Houston v. United States

• Decision Date: 13 October 1914
• Docket Number: 2288.
• Citation: 217 F. 852
• Parties: HOUSTON et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

217 F. 852

HOUSTON et al. v. UNITED STATES. ^[1]

No. 2288.

United States Court of Appeals, Ninth Circuit.

October 13, 1914

The plaintiffs in error were convicted of conspiracy under section 5440 of the Revised Statutes. The indictment alleged in substance, that on or about April 1, 1908, at Seattle, in the state of Washington, the defendants did willfully knowingly, and unlawfully and feloniously conspire, combine confederate and agree together to defraud the United States of divers large sums of money, and to bar the United States of its legal remedies to recover the moneys of which it was to be defrauded, and further to defraud and deceive the officers of the United States, and to defraud the United States of the benefits which would have resulted from honest and competitive bids and proposals to contract for the furnishing and sale to the United States of coal. The subject-matter of said conspiracy and the objects thereof and the means by which the same were to be effected, were as follows: On or about March 10, 1908, the United States, acting through the Quartermaster for the Department of the Columbia of the United States Army, published and circulated an advertisement inviting bids and proposals to contract for the furnishing and sale to said United States of certain large quantities of coal which the United States desired to purchase for governmental use during the fiscal year commencing July 1, 1908, and ending June 30, 1909, at those certain military posts known as Ft. Davis, Ft. St. Michael, and Ft. Liscomb, all situated in the District of Alaska, which bids and proposals to contract were to be submitted to the said Chief Quartermaster on April 10, 1908; that the principal object of said conspiracy was to induce the United States to award and let contracts for the purchase of coal and to purchase and pay for said coal at grossly exorbitant and fraudulent prices, whereby the United States should be defrauded of large sums of money for the use and benefit of said conspirators, which object was to be effected and consummated by means of collusive, dishonest, and fraudulent bids and proposals to contract for the furnishing of coal, which bids and proposals to contract should be ostensibly competitive but in fact collusive, dishonest, and noncompetitive, and for grossly exorbitant prices to be secretly agreed upon by said conspirators; that it was also one of the objects of said unlawful conspiracy that, after the United States should have been thus defrauded, the true facts in the premises should be concealed from the United States, whereby the United States should be defrauded of its legal remedies to recover the moneys of which it should have been defrauded, which object was to be effected and consummated by means of false, fraudulent, and fictitious vouchers and entries, and books of account relating to the disbursement and use by said conspirators of the moneys of which the United States was to be defrauded as aforesaid. And the indictment charges that said unlawful conspiracy has, at all times since April 1, 1908, been furthered and continued in force by each of said conspirators.

The indictment alleges as overt acts: (1) That after the formation of said conspiracy and during the continuance thereof, and to effect the object thereof, said John H. Bullock on August 13, 1908, at Vancouver, Wash., did knowingly, unlawfully, and corruptly induce, persuade, and cause one John E. Baxter as Quartermaster of the United States Army to issue, and the said John E. Baxter did issue, a certain check or warrant drawn upon the First National Bank of Portland, bearing date August 13, 1908, in favor of John J. Sesnon Company, for the sum of $39,163.50, which check was subscribed by said Quartermaster and was for funds and money of the United States, then and there on deposit in the First National Bank of Portland, Or.; (2) that on September 1, 1908, at Seattle, Wash., the said Bullock did knowingly, unlawfully, and corruptly induce, persuade, and cause one Frank A. Kane as agent of said John J. Sesnon Company, to indorse and negotiate said check, which said Kane then and there did, and which check was thereafter, on September 2, 1908, duly paid by said First National Bank of Portland, Or., out of the aforesaid funds of the United States; (3) that on August 13, 1908, at Vancouver, Wash., said Bullock corruptly induced and persuaded and caused one John E. Baxter, Quartermaster of the United States Army, and the said Baxter did issue a certain check or warrant drawn upon the First National Bank of Portland, bearing date August 13, 1908, in favor of John J. Sesnon Company for the sum of $53,878.50, which warrant was subscribed by said Baxter as Quartermaster and was for funds and moneys of the United States then and there deposited and in the said First National Bank; (4) that on September 1, 1908, at Seattle, Wash., said Bullock knowingly, unlawfully, and corruptly induced, persuaded, and caused Frank A. Kane as agent of said John J. Sesnon Company to, and the said Frank A. Kane then and there did, indorse and negotiate said check or warrant, which check or warrant was thereafter, and on September 2, 1908, duly paid by the First National Bank of Portland, Or., out of the aforesaid funds of the United States.

Samuel H. Piles, James B. Howe, Charles H. Farrell, James H. Kane, and Wickliffe B. Stratton, all of Seattle, Wash., for plaintiff in error Houston.

O. L. Willett and Frank Oleson, both of Seattle, Wash., for plaintiff in error Bullock.

B. D. Townsend, of Washington, D.C., and Glenn E. Husted, and F. C. Rabb, both of Portland, Or., Special Asst. Atty. Gen., for the United States.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

The indictment charges that the conspiracy was entered into on April 1, 1908, and that it has at all times since that date been 'furthered and continued in force' by each of said conspirators. Four overt acts are alleged to have been done in August and September, 1908. The substance of the objections to the indictment is that it contains no allegation that bids were ever actually interposed by the conspirators, or what such bids were, that the crime could not be completed without the initial overt act of interposing bids by the cooperation of the conspirators, and that all overt acts must be alleged. We find no merit in these objections.

Under section 5440, the offense consists of the unlawful scheme upon which the minds of the conspirators have met, together with an act to effect the object of the conspiracy. The allegation that a single act was done by one of the conspirators, which had for its purpose the furtherance of the unlawful scheme, completes the allegation of the offense, and the rule is well settled that it need not appear upon the face of the indictment that the overt act was such that it could be seen to have a necessary or logical relation to the conspiracy charged. It is enough if the indictment allege that it has that effect. In brief, it is sufficient to state the overt act without alleging the manner in which it tended to effect the purposes contemplated. We so held in United States v. Benson, 70 F. 591, 17 C.C.A. 293, following United States v. Sanche (C.C.) 7 Fed. 715, United States v. Donau, 11 Blatchf. 168, Fed. Cas. No. 14,983, and the same has been held in Gantt v. United States, 108 F. 61, 47 C.C.A. 210, and United States v. Shevlin (D.C.) 212 F. 343, and we find no decision to the contrary.

But it is said that by the decision of the Supreme Court in Hyde v. United States, 225 U.S. 347, 32 Sup.Ct. 793, 56 L.Ed. 1114, Ann. Cas. 1914A, 614, a new rule of pleading has been educed, that, inasmuch as it was held in that case that the offense defined in section 5440 is not complete until an overt act is done to carry out the purpose of the conspiracy, the averments by which the overt act is pleaded must upon their face show that the act was so related to the conspiracy as necessarily to be a portion thereof. We do not so understand that decision. The court was there dealing with the question whether an overt act performed in one district by one of the parties who had conspired in another district would give jurisdiction to the court in the district where the overt act was performed as to all the conspirators. It was held that, under section 5440, an overt act was necessary to complete the offense. No new rule of pleading was announced, and it does not follow from any principle there affirmed that an indictment in a conspiracy case which would be good and valid before that decision should now be held defective. Under a rule of pleading such as is now contended to have been established by that case, the very indictment which in that case the court sustained would have been subject to objection on the very ground that is here urged. For that indictment contained no allegation which showed that the overt acts pleaded therein would tend to effect the object of the conspiracy. In the opinion the court said:

'The powers of the Land Office were necessarily to be invoked and proceedings therein instituted and prosecuted by acts innocent indeed of themselves, taking only criminal taint from the purpose for which they were done.'

In that case the indictment charged conspiracy to defraud the United States of public lands in lieu of lands within forest reserves established in Oregon and California, by means of false and fraudulent proofs, whereby the conspirators were to obtain fraudulently from those states title to and possession of school lands within the limits of such reserves, which were open to purchase from those states by residents thereof upon appropriate applications supported by...