524, 528, 41 S.Ct. 541, 543, 65 L.Ed. 1073, and Weniger v. United States (C.C.A. 9) 47 F.2d 692, 693. It is a partnership in criminal purposes. 1 The gist of the crime is the confederation or combination of minds. 2

A conspiracy is constituted by an agreement; 3 it is, however, the result of the agreement and not the agreement itself. 4 No formal agreement between the parties is essential to the formation of the conspiracy, 5 for the agreement may be shown 'if there be concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose. ' Fowler v. United States (C.C.A. 9) 273 F. 15, 19

The purpose to be accomplished by the conspiracy may be either lawful or unlawful. If the purpose is lawful and is carried out by lawful means, then no offense is committed. If it is lawful and is carried out by criminal or unlawful means, then the statute is violated. Duplex Printing Press Co. v. Deering, supra, 254 U.S. 443, 465, 41 S.Ct. 172, 176, 65 L.Ed. 349, 16 A.L.R. 196; United States v. Hutto, supra, 256 U.S. 524, 528, 41 S.Ct. 541, 543, 65 L.Ed. 1073. On the other hand, if the purpose is unlawful and is carried out either by unlawful or unlawful means, the statute is violated. Duplex Printing Press Co. v. Deering, supra, 254 U.S. 443, 465, 41 S.Ct. 172, 176, 65 L.Ed. 349, 16 A.L.R. 196. The purpose of the conspiracy may be continuous, 6 that is, it may contemplate commission of several offenses, 7 or overt acts. 8

The crime is completed when an overt act effect the object of the conspiracy is done by at least one of the conspirators. 9 An overt act is something apart

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from the conspiracy, and is 'an act to effect the object of the conspiracy. ' Joplin Mercantile Co. v. United States, 236 U.S. 531, 535, 35 S.Ct. 291, 294, 59 L.Ed. 705. It need be neither a criminal act, 10 nor the very crime that is the object of the conspiracy. 11 It must, however, accompany or follow the agreement, 12 and must be done in furtherance of the object of it. 13

An agreement among several accused, without commission of an overt act, is not a violation of the statute. 14 Therefore, a conspirator may avoid guilt by withdrawing from the conspiracy prior to the commission of an overt act. 15 In this connection, however, affirmative action on the part of the accused is required, to show withdrawal from the conspiracy, 16 for a conspiracy once established is presumed to continue until the contrary is established. 17 All of the conspirators need not join in the commission of an overt act, 18 for, if one of the conspirators commits an overt act, it becomes the act of all the conspirators. 19

On the other hand, an accused must join in the agreement to be guilty of a violation of the statute, 20 for even if he commits an overt act, he does not join the statute unless he joined in the agreement. 21

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With respect to the purpose of the conspiracy, guilt is not avoided by the fact that such purpose was not accomplished. 22

In the situation where a conspiracy has been formed, the joinder thereof by a new member does not create a new conspiracy, 23 does not change the status of the other conspirators, 24 and the new member is as guilty as though he was an original conspirator. 25 Where, after formation of a conspiracy, one of the conspirators withdraws, such withdrawal neither creates a new conspiracy, nor changes the status of the remaining members. 26

Although participation in the agreement must be had by the accused before he can be convicted under the statute, he may be punishable as a principal, without such participation, under 18 U.S.C.A. 550, which provides that: 'Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal. ' One who commits an overt act with knowledge of the conspiracy is guilty, 27 even though he is absent when the crime, which is the object of the conspiracy, is committed. 28 Such person's knowledge as to the scope of the conspiracy, may be limited,29 and he need not know all the details of the plan or the operations.30 Knowledge of membership in the conspiracy, 31 the part played by each of the members,30 and the division of spoils 29 is immaterial. He must know the purpose of the conspiracy, 30 however, otherwise he is not guilty

From the evidence we find that Hubbard and Ryan went to Ensenada, Mexico, in the summer of 1934, boarded the Yukatrivol, and talked with West, the captain, in the presence of Auldhausen about hauling alcohol. West and Hubbard talked about whether or not West owed any money to appellant Marino. Ryan and Hubbard returned to Los Angeles. During an evening shortly afterward Hubbard, Auldhausen, and Mankin talked about the alcohol business. Auldhausen quoted prices for alcohol to Hubbard.

About a week after the trip to Ensenada Hubbard went to San Francisco and talked with appellant Marino. Hubbard testified:

'I told him what had occurred down at Ensenada, that Mr. West said a boat was running again down there and he had put some money in there. First he denied it * * *

'Finally, he admitted he had the money down there and that he had been having trouble with West and didn't know whether he would be able to collect the money and how he was going to be able to get even with him at all. I told him that I would work it out * * * he said it was all right with him, he would pay me a commission on the freight money, and a commission on the $4,500 if I could be successful in collecting any of it.'

Hubbard then returned to Los Angeles. About three weeks after the Ensenada trip, Hubbard had a conversation with Auldhausen and Mankin, in which it appeared that Mankin would smuggle alcohol into this country, through West, if the

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latter bought it from Johnston, who owned a distillery in Mexico, and that 'he would be interested in helping Marino to collect his money. ' These three then went to a hotel and joined Johnston and Harthorne. After conversing awhile, Mankin ordered 5,000 gallons of alcohol.

The next day Hubbard went to San Francisco and talked with appellant Marino. Hubbard testified that Marino said 'he had a half interest in this boat ('Yukatrivol') and wanted half of the freight money as fast as it came in. ' Hubbard then talked with Johnston, who was then in San Francisco. He then returned to Marino's office, and...

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