Capone v. United States

• Citation: 56 F.2d 927
• Decision Date: 23 March 1932
• Docket Number: No. 4672.,4672.
• Parties: CAPONE v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

56 F.2d 927 (1932)

CAPONE v. UNITED STATES.

No. 4672.

Circuit Court of Appeals, Seventh Circuit.

February 27, 1932.

Rehearing Denied March 23, 1932.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

This appeal is from a conviction on three counts which charge felonies of willfully attempting to evade and defeat income tax for the respective years 1925, 1926, and 1927, in violation of section 1114 (b)¹ of the Revenue Act of 1926, 44 Stat. 116 (26 USCA § 1266); and on two counts which charge misdemeanors of failing to file returns for the respective years 1928 and 1929, in violation of section 146(a)² of the Revenue Act of 1928, 45 Stat. 835 (26 USCA § 2146 (a).

There were two indictments, and they were consolidated and tried at the same time. The first contained but one count and charged a felony under section 1114 (b), supra; the second indictment contained twenty-two counts, of which counts 13 and 18 charged misdemeanors under section 146 (a), supra, and the other counts charged felonies under section 1114 (b), supra. Appellant was found guilty of the felonies charged in counts 1, 5, and 9, and of misdemeanors charged in counts 13 and 18 of the second indictment. As to all other counts of that indictment, and also as to the charge in the first indictment, appellant was found not guilty.

Appellant's demurrer to each count of each indictment was overruled; and, after verdict, he filed a motion in arrest of judgment, which was also overruled. With the exception of the year involved and the amounts of income and tax referred to, the felony counts are identical. This is also true as to the counts charging misdemeanors, and, with the exception of jurisdictional facts, the substance of one count of each class is set forth in the margin.³

Michael J. Ahern and Albert Fink, both of Chicago, Ill., for appellant.

George E. Q. Johnson, U. S. Atty., Jacob I. Grossman, Samuel G. Clawson, and Dwight H. Green, Asst. U. S. Attys., all of Chicago, Ill., and William J. Froelich, Sp. Asst. to Atty. Gen.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

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

The errors relied upon in this appeal are that the court erred in overruling the demurrer to each count of the indictment upon which appellant was found guilty, and in overruling his motion in arrest of judgment as to each of said counts.

It is first contended by appellant that the demurrer and motion in arrest should each have been sustained as to the felony counts, because, as he insists, those counts charge the alleged offense in the generic terms of the statute, without specification of particulars; that is to say, he contends that, in order to render the felony counts impervious to either the demurrer or the motion in arrest, the particular attempts to evade and defeat the tax upon which the government relied for a conviction should have been pleaded with particularity.

The rights of appellant which give rise to the questions herein raised are derived from Articles V and VI of the Amendments to the Constitution of the United States, and in so far as they are applicable read as follows:

"Article V. * * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. * * *"

"Article VI. In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation. * * *"

One of the reasons for the adoption of the clause referred to in Article VI was to furnish a means of preventing a violation of the right guaranteed by the clause referred to in Article V.

In interpreting these constitutional provisions, courts have quite generally held that where the offense is purely statutory, having no relation to the common law, it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description in the substantial words of the statute, without any further expansion of the matter; but it is also true that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819.

The cases are legion in which indictments have been attacked by the same methods and for the same reason as are now under discussion. In many such cases the indictments have been held bad and in many they have been held good as tested by the constitutional provisions above referred to, depending in each case upon the particular facts then before the court. The facts in each case, of course, were different, but in each case the question presented was the same: Were the facts pleaded with such particularity as to apprise the accused of the nature of the crime with such certainty as to enable him to prepare his defense and to plead the judgment as a bar to any subsequent prosecution for the same offense? In some instances it was held that the indictments were sufficient which merely described the crime in the language of the statute because the language of the statute described the crime with such particularity as to guarantee the constitutional rights above referred to. In other cases it was held that the indictments were bad which merely followed the language of the statute, not because of any hard and fast rule to that effect, but because the language of the particular statute then before the court did not describe the crime with sufficient particularity as to accord the defendant his constitutional rights above referred to.

Appellant relies largely upon the principles laid down in United States v. Cruikshank, 92 U. S. 542, 557, 23 L. Ed. 588. The indictment in that case contained sixteen counts, the first eight of which charged defendants with having handed together with the unlawful and felonious intent to injure, oppress, threaten, and intimidate two colored citizens of the United States, and with the further intent of thus hindering and preventing said colored citizens in their respective free exercise and enjoyment of their rights and privileges accorded them under the Federal Constitution. The next eight counts are a repetition of the first eight, except that, instead of the words "banded together," the words "combined, conspired, and confederated together" are used. The court held that all counts except 5, 8, 13, and 18 referred to rights which were guaranteed, not by the Federal Constitution, but by the Constitution of Louisiana, and for that reason no federal crime was charged in any of said counts. Counts 5, 8, 13, and 18 charged, in substance, that the intent was to hinder and prevent the two colored citizens in the free exercise and enjoyment of "every, each, all and singular" of the rights granted them by the Federal Constitution. There was no specification of any particular right, but the language was broad enough to cover all. The court said: "According to the view we take of these counts, the question is not whether it is enough, in general, to describe a statutory offence in the language of the statute, but whether the offence has here been described at all. * * * It is an elementary principle of criminal pleading, that where the definition of an offence, * * * includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, — it must descend to particulars."

As illustrative of this statement, the court further said: "It is a crime to steal goods and chattels; but an indictment would be bad that did not specify with some degree of certainty the articles stolen. This, because the accused must be advised of the essential particulars of the charge against him, and the court must be able to decide whether the property taken was such as was the subject of larceny. So, too, it is in some States a crime for two or more persons to conspire to cheat and defraud another out of his property; but * * * an indictment for such an offence must contain allegations setting forth the means proposed to be used to accomplish the purpose. This, because, to make such a purpose criminal, the conspiracy must be to cheat and defraud in a mode made criminal by statute; and as all cheating and defrauding has not been made criminal, it is necessary for the indictment to state the means proposed, in order that the court may see that they are in fact illegal. * * * So here, the crime is made to consist in the unlawful combination with an intent to prevent the enjoyment of any right granted or secured by the Constitution, etc. All rights are not so granted or secured. Whether one is so or not is a question of law, to be decided by the court, not the prosecutor."

In other words, the court held that the right about to be violated should be particularized in order that the court might say, as a matter of law, whether such right was guaranteed by the Constitution.

It will be observed in that case that the court was dealing with a certain right which was threatened with violation, which right, although not specifically designated, was alleged to be guaranteed by the Federal Constitution to certain citizens named. The controversy in that case related only to the particularization of that right and not to the specific acts of defendants by which it was alleged that defendants had attempted to interfere with that right. Indeed, no complaint was made as to those allegations, although they were made in the most general terms.

In the instant case the right alleged to be violated is that of the government to collect an income tax from appellant. Under the ruling of the Cruikshank Case, it was therefore necessary that the indictment should state facts from which the court, as a matter of law, could say that there was an income tax due from appellant to the government, for all...