De Mayo v. United States

• Decision Date: 09 April 1929
• Docket Number: No. 8315,8316.,8315
• Citation: 32 F.2d 472
• Parties: DE MAYO v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

32 F.2d 472 (1929)

DE MAYO v. UNITED STATES (two cases).

Nos. 8315, 8316.

Circuit Court of Appeals, Eighth Circuit.

April 9, 1929.

Edward P. Marshall, of Tulsa, Okl. (Walter W. Calvin, of Kansas City, Mo., and Bird McGuire and Felix A. Bodovitz, both of Tulsa, Okl., on the brief), for appellant and plaintiff in error.

Harry Seaton, Asst. U. S. Atty., and John M. Goldesberry, U. S. Atty., both of Tulsa, Okl.

Before LEWIS and VAN VALKENBURGH, Circuit Judges, and SYMES, District Judge.

VAN VALKENBURGH, Circuit Judge.

These cases come to us both on writ of error and on appeal. Appeal is the proper procedure under existing law, and the writ of error is dismissed.

This appeal is from a conviction in the District Court for the Northern District of Oklahoma upon an indictment containing four counts; the first, for conspiracy, and the other three for the substantive offenses of introducing intoxicating liquor unlawfully from without the state of Oklahoma into that part of the state which was formerly Indian Territory. The destination was Tulsa. The conspiracy is charged against one Jack Clarkson, appellant Frank De Mayo, one Abe Schneider, one Joe Burencio, one Joe Panittio, and one Joseph Maniscalie. It is alleged that on or about the 11th day of April, 1928, they did unlawfully, knowingly, feloniously, etc., conspire and agree together and with one L. L. Kelsey to commit an offense against the United States, to wit, to introduce, carry into, and cause to be carried into the city of Tulsa, in the state and Northern Judicial District of Oklahoma — the same having been within the limits of the Indian Territory, and a part thereof prior to the admission of the state of Oklahoma into the union — from Kansas City, Mo., a point without the state of Oklahoma, certain intoxicating liquor, to wit, alcohol and whisky. The first overt act charges that the said Jack Clarkson did, on the date in question, in the city of Tulsa, deliver to L. L. Kelsey a certain order to the appellant Frank De Mayo, which order stated in substance "that the bearer was O. K. and that the defendant De Mayo should give the bearer anything that he wanted." It was further stated that this order was carried by Kelsey to Kansas City and delivered to De Mayo on or about the 12th day of April, 1928; that as a result thereof grain alcohol was caused to be carried into and introduced into the city of Tulsa. The other three overt acts charge the defendants with causing liquor to be carried into the Indian Territory on the divers dates mentioned therein through and by the said Kelsey. The three substantive counts are based upon the same transactions described in these last three overt acts. It developed in the testimony that Kelsey, together with one Kennedy, was acting as the representative and agent of the prohibition officers of the United States; that he was in effect such an officer and did what he did for the purpose of detecting the conspirators and of bringing them to trial and conviction. It is urged, therefore, by appellant that the indictment, if not in fact invalid because of the incorporation of Kelsey as a coconspirator, failed of support by the evidence in that a government officer, who is not in fact a coconspirator, but who acts simply for the purpose of detecting crime, cannot bind his codefendants; that his acts are not imputable to them because there is not community of purpose. It is further insisted that, though there may have been a previous understanding and confederation between the other defendants, the joining of Kelsey created a new conspiracy, and that this conspiracy between De Mayo and the others in Kansas City, and Clarkson in Tulsa, was not consummated in any view until after the giving of the letter by Clarkson to Kelsey for De Mayo. It is further urged that the last three overt acts cannot be sustained for the reason that they were performed by the government officer, Kelsey, and cannot, therefore, be imputed to the other alleged conspirators.

As to the first of these propositions, it seems clear that if, in addition to the parties first named, Kelsey, though not a government officer, had been included as a defendant, and it had developed that Kelsey was not a party to the conspiracy, it could not be claimed that the conspiracy charged would fail on that account as to the others. We take it that Kelsey's incompetency to become a conspirator under the facts existing effects a result no different from that which would follow if he were otherwise found not to be a party to the unlawful agreement. It sufficiently appears from the testimony that De Mayo and his confederates had been, and were, engaged in the business of introducing intoxicating liquor into the Indian Territory. This appears from testimony as to the statements of Clarkson and De Mayo themselves, of their familiarity with the routes to be taken, the statement of De Mayo that Clarkson was operating on a commission of 50¢ a gallon, and other evidence, all of which established the fact for the consideration of the jury that such a conspiracy did exist prior to the entrance of Kelsey upon the scene. Of course, the date laid in the indictment would not rigidly govern. It follows, we think, that the indictment presents a valid charge consisting of the conspiracy and the first overt act.

As to the three remaining overt acts, we are of opinion that government officers should not so far participate as themselves to perform unaided by any of the conspirators the crucial act of introducing the liquor into the forbidden territory. They may properly afford opportunity to those suspected of crime to commit the original offense. They may be participants to a certain extent, but they, themselves, may not unaided, as in this case, do the very overt act which is essential to the consummation of the offense charged. In conspiracy cases, no matter what evil may be planned, the crime has not been committed until an act has been done in furtherance thereof. There is a locus pœnitentiæ lying between the thought and the deed. The accused may not be deprived of that period of immunity by the act of a government officer who is not in law a coconspirator. The record discloses, in abundance, overt acts sufficient to sustain this charge if brought in the Western District of Missouri, but the venue laid was in the ...