Lucking v. United States

• Decision Date: 11 November 1926
• Docket Number: 3726,No. 3719-3722,3748.,3719-3722
• Citation: 14 F.2d 881
• Parties: LUCKING et al. v. UNITED STATES, and five other cases.
• Court: U.S. Court of Appeals — Seventh Circuit

14 F.2d 881 (1926)

LUCKING et al. v. UNITED STATES, and five other cases.

Nos. 3719-3722, 3726, 3748.

Circuit Court of Appeals, Seventh Circuit.

September 27, 1926.

Rehearing Denied November 11, 1926.

Thomas L. Pogue, of Cincinnati, Ohio, and Levi Cooke, of Washington, D. C., for plaintiffs in error Lucking and Landon.

T. J. Rowe and Charles A. Houts, both of St. Louis, Mo., Levi Cooke, of Washington, D. C., and John T. Murray, of Chicago, Ill., for plaintiffs in error O'Hare and others.

T. J. Rowe and William Baer, both of St. Louis, Mo., and Levi Cooke, of Washington, D. C., for plaintiff in error Whalen.

Charles A. Houts, of St. Louis, Mo., and Levi Cooke, of Washington, D. C., for plaintiffs in error Goldstein and Stratton.

Albert Ward, of Indianapolis, Ind., for the United States.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

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

The indictment is sharply challenged by all plaintiffs in error on the ground that no conspiracy is charged in the district of Indiana, and no venue is laid in Indiana, but only in Missouri. That part of the indictment which describes the conspiracy charges its formation and existence in Missouri, and while it is alleged that one of the objects of the conspiracy was to transport the whisky into or through Indiana, there is no direct allegation in that part of the indictment charging the existence of the conspiracy in that district. The government contends that the allegations of the overt acts which are charged to have been done in furtherance of and to effect the object of the conspiracy sufficiently charge the carrying of the conspiracy into Indiana and its existence there, and that such allegation of the venue in Indiana is sufficient under the authority of Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90; Hyde 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.

Counsel for plaintiffs in error contend, not that a conspiracy formed elsewhere is not indictable in a district wherein one or more of the conspirators does an act in its execution, but that the indictment in question does not charge the conspiracy to have had existence in Indiana, in manner as they contend was charged in the cases cited. It seems that the indictment in the Hyde Cases did directly charge the bringing of the conspiracy from California, where it was formed, to the District of Columbia, and its existence there, where certain papers to effect the conspiracy had been filed, and wherein the indictment was found. But in Brown v. Elliott, supra, the indictment is in its essential features too nearly like this one to admit of distinction. The conspiracy there was alleged to have been formed at a place unknown, which does not in principle distinguish it from the allegation of a place outside of the district where the indictment is found. It alleged that one of the objects of the conspiracy was to deposit letters in the Omaha post office in execution of an alleged scheme to defraud, just as here it is alleged that one of the purposes of the conspiracy was unlawfully to transport liquor into or through Indiana. There, as here, the scheme was, in differing language, alleged to be continuous, and the allegation of the overt act (the depositing mail in Omaha) was held to bring the conspiracy into that district, and indeed that the effective date from which the statute of limitations would run upon the indictment for the conspiracy there was, not that of its formation, but of the commission of the overt act there, whereby the statutory crime of conspiracy became complete.

The usual form for indictments under section 5440, Rev. St., now Cr. Code, § 37 (Comp. St. § 10201), is in two divisions, the first charging and describing the so-called conspiracy, and the other setting forth what are generally called "overt acts." The statute does not prescribe any form, and indeed does not employ the term "overt acts." The cases cited seeming authoritatively to have established there is jurisdiction in a district wherein a conspirator commits an overt act to effect a conspiracy elsewhere formed, it would seem to follow that allegation anywhere in the indictment of the commission of overt acts within the district where the indictment is found, would be sufficient. Indeed, in this situation the allegation of the overt acts serves two distinct functions: (a) Statement of such acts as required by the statute in order to charge the offense which the statute denounces; and (b) laying the venue in such district, and giving the court thereof jurisdiction, agreeably to the applicable decisions. But, when this is once stated in the indictment, it is there for all purposes, and need not be repeated. In Grayson v. United States, 272 F. 553 (6 C. C. A.) it would appear from the opinion that the indictment there, considered was quite similar in form and principle, and upon review of the authorities was held good.

Concluding as we do that the indictment is sufficient, the contention of variance between the indictment and the proof, predicated largely on the assumption that the proof did not show the conspiracy in Indiana, or a conspiracy to transport whisky into Indiana, likewise fails.

Of the other errors assigned, we deem worthy of discussion only such as assert the absence of any evidence in the record to sustain the verdict and judgments against the several plaintiffs in error.

Harry F. Stratton.

Remus testified that the Jack Daniel whisky which Stratton transported through Indiana Stratton purchased outright at St. Louis — 350 gallons at $30 per gallon — giving his check for $10,500. It is insisted that his act of actually buying the liquor with intent to transport it, and transporting it accordingly, does not establish the crime charged, and that, though he may be guilty of the substantive offense of transporting the whisky, he is not shown to be guilty under section 5440, Rev. Stat. U. S. If this were all of Stratton's participation, it might be questionable whether the evidence showed his participation in the conspiracy. It seems from the testimony of several witnesses that, apart from this alleged purchase by him, he was a sort of factotum for Remus; that on some occasions at St. Louis he assisted men who were to drive cars for transporting liquor in finding the loaded cars; and that at Cincinnati, where much of the whisky was taken, he was well informed of its location, and had participation in its removal for disposition by others. Remus' wife, who from the evidence appears to have had actual knowledge of and participation in the conspiracy, was with him on one of the automobile trips through Indiana. This in our judgment affords such evidence of guilt as to make the verdict of the jury and judgment thereon binding upon us.

Improper remarks of the district attorney respecting Stratton are urged upon us, but we are not at liberty to consider them, inasmuch as such are not disclosed by the bill of exceptions herein, but only raised by assignments of error and briefs of counsel.

William Lucking and George R. Landon.

From the government's evidence it appears that they are men of means living in Cincinnati, who had been and still were interested with Remus in the acquirement and disposition of other distilling properties, particularly one known as Hill & Hill, all of which, so far as the evidence discloses, were legitimate and conducted in a lawful manner. The Hill & Hill deal involved several hundred thousand dollars, and settlement between them and Remus had not yet been made. Remus wanted from them $50,000 to help close the Jack Daniel deal, which involved in all about $130,000. At Cincinnati he met Lucking, who was about to leave for the East, and asked him for the amount, saying he was buying a distillery at St. Louis, and said, if there were additional charge for the money, a bonus would be paid. He later saw Garver, a Cincinnati lawyer, who transacted business for them, as well as for Remus, and Garver arranged with Lucking and Landon for advancing the money to Remus. One of them gave him a personal check for $20,000, and they signed with Garver notes for $30,000, all of which was cashed at a Cincinnati bank, and the money taken by Garver to St. Louis, where the amount, less a bank discount on the notes, was paid over by Garver to help Remus close the Jack Daniel deal. It was testified that nothing was communicated to Lucking and Landon about the nature of the proposed transaction, beyond what has been stated; that neither of them acquired or had any interest in the deal beyond compensation they might receive for the immediate advancement of the money, and the record does not show either of them to have been at...