Laska v. United States, 1317.

• Decision Date: 13 April 1936
• Docket Number: No. 1317.,1317.
• Parties: LASKA v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

82 F.2d 672 (1936)

LASKA v. UNITED STATES.^*

No. 1317.

Circuit Court of Appeals, Tenth Circuit.

March 27, 1936.

Rehearing Denied April 13, 1936.

Ralph L. Carr, of Denver, Colo. (Jean S. Breitenstein and John G. Reid, both of Denver, Colo., and David Tant, of Oklahoma City, Okl., on the brief), for appellant.

F. M. Dudley, Asst. U. S. Atty., of Oklahoma City, Okl. (William C. Lewis, U. S. Atty., and George E. Massey, Jr., Asst. U. S. Atty., both of Oklahoma City, Okl., on the brief), for the United States.

Before McDERMOTT and BRATTON, Circuit Judges, and KENNEDY, District Judge.

McDERMOTT, Circuit Judge.

Ben B. Laska, an active practitioner at the bar, was convicted of conspiracy to violate the statute prohibiting the transportation in interstate commerce of a kidnaped person. 18 U.S.C.A. § 408c. The details of the atrocious crime perpetrated on Charles Urschel may be found in four opinions of this court on the appeals of other members of the conspiracy.¹ Suffice it here to say that on the night of July 22, 1933, Kelly and Bates, armed with a machine gun and a revolver, interrupted a bridge game at the Urschel home, abducted him and carried him to the Shannon farm in Texas; there they held him, chained and blindfolded, until July 31. On July 30 Kelly collected $200,000 ransom in twenty-dollar bills, the numbers on which were kept. The charge against Laska is that he entered the conspiracy after August 15, and that the part he played was to aid Mrs. Bates and her son Edward Feldman to change the marked money into good money and in accepting ransom money, knowing it to be such, in exchange for his legal services.

The Offense Charged. An understanding of the indictment may dispel some confusion which appears in the briefs. It alleges that from July 22, 1933, until the return of the indictment on December 14, 1934, 14 persons, including Laska, conspired to violate the Lindbergh Law. Bates and Kelly and the Shannons, heretofore convicted, were named; their part in the conspiracy — the abduction of Urschel, holding him for and collecting the ransom — was alleged. As an integral part of the original conspiracy it was alleged that the conspirators, including Laska, would proceed to sundry distant places "for the purpose of changing said ransom money for other moneys or securities in order to avoid detection, apprehension and arrest, through the means of marked money."

Twenty-nine overt acts were alleged, 15 of which dealt with the abduction, holding, collection and concealment of the ransom before Laska entered the scene. Eight overt acts of burying or otherwise concealing the ransom by other members were alleged to have occurred during the 15 months after Laska is alleged to have joined the conspiracy. Five overt acts are alleged as to Laska, to wit, the paying to him on two occasions of $8,000 and $2,000, and his receipt, possession, and concealment thereof knowing it was ransom money, and his payment of $1,000 thereof to James C. Mathers, his associate counsel in Oklahoma. One overt act dealt with Mathers, who was acquitted.

The evidence conclusively proved a conspiracy to kidnap Urschel and hold him for ransom, to conceal the ransom money and to exchange it for good money or other things of value. The evidence conclusively proved many overt acts in pursuance of the conspiracy, including eight after Laska was alleged to have entered the conspiracy. It is not disputed that a criminal conspiracy was formed and had been partially accomplished when the indictment was returned.

There can be, then, but one issue: Did Laska, knowing of the conspiracy, enter it? It is not necessary that he know all the members or the part each played or was to play. Marcante v. United States (C.C.A.10) 49 F.(2d) 156. The gist of the offense is the conspiracy; while an overt act by some member must be alleged and proven before the conspiracy becomes a criminal offense, it need not appear that each conspirator performed an overt act, or that the overt act be criminal. United States v. Rabinowich, 238 U.S. 78, 86, 35 S.Ct. 682, 59 L.Ed. 1211. In Bannon v. United States, 156 U.S. 464, 468, 469, 15 S.Ct. 467, 469, 39 L.Ed. 494, the Supreme Court said:

"The gist of the offense is still the unlawful combination, which must be proven against all the members of the conspiracy, each one of whom is then held responsible for the acts of all. * * * To require an overt act to be proven against every member of the conspiracy, or a distinct act connecting him with the combination to be alleged, would not only be an innovation upon established principles, but would render most prosecutions for the offense nugatory. It is never necessary to set forth matters of evidence in an indictment."

And in Chew v. United States (C.C. A.8) 9 F.(2d) 348, 353, Judge Booth said:

"If the defendants were all in the continuing conspiracy, it is immaterial by which one of them the overt acts were committed. The overt act of one is the act of all."

No bill of particulars was asked for. No surprise is claimed. If the evidence established that Laska was a member of the conspiracy charged and proven, it is no defense that each act of his in furtherance of the conspiracy was not set out in the indictment.

The Trial. There was no conflict at the trial over the facts concerning the abduction of Urschel and the collection of the ransom. Likewise it is undisputed that Bates came to Denver on August 10 with $90,000 of the ransom money in a locked brown grip or bag. He went to an apartment where his wife and stepson, Edward Feldman, lived. On August 12 he was arrested but specific charges were not immediately filed. He had on his person $660 of the ransom money. He sent a note from the jail to his wife telling her there was money in the brown grip and for her to flee. She and her son immediately left taking with them the ransom money. He retained Laska as his counsel on August 13th or 14th. Bates was then suspected of bank robbery and other offenses, but not of the Urschel kidnaping. Bates told Laska how to get in touch with his wife or stepson who would provide him with money for his fee and expenses. Laska did contact young Feldman. His first conference with Feldman occurred on August 16th or 17th. Laska had learned from the police officers and the newspapers on the afternoon of August 15 that Bates was charged with the Urschel kidnaping and that ransom money had been found on his person. Laska defended Bates upon his trial in September. It is likewise undisputed that Mrs. Bates and Feldman buried the ransom money in various places at intervals during the year ensuing.

What occurred between Laska and Feldman and Mrs. Bates at various conferences is in sharp dispute.

Feldman testified that on his first meeting with Laska, Laska said he knew about the money which Bates left in the apartment, and asked who had it; Feldman said it was at Cheyenne; Laska asked if it was buried and when told it was not, said, "Lord, kid, you should have buried the money. * * * Good Lord, why didn't your mother bury that money? Don't you read the papers? Here is a paper right here." Laska showed him a paper dated August 15, carrying a picture of Bates, an eight-column headline charging him with the Urschel kidnaping, and a two-column head that ransom money had been found on his person. Laska told him the money was "plenty hot" and gave him explicit instructions as to how to bury it. Laska told them to change their names and suggested that he use the name Axel C. Johnson and his mother Ruth Johnson. Laska asked for and was given Feldman's driver's licenses and identification card so that his use of an assumed name would not be detected in case of arrest; Laska told him to get rid of his dog to escape detection. Laska asked for a fee of $10,000, and inquired whether Mrs. Bates had any "good money"; when told she had not, Laska said the case was worth $50,000, and he needed $10,000 right away. Feldman went back to Cheyenne, got $10,000 (or as Laska later claimed, $8,000) of the ransom money, came back to Denver, went to Laska's home at night, gave the name of Axel C. Johnson and was admitted. Laska took him to his bedroom and there received the money in twenty-dollar bills which came from the Bates grip. Feldman then testified as to Laska's instructions as to how to change the ransom bills into unmarked money, as follows:

"He said he advised mother and I to leave Cheyenne because it was getting pretty hot around, and to leave for some big city in the East. He suggested Chicago would be our best bet, and to disguise ourselves, dress as an ordinary class of people, and to take the day coach, ride a day coach instead of a Pullman on the train, and he says, `When you get to Chicago you can change this hot money. You can change it at department stores, drug stores or clothing stores. Go to the busy vicinity of the town and change it; not to have more than one or two bills on you at a time.' He says, `After you get some of this changed, to put some of this ransom money in a safety deposit box, rent a safety deposit box and put it in.' He says, `No one would look in there.'"

Feldman and his mother, following Laska's instructions, changed their names and went to Chicago. Feldman returned to Denver about the last of August, when Laska told him he needed $2,000 in "changed hot money"; to get the hot money changed and bring it to Oklahoma City by September 10th or 11th; that he had to pay a local attorney there. Feldman said his mother wanted to give herself up, but Laska vigorously protested. Feldman went to Oklahoma City on September 16th and met Laska in a hotel room. He told Laska he had $2,000, but it was hot money. Laska told him to go in the bathroom and put it under the rug, which he did.

On November 16th or 17th Feldman and his mother came to Denver and saw Laska at his home at night. Mrs. Bates again wanted to give herself up, but Laska objected. Laska took title to her Buick car and...