Cendagarda v. United States, 722.

• Decision Date: 31 March 1933
• Docket Number: No. 722.,722.
• Citation: 64 F.2d 182
• Parties: CENDAGARDA et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

64 F.2d 182 (1933)

CENDAGARDA et al. v. UNITED STATES.

No. 722.

Circuit Court of Appeals, Tenth Circuit.

March 31, 1933.

Harley W. Gustin, of Salt Lake City, Utah (Samuel A. King, of Salt Lake City, Utah, and Arthur Woolley, of Ogden, Utah, on the brief), for appellants.

C. R. Hollingsworth, U. S. Atty., of Salt Lake City, Utah (Geo. H. Lunt and Edgar C. Jensen, Asst. U. S. Attys., both of Salt Lake City, Utah, on the brief), for the United States.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

Henry Cendagarda, Frank Aboitiz, and Charles W. Brown were charged by indictment containing three counts with violations of section 88, title 18, USCA (section 37, Criminal Code). The court sustained a demurrer to the second count and directed a verdict of not guilty as to the first count.

The third count alleged that a complaint was filed before the United States commissioner for the Northern Division of the District of Utah charging Simon Bertolli with violation of the National Prohibition Act (27 USCA), and that a warrant was issued thereon for the arrest of Bertolli; that thereafter an indictment was returned in the United States District Court for such division and district charging Bertolli with a violation of the National Prohibition Act; that the defendants on October 16, 1930, in such division and district conspired to defraud the United States, "that is to say: to interfere with, obstruct and impede the administration of justice in" such district "and to interfere with and impede the United States, * * * in the exercise of its sovereign powers and functions of government, to-wit, the administration of justice and the apprehension and punishment of violators of criminal * * * laws of the United States"; that the objects of such conspiracy were that Brown should falsely represent himself to be the Bertolli named in such complaint and indictment, and the person who had violated the National Prohibition law as charged therein, to the officers of the United States, and should suffer the sentence imposed for such offense, and that Bertolli should escape punishment therefor. It further charged four overt acts to effect the objects of such conspiracy. Brown pleaded guilty to the third count.

At the close of the government's evidence, Cendagarda and Aboitiz moved the court to direct the jury to return a verdict finding them not guilty, on the ground that the proof had failed to establish a conspiracy to defraud the United States. This motion was overruled, and they were convicted and sentenced. They then filed a motion in arrest of judgment on the ground that the third count of the indictment did not state a public offense against the laws of the United States. This motion was denied.

The third count of the indictment is predicated upon the following portion of section 88, title 18, USCA:

"If two or more persons conspire * * * 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 administration of justice, the punishment of offenders, and the protection of the innocent are lawful functions of the judicial department of the United States. A conspiracy having for its object the impairing, obstructing, or defeating of the lawful function of any department of the government by deceit, craft, trickery, misrepresentation, or chicane is within the purview of the statute. Haas v. Henkel, 216 U. S. 462, 479, 30 S. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112; Hammerschmidt v. United States, 265 U. S. 182, 188, 44 S. Ct. 511, 68 L. Ed. 968. See also Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90; United States v. Keitel, 211 U. S. 370, 29 S. Ct. 123, 53 L. Ed. 230; Wallenstein v. United States (C. C. A. 3) 25 F.(2d) 708, and Green v. United States (C. C. A. 8) 28 F.(2d) 965. In such a case it is not necessary for the government to allege or prove any direct financial loss to the United States.

It follows that the third count charged an offense against the laws of the United States, and the court properly instructed the jury that it was not necessary for the prosecution to establish that the effecting of the object of the conspiracy would have resulted in pecuniary loss to the United States.

The evidence established the following facts: On the evening of October 10, 1930, two prohibition agents and two police officers entered the building at 2550 Wall avenue, Ogden, Utah. They found beer in the making, a still, whiskey, and mash. About eight o'clock Aboitiz entered the building and was placed under arrest. He claimed the beer but stated that the still belonged to one Simon Bertolli. About ten o'clock Cendagarda entered the building. He said that he had been trying to locate Aboitiz...