Enrique Rivera v. United States

• Decision Date: 07 April 1932
• Docket Number: No. 2564.,2564.
• Citation: 57 F.2d 816
• Parties: ENRIQUE RIVERA et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

57 F.2d 816 (1932)

ENRIQUE RIVERA et al. v. UNITED STATES.

No. 2564.

Circuit Court of Appeals, First Circuit.

April 7, 1932.

Francis H. Dexter, of San Juan, Porto Rico (Benicio F. Sanchez, of San Juan, Porto Rico, on the brief), for appellants.

Frank Martinez, U. S. Atty., of San Juan, Porto Rico (Frank Bianchi, Asst. U. S. Atty., of San Juan, Porto Rico, and A. Chesley York, Asst. U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge.

MORRIS, District Judge.

This is an appeal brought by Faustino Enrique Rivera and Ramon Monchin from a judgment of the District Court of the United States for the District of Porto Rico, in favor of the United States, in a criminal prosecution for violation of section 37 of the Criminal Code of the United States (18 US CA § 88).

On June 25, 1930, the grand jury for the District of Porto Rico had presented to it by the acting United States attorney a form of an indictment containing three counts against the above-named defendants.

As to the first count, the grand jury returned "not a true bill." To the second and third counts it returned "a true bill."

Upon trial the petit jury returned a verdict of "not guilty" on the second count, and "guilty" on the third count.

Counts 1 and 2 are eliminated from our consideration. Count 3 is in the language following: "That on about the 18th day of April, 1930, and upon other dates to these grand jurors unknown, at Porto Rico, in the District of Porto Rico and within the jurisdiction of this Court, and in other places to these Grand Jurors unknown, Faustino Enrique Rivera (a) Fa and Ramon Arzon (a) Monchin, did unlawfully, willfully and knowingly conspire, combine, confederate and agree together, with each other, and with divers other persons to these Grand Jurors unknown, to fraudulently and knowingly facilitate the transportation of certain merchandise which had been imported in the United States contrary to law and which the said defendants then and there well knew to have been imported into the United States contrary to law in that the duty on said merchandise as required by the Tariff Act of 1922 was not paid, which said merchandise consisted of 93 sacks of Holstein Pilsener Beer and the transportation of which said merchandise was facilitated as aforesaid in Brockway truck, license plate No. H-404, motor No. 4537. That in pursuance of said conspiracy, combination, confederation and agreement, and to effect the object thereof, the aforesaid truck was loaded with the said merchandise, to wit, 93 sacks of Holstein Pilsener Beer, and the said truck was escorted by the defendants herein in a Dodge Victory Sedan automobile, license plate No. 9843, and the said defendants parked the said automobile across the road in front of the said truck and came out of the automobile with guns, and several other persons to the Grand Jurors unknown also came out of the truck, all armed with guns, and tried to prevent and prevented the search and seizure of the truck, and which said acts were done on or about April 18, 1930, at Porto Rico, in the district aforesaid and within the jurisdiction of this Court."

To this indictment the defendant filed a demurrer in the following language:

"Now come the defendants through their undersigned attorney and demur to the third count of the indictment for the same is not sufficient in law and is defective, uncertain and insufficient in the following particulars:

"That the alleged conspiracy does not show facts sufficient to bring it within any statute of the United States.

"That there is no sufficient allegation of the object of the alleged conspiracy.

"There is no sufficient showing of unlawful means, or the commission of any overt act by these defendants.

"That the attempted statement of facts seeking to show a connection of these defendants with an alleged conspiracy are statements of conclusion of law.

"That said third count of the indictment is vague, indefinite and uncertain in failing to show:

"(a) When the alleged conspiracy was entored into. (b) What the alleged conspiracy consisted of. (c) Whether the alleged conspiracy was carried out. (d) When was the alleged conspiracy carried out? (e) What acts were carried out pursuant to said conspiracy, and which acts were commenced and consummated. (f) Whether said conspiracy is still in existence or has terminated.

"Wherefore the defendants pray that said third count of the indictment be quashed or for any other remedy that the court may deem proper and just."

The demurrer was overruled by the District Judge. Following conviction, the defendants filed a motion in arrest of judgment covering the same grounds set forth in the demurrer. The motion was denied. Following this there was a motion for a new trial which was also denied. Refusal to grant a new trial is a matter within the discretion of the trial judge, and not a matter for consideration in this court. Di Carlo v. United States (C. C. A.) 6 F.(2d) 364, 369.

Eight assignments of errors are alleged as follows:

(1) That the court erred in not sustaining the demurrer to the third count of the indictment.

(2) That the court erred in admitting Mr. Erkilla to testify that he received information that Faustino Enrique Rivera and Ramon Arzon were going to escort a contraband, over the objection of the defendants, for this evidence is hearsay evidence and inadmissible.

(3) That the District Court erred in not directing the jury to find the defendants not guilty at the close of the whole case.

(4) That the District Court erred in entering the judgment against the defendants upon the verdict in this case.

(5) That the court erred in overruling and denying and in not granting the motion of said defendants in arrest of judgment. The third count of the indictment thereof fails to state an offense within section 37 of the Criminal Code of the United States.

(6) That the court erred in overruling and denying the motion of the defendants for a new trial.

(7) That the verdict of the jury is not supported by any competent evidence in the record.

(8) And for other errors appearing in the record.

The indictment is drawn under section 37 of the Criminal Code (18 USCA § 88), which provides as follows: "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 not more than $10,000, or imprisoned not more than two years, or both."

The object of the conspiracy was to "fraudulently and knowingly facilitate the transportation of certain merchandise which had been imported into the United States contrary to law," which comes under the inhibition of 19 USCA § 497 (42 Stat. 982, § 593 (b), as follows: "If any person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury."

It is apparent from a reading of section 37 of the Criminal Code, and it has been repeatedly so held, that a conspiracy to commit a crime is a different offense than the crime that is the object of the conspiracy. Williamson v. United States, 207 U. S. 425, 447, 28 S. Ct. 163, 52 L. Ed. 278; United States v. Rabinowich, 238 U. S. 78, 85, 35 S. Ct. 682, 59 L. Ed. 1211.

An indictment is sufficient that charges a statutory crime substantially in the words of the statute. Jelke v. United States (C. C. A.) 255 F. 264. A crime which is the object of the conspiracy need not be described with the same particularity in the indictment for conspiracy as in an indictment for such crime itself. Ford v. United States (C. C. A.) 10 F.(2d) 339; Taylor v. United States (C. C. A.) 2 F.(2d) 444, 446; Rulovitch v. United States (C. C. A.) 286 F. 315; Anderson v. United States (C. C. A.) 260 F. 557.

It is not essential that it be consummated. United States v. Rabinowich, supra; Williamson v. United States, supra.

To satisfy the conditions of the conspiracy statute, one or more of the conspirators must do some act to effect the object of the conspiracy; that is, there must be an overt act alleged. Jones v. United States (C. C. A.) 162 F. 417; United States v. Linton (D. C.) 223 F. 677.

The means by which the object of the conspiracy is to be attained need not be set out in detail. Houston v. United States (C. C. A.) 217 F. 852, 857. It is sufficient if an indictment contains a general description of the means by which the object is to be attained. Perrin v. United States (C. C. A.) 169 F. 17, 21; United States v. Benson (C. C. A.) 70 F. 591, 596.

Time and place of the formation of the conspiracy is sufficiently charged in the recital of the offense or if set forth in the overt act. Rubio v. United States (C. C. A.) 22 F.(2d) 766; Fisher v. United States (C. C. A.) 2 F.(2d) 843.

The place of the conspiracy is immaterial provided an overt act is committed within the jurisdiction of the court. Hyde & Schneider v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136.

In general, an indictment must...