Harvey v. United States, No. 202.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: MANTON, L. HAND, and SWAN, Circuit
• Citation: 23 F.2d 561
• Parties: HARVEY et al. v. UNITED STATES.
• Decision Date: 16 January 1928
• Docket Number: No. 202.

23 F.2d 561 (1928)

HARVEY et al.
v.
UNITED STATES.

No. 202.

Circuit Court of Appeals, Second Circuit.

January 16, 1928.

23 F.2d 562

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23 F.2d 563

Julius Hallheimer and Goldstein & Goldstein, all of New York City (Jonah J. Goldstein, of New York City, of counsel, and John T. De Graff, of Albany, N. Y., on the brief), for plaintiffs in error

Charles H. Tuttle, U. S. Atty., of New York City (J. Edward Lumbard, Jr., Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

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

1. The point most strongly urged as error is the admission of evidence of acts done by Harvey, or by Harvey and Warner, acting with other persons not named in the indictment. It is said that this amounted to the admission of evidence of distinct conspiracies not charged in the indictment and not tending to prove any disputed element of the crime charged. It is elementary that proof of independent crimes cannot be used, except where the intent of the defendant in doing an act which may be either innocent or wrongful dependent upon the intent with which it is done, is in issue. See Marshall v. United States, 197 F. 511, 515 (C. C. A. 2).

We agree with the plaintiffs in error, and indeed it is conceded by the government, that the case at bar is not within the exception,

23 F.2d 564

for, if money was received from violators of the prohibition law, it was not disputed that it was received as a bribe, there being no claim that the payment was innocent — as might have been the case, had the defendants admitted the receipt, but contended it was in satisfaction of a debt, or the like. Therefore the plaintiffs in error are right, and this also is conceded by the government, in insisting that the evidence, to be competent, must relate to acts which might reasonably be inferred to have been done in execution of the conspiracy charged. That the government may prove several offenses committed by the conspirators pursuant to their general criminal scheme is not doubted by the defendants, nor could it be under the authorities. Ford v. United States, 10 F.(2d) 339, 348 (C. C. A. 9), affirmed 273 U. S. 593, 624, 47 S. Ct. 531, 71 L. Ed. 793. Neither is it doubtful that an act done by one or more of the conspirators to effect the object of the conspiracy is admissible against all. Silkworth v. United States, 10 F.(2d) 711, 719 (C. C. A. 2); Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. The dispute does not concern the principles involved, but the application of them to the particular facts

The incidents which are objected to as separate offenses are briefly as follows:

Witness Folci testified that Harvey and five unknown white men, one of whom he thought was named Mannix, visited his restaurant at West End, N. J., in June, 1926, said they were prohibition agents, charged him with violating the law, and asked him for a bribe, which he refused to give. We think the test of the competency of this incident is that stated by the Supreme Court in the Ford Case, supra: Whether "there was sufficient probable connection with the conspiracy already shown to allow the items of evidence to be introduced, leaving to the jury the weight of it."

The conspiracy already shown was one between the defendants named in the indictment to take bribes from violators of the Prohibition Law, and the instances previously testified to related to "speak-easies" located in the Harlem section of the city. But the crime charged in the indictment was not limited to a particular location, and any attempt to secure a bribe anywhere within the prohibition district wherein the named agents exercised their official duties may well have been an act done in execution of the conspiracy charged. The indictment alleged that it was part of the conspiracy that Harvey and the other agents should obtain evidence of violations of the Prohibition Law, in order to ask and receive bribes. Therefore any evidence of Harvey's activity in collecting evidence of violations by persons who paid bribes, or were solicited so to do, would presumptively be competent, unless the circumstances forbade the inference that it was done pursuant to the general plan. The time, the place, and particularly the character of the acts done are important in determining the probability of their being done pursuant to the conspiracy already proven.

The Folci incident was clearly during a time when the conspiracy was shown to exist. The place was not such as necessarily to exclude relevancy. If Harvey had been alone, there would be as much reason to think he was soliciting the bribe for the common pot of the conspirators as if he had sought it from the proprietor of some restaurant in Harlem. The fact that he was accompanied by unknown agents, who are not otherwise connected with the conspiracy, tends to weaken the inference that he was trying to effectuate the general conspiracy. Conceivably he may have been engaged in an entirely independent attempt at bribery, in which the unknown agents were his only fellow conspirators. But this is not necessarily so. Agent Mannix aided Harvey a month later in executing a search warrant at Bernard Levy's place on Seventh avenue, an incident directly tied up with the general conspiracy. Perhaps the raid upon Folci was also part of the general conspiracy, and the unknown agents were also members of the ring.

The indictment charged the named defendants with conspiring also with unknown persons. The question of relevancy must rest largely in the discretion of the trial judge. While the writer of this opinion would have been disposed to exclude this incident from the jury's consideration, after it appeared that no further evidence was offered to connect it more closely with the proven conspiracy, this is far from saying that it was reversible error not to have done so. If it was error at all to allow the jury to consider this evidence, we cannot believe that this single incident turned the scales of their verdict. In the total mass of the evidence against Harvey, this could not have had controlling weight.

The Folci testimony was admitted only as against Harvey. This was clearly wrong. If it was an act done pursuant to the conspiracy, it was...