Dorsey v. United States, 12294.

• Decision Date: 01 September 1949
• Docket Number: No. 12294.,12294.
• Citation: 174 F.2d 899
• Parties: DORSEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

174 F.2d 899 (1949)

DORSEY v. UNITED STATES.

No. 12294.

United States Court of Appeals Fifth Circuit.

June 3, 1949.

Rehearing Denied September 1, 1949.

Joe Creel, Miami, Fla., Meinhard H. Myerson, Jacksonville, Fla., Dan Chappell, Bart A. Riley, A. C. Dressler, Miami, Fla., for appellant.

Herbert S. Phillips, U. S. Atty., Tampa, Fla., Fred Botts, Asst. U. S. Atty., Miami, Fla., for appellee.

Before SIBLEY, McCORD, and WALLER, Circuit Judges.

SIBLEY, Circuit Judge.

Tharp, Howard, Dorsey and Webb were indicted in Count 1 for a conspiracy to violate General Ration Order No. 8 and Third Revised Ration Order No. 3 made under the Second War Powers Act, 50 U. S.C.A.Appendix, § 631 et seq., with respect to rationed sugar; and in Counts 2 and 3 Tharp was charged with substantive offenses with reference to rationed sugar documents; and in Counts 4 and 5 Howard was charged with similar substantive offenses. Howard pleaded guilty to Counts 4 and 5 and was not tried on Count 1. The other defendants were convicted and sentenced on Count 1 only, and appealed. Webb was put on probation and has not prosecuted his appeal. Tharp has died and the prosecution has abated as to him. Dorsey's conviction under Count 1 is now involved. The points argued for him are: 1. That Count 1 should have been dismissed on motion; 2. That several conspiracies were proved instead of the one charged and acquittal should have been directed on motion; 3. That Dorsey was illegally arrested and searched and the evidence so obtained should have been suppressed; 4. The judge misquoted evidence to the jury; and 5. There was other judicial unfairness.

1. The first count, six pages long, is verbose and difficult to follow, but charges a conspiracy lasting from June 1, 1945, to Dec. 1, 1946, to violate the Ration Orders above referred to by securing sugar ration checks for payees not entitled to them or the sugar stated in them; by selling and transferring such checks to persons not entitled to the checks or the sugar; by selling and distributing counterfeit sugar stamps and securing sugar thereon in violation of the Second War Powers Act and the regulations made thereunder; by paying money as bribes to Dorsey and by his receiving the money, Dorsey being a person acting for and in behalf of the United States in an official capacity as a Special Agent in Region Four of the Office of Price Administration, with intent to influence his actions and decisions, and with intent on Dorsey's part to have his actions and decisions influenced thereby, and to pay him large sums to do or omit to do official acts such as securing official documents, making official investigations, and covering up offenses and irregularities performed by the other conspirators in the acquisition and use of sugar and sugar documents contrary to the duly promulgated regulations for the control of sugar, a rationed article. Twenty-two overt acts are set forth.

The count is not multifarious. It charges a general plan to subvert the Ration Orders and to aid and cover the unlawful operations by including in it a Special Agent of the Office of Price Administration. It does not allege that the violations of the Orders were to be "wilfully" done, or that Dorsey's official capacity was known, as would be necessary in charging substantive offenses. But in charging that the plan was to violate the Orders wilfulness is implicit, and a plan to pay Dorsey to violate his official duty implies that they all knew his official capacity. It is well settled that in a charge of conspiracy to commit offenses the conspiracy is the gist of the offense and that the offenses to be committed need not be alleged with the fullness that would be necessary in prosecuting for the commission of such offenses. Thornton v. United States, 271 U.S. 414, 423, 46 S.Ct. 585, 70 L.Ed. 1013; Williamson v. United States, 207 U.S. 425, 449, 28 S.Ct. 163, 52 L.Ed. 278; Hill v. United States, 4 Cir., 42 F.2d 812. In ruling on the motion to dismiss the court held that such wilfulness and knowledge would have to appear in proof, but that the conspiracy charge was sufficiently made. There was no error.

2. The evidence tended to prove that the defendants other than Dorsey had been operating for some time, but that Dorsey did not enter the picture till October, 1946. His joining the conspiracy at that time did not make a new and independent conspiracy. There was certainly no fatal variance between what was alleged and what was proved. There was no ground for acquittal in this situation.

3. Tharp had been and Dorsey still was connected with the Office of Price Administration, and knew each other well. Howard was a large user of sugar and bought the contraband documents. He was detected and implicated Tharp. Tharp was arrested in Howard's office by government investigators, who were not arresting officers, in the act of dealing with Howard and was searched and questioned, and he made a sworn written confession charging Dorsey with being a party to the conspiracy, and detailing Dorsey's dealings. He agreed with the investigators to try to trap Dorsey the next morning at Tharp's home by giving him two $3,000 checks as having been paid over by Howard for sugar checks furnished by Dorsey. Dorsey met the appointment at Tharp's home, the investigators being concealed, and there is some conflict as to what occurred, that most unfavorable to Dorsey being that Tharp and Dorsey had some conversation, and then Tharp asked Dorsey if he had picked up the two checks, and Dorsey asked which ones, and Tharp said it was the checks he gave Howard, O. P. A. checks, 50,000# checks. Dorsey said he...