O'BRIEN v. United States

• Decision Date: 27 July 1931
• Docket Number: No. 4503.,4503.
• Citation: 51 F.2d 674
• Parties: O'BRIEN v. UNITED STATES, and four other cases.
• Court: U.S. Court of Appeals — Seventh Circuit

51 F.2d 674 (1931)

O'BRIEN v. UNITED STATES, and four other cases.

No. 4503.

Circuit Court of Appeals, Seventh Circuit.

July 27, 1931.

Wilbur A. Royse, Clarence W. Nichols, and Fred R. Bonifield, all of Indianapolis, Ind., for appellants.

George R. Jeffrey, U. S. Atty., and Alexander G. Cavins and Telford B. Orbison, Asst. U. S. Attys., all of Indianapolis, Ind., for the United States.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

The five appellants, O'Brien, Ridenbaugh, Lambert, Curran, and Gray, all police officers of the city of Indianapolis, were indicted with others on three counts of an indictment, two of which were dismissed as to appellants. The remaining count charged: "That * * * (appellants and others) * * * on or about the first day of January, 1929, and thereafter continuously, did then and there unlawfully, wilfully, knowingly, corruptly and feloniously combine, conspire, confederate, arrange and agree together and with each other and with other persons * * * unknown, to commit an offense * * * which offense was that they * * * would then and thereafter and in the said district unlawfully and feloniously and for beverage purposes, transport, possess for sale and sell alcohol and other intoxicating liquors fit for beverage purposes * * * and would unlawfully maintain in the City of Indianapolis * * * rooms, buildings and places wherein such alcohol and other intoxicating liquors would be so sold and would be unlawfully kept therefor."

The jury found all the appellants guilty. O'Brien and Ridenbaugh were sentenced to four months' imprisonment; Lambert was sentenced to imprisonment for ninety days; Curran and Gray were each given a sixty-day sentence. As to the other eight defendants named in the indictment, three were never apprehended, one pleaded guilty, one was dismissed upon direction of the court, and three others were found guilty. One of these three obtained a new trial. Of the thirteen defendants, seven were policemen. One obtained a new trial, one was dismissed by the court for want of evidence to connect him with the alleged conspiracy. The other five have appealed.

The assigned errors are: (1) Refusal to direct a verdict in favor of each appellant; (2) the entering of a judgment upon the verdict when the evidence was such as to estop the government from prosecuting the case.

On August 14, 1930, three prohibition agents, Kroencke, McGrath, and Wilson, in connection with one Lyle, opened what appeared to be a pool room in the city of Indianapolis. Lyle, who was placed in charge of the business, was a decoy employed by the prohibition agents, ostensibly to operate the pool room, but in reality to secure evidence against violators of the prohibition law. Lyle was loaned to the government agents by the state officials of Indiana. He had been previously engaged in the bootlegging business in Indianapolis.

EVANS, Circuit Judge (after stating the facts as above).

Appellants challenge the sufficiency of the evidence to support the verdict. They deny that it disclosed a conspiracy or, if such conspiracy be shown, a guilty participation in it by any appellant.

As to the first objection, little need be said other than to state our conclusions. That there was a conspiracy to violate the prohibition law, there can be no doubt. The conspiracy was conceived by the three prohibition agents, who enlisted the services of a decoy, Lyle, to more effectually accomplish their object. A place was rented, ostensibly for the operation of a pool hall. At this place, liquor was possessed, sold, and given away, as well as transported to and from it. While the record seems barren of proof as to actual sales therein, positive proof established the fact that liquor was brought to the place and distributed by Lyle to the several policemen who called at the place at various times. It might be urged, perhaps, that the object of the conspiracy was to entrap certain suspected offenders. Nevertheless such entrapment was to be accomplished through the violation of the Prohibition Act. As a conspiracy may have several objects, it follows that, if one of its objects be the violation of a federal law, it falls within the condemnation of the statutes. U. S. v. Rabinowich, 238 U. S. 78, 86, 35 S. Ct. 682, 59 L. Ed. 1211; Frohwerk v. U. S., 249 U. S. 204, 209, 39 S. Ct. 249, 63 L. Ed. 561; Taylor v. U. S. (C. C. A.) 2 F.(2d) 444; Allen v. U. S. (C. C. A.) 4 F.(2d) 688.

Whether appellants, or any of them, joined in the conspiracy is a much closer fact question. Our consideration of the evidence must, in view of the question presented (the existence of sufficient evidence to go to the jury), be limited largely to a review of the government's testimony. The fact that the appellants disputed the government's witnesses, and denied guilty participation in any offense, was evidence for the jury to consider and weigh. If any evidence tended to establish the offense charged, however, the denial by appellants would not avoid the necessity of submitting the fact issues to the jury. The government's case would no doubt have been much stronger had Lyle, who represented the prohibition agents and played the leading role in the conspiracy, testified. His nonappearance, while perhaps weakening the government's case, was not fatal to the prosecution. His nonappearance may, too, be accounted for, because the unenviable part he played would probably have made him valueless or worse than valueless as a witness. Nevertheless, appellants' criticism of his nonappearance is appreciated, and the evidence has been examined with that fact as a background.

The only offense charged in this indictment was a conspiracy to violate the Prohibition Act. The evidence tending to show that the various officers were corrupted by money bribes, by liquor, or by free drinks, bore only on the appellants' alleged guilty participation in the conspiracy.

Considering all of the evidence and not overlooking the position and duty of a police officer, we cannot say that the court erred in submitting the case to the jury. No doubt the appellants did not know the extent of the conspiracy, nor the names of all those who participated in it. They did know that there was an unlawful enterprise being conducted in the pool hall, and they, knowing such facts, gave active aid and support to its successful consummation. The support which one may give to an unlawful conspiracy naturally differs. There are leading and minor roles to be played. One actor is active, another nonactive. Omissions may, under certain circumstances, be tantamount to acts of commission. Guilt may in some instances be established by nondoing, as well as by affirmative acts, provided the intended and actual effect of such nonaction is to advance or consummate the object of the conspiracy. Allen v. United States (C. C. A.) 4 F.(2d) 688.

Entrapment; Estoppel. A difficult question is presented by the record, so far as the issue of entrapment is concerned. The district judge submitted this issue to the jury with instructions as favorable to appellants as they could have legitimately requested. He charged the jury:

"We have a rule of law, Gentlemen, which says that if an officer, or a person places into the mind of someone else that he should commit a crime, when that was not in that person's mind until it was so placed there, and he goes ahead and commits that crime, he cannot be convicted if the person who placed that into his mind, does it for the purpose of entrapping him. That is to say, they must have a strong suspicion that the person is a law violator, or that person must do something himself to invite the invitation to commit a crime, before it can be suggested by someone else, and not be considered as an entrapment. Because, in this land of ours, Gentlemen, public policy forbids that officers sworn to enforce the law, should seek to have that law violated, or that those whose duty it is to detect criminals, should create them.

"That is to say, in this case, public policy says that a prohibition officer who is sworn to enforce the law, should not, himself, seek to violate that law, and that they whose duty it is to detect crime, should not create it.

"So that when an officer induces a person who has had no intention of committing a crime, to violate the law, the Courts will not lend their aid in the punishment of persons thus lured into committing crime.

"I think that is a fair statement of the law, Gentlemen, with reference to entrapment. That is to say, if the prohibition officers induced these defendants to violate the law, these defendants not having in their minds, at that time, and having no intention to commit a crime, or violate the law, and these prohibition officers not having had sufficient knowledge that they had been violating the law, then you cannot punish the Defendants for doing the things that they are charged in this Indictment with having done, because that would be contrary to public policy under our law.

"* * * If, * * * you have a reasonable doubt as to whether or not these Defendants were entrapped into doing the things that they did — if you find they did those things — as the term `entrapment' has heretofore been explained to you, in these instructions, then it is your duty to return a verdict of not guilty."

In view of this charge, the only error upon which appellants could rely arises out of the court's failure to direct a verdict. To determine this question, we must examine the evidence and apply the proper law.

There was evidence which supported the prohibition officers in their asserted belief that the National Prohibition Act was being extensively violated in Indianapolis, and this violation was in part attributed to the nonaction, if not to the connivance, of the police officers of the city. Certain prohibition agents made a preliminary investigation of the conditions in Indianapolis and found that certain police officers not only failed to...