Ex parte O'Leary, 4602.

• Decision Date: 16 July 1931
• Docket Number: No. 4602.,4602.
• Parties: Ex parte O'LEARY et al. O'LEARY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

56 F.2d 515 (1931)

Ex parte O'LEARY et al.

O'LEARY et al. v. UNITED STATES.

No. 4602.

Circuit Court of Appeals, Seventh Circuit.

July 16, 1931.

Philip A. McHugh, of Detroit, Mich., for appellants.

L. H. Bancroft, U. S. Atty., of Milwaukee, Wis., for the United States.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

PER CURIAM.

Petitioners have applied for enlargement on bail pending the hearing of their appeal from an order dismissing their petition for a writ of habeas corpus. Inasmuch as they have served part of their sentences and the term of their imprisonment will soon expire, it is urged that we should act upon this application for enlargement pending appeal without delay. Appreciating the force of this argument, we have considered carefully their brief, and find the sole basis of their application to be an alleged lack of jurisdiction of the District Court that sentenced them, which lack of jurisdiction is based upon the asserted insufficiency of the indictment. They assert a total want of jurisdiction of the District Court to pronounce the sentences of imprisonment under which they are suffering enjailment.

Passing to one side the record in this case, which shows an appeal from the judgment thus pronounced, a dismissal of such appeal, the former ruling of this court refusing to enlarge the petitioners on bail pending further hearing, and the denial of a writ of certiorari by the Supreme Court (283 U. S. 830, 51 S. Ct. 366, 75 L. Ed. 1443), and, taking up the contentions heretofore made and heretofore rejected, we find that petitioners' attack upon the indictment, in the language of counsel for petitioners, is that, applying "the legal doctrine, defined and upheld by an unbroken line of federal court decisions, creating a positive limitation upon the right to indict for a conspiracy to commit an offense against the United States, in a certain class of cases, including: conspiracy to accept a bribe, conspiracy to give a bribe, and of having actually given a bribe, in alleged violation of section 37, Criminal Code (18 USCA § 88), the offense of bribery, under the last two quoted sections, being separate substantive offenses, — a brief statement of such legal doctrine, as contained in authoritative texts governing criminal law and procedure, and in the decisions of the United States Circuit Courts of Appeal, and of the Supreme Court of the United States, being: That when the object of an alleged conspiracy is an offense, an essential element of which is participation by at least two persons and concert of action by them, an indictment charging a conspiracy to commit that offense, will not lie, if it shows the completed offense."

Chief reliance is upon United States v. Dietrich (C. C.) 126 F. 664. Numerous other decisions are cited in support of this contention.

It seems to us, however, that the decision in United States v. Holte, 236 U. S. 140, 145, 35 S. Ct. 271, 272, 59 L. Ed. 504, L. R. A. 1915D, 281, disposes of the case contrary to the contention of petitioners. Reference to the decisions of the lower courts is hardly necessary in view of the language of the Supreme Court in this case. It is true that there was...