Reno v. United States

• Decision Date: 20 June 1963
• Docket Number: No. 19673.,19673.
• Citation: 317 F.2d 499
• Parties: William Alfred RENO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

317 F.2d 499 (1963)

William Alfred RENO, Appellant, v.UNITED STATES of America, Appellee.

No. 19673.

United States Court of Appeals Fifth Circuit.

May 17, 1963.

Rehearing Denied June 20, 1963.

Richard R. Booth, Miami, Fla., for appellant.

Alfred E. Sapp, Asst. U. S. Atty., Miami, Fla., Edith House, U. S. Atty. Southern District of Florida, for appellee.

Before RIVES and WISDOM, Circuit Judges, and BOOTLE, District Judge.

RIVES, Circuit Judge.

This appeal is from a judgment finding the defendant guilty "of the offense of knowingly and willfully conspiring to harbour and conceal an alien not lawfully entitled to enter or reside within the United States, well knowing and having reasonable grounds to believe that the entry of said alien into the United States occurred less than three years prior to May 4, 1961; in violation of Title 18, United States Code, Section 371, as charged in the Indictment."

The only questions presented concern the sufficiency of the indictment, as stated in the appellant's brief:

"1.Should the trial judge have dismissed the indictment on February 15, 1962, upon the motion of the appellant made February 13, 1962?

"2.Does the indictment charge an offense against the United States?"

The indictment contains a single count which commences as follows:

"The Grand Jury charges:

"That on or about May 4, 1961, and continuing to on or about the date of this Indictment, in Dade County, in the Southern District of Florida,

WILLIAM ALFRED RENOROBERT EUGENE MOOREPHILIP BELLA and MARIE BELLA RUTIGLIANO,

defendants herein, did willfully, feloniously and knowingly conspire, combine, confederate and agree together and with ANGELO NICOSIA, co-conspirator but not defendant named herein, and with divers other persons to the Grand Jury unknown, to commit an offense against the United States, to-wit: to violate Title 8, United States Code, Section 1324, that is to say, they did knowingly and willfully conceal, harbor and shield from detection, and did knowingly and willfully attempt to conceal, harbor and shield from detection, in Dade County within the Southern District of Florida, including various buildings and means of transportation therein, EMANUELE NICOSIA, an alien not lawfully entitled to enter or reside within the United States, well knowing and having reasonable grounds to believe that the entry of the said EMANUELE NICOSIA into the United States occurred less than three years prior thereto and they did transport and move, and did attempt to transport and move within the United States by means of transportation or otherwise, the said EMANUELE NICOSIA; in violation of Title 18, United States Code, Section 371.

"That in furtherance of the aforesaid conspiracy and for the purpose and object of effecting the said conspiracy, the following overt acts were committed: * * *."

There follow seven separately numbered charges of overt acts.

Upon arraignment on November 9, 1961, the defendant entered a plea of not guilty.The attorney then representing the defendant was permitted to withdraw from the case on February 9, 1962.On February 13, 1962, other counsel appeared and moved to dismiss the indictment on the following grounds:

"1.Indictment does not charge an offense against the United States.

"2.Indictment is duplicitous, that is to say, it charges three separate crimes in the same count.

"3.Indictment is vague and ambiguous."

The trial commenced two days later, at which time the court denied the motion to dismiss after the following colloquy:

"MR. BOOTH (Attorney for Defendant): * * * I have filed a motion to dismiss and I don\'t believe the indictment is good.It is duplicitous.It charges three separate crimes in the same count.

"THE COURT: Duplicity is not a fatal defect.He may have to elect, but I think it is really protected if he charges three separate crimes because he cannot reindict him on it.

"Let me look at it for a moment, Mr. Booth.

"MR. BOOTH: It is 12,334.

"MR. SAPP (Assistant U. S. Attorney): There is one count there, your Honor.We are proceeding on the conspiracy theory that might, by some stretch of the imagination, be considered to be duplicitous.But I think those acts can be regarded as the overt acts.

"THE COURT: The overt acts have nothing to do with it, Counsel.

"MR. BOOTH: Your Honor, in the body of the opening paragraph it says first that they`conspired.\'

"And then to violate Title 8, Section 1324, that is to say, `They did knowingly and willfully conceal, harbor or shield,\' et cetera.

"And then down further it says that, `They did transport and move,\' which is charging the substantive crime.Properly worded it would have said, `That is to say, to knowingly and willfully conceal —\'

"THE COURT: Yes.The language is bad.Did you write this language?

"MR. SAPP: No.

"MR. BOOTH: No, he didn\'t.

"MR. SAPP: That was before my time.I have some authority that I would be glad to submit to the Court that I think hold the indictment is good, notwithstanding it could have been more properly drawn.

"Of course, the motion here comes too late.Thirty days was allowed to file motions, and that has long since expired.

"MR. BOOTH: What was the date of the arraignment on this?

"MR. SAPP: November.

"MR. BOOTH: November.Well, the reason I filed it was because —

"THE COURT: Yes, I can see your reason.If you had filed it promptly, I would probably have dismissed it.

"MR. BOOTH: I filed it the same day I entered my appearance.

"THE COURT: Of course, my objection to it is entirely different.My objection is that the English is incorrect.

"`That they conspired to commit an offense, that is to say, they did knowingly and willfully conceal —\'

"MR. BOOTH: It makes it vague and ambiguous.

"THE COURT: Well, we understand it, but what it should have said was, `They conspired to commit an offense, to-wit, that they would knowingly and willfully —\' and so forth.

"MR. SAPP: Instead of that they actually did do it.

"THE COURT: That is right.For that reason I probably would have taken a dim view of it.But I will deny the motion at this time."

The trial was limited strictly to the conspiracy charge.The United States Attorney began his opening statement to the jury as follows:

"As the Court explained to you in the beginning, this is a conspiracy case where the Government is charging these two men, Mr. Reno and Mr. Moore, with a conspiracy to violate the Immigration Laws; that is a conspiracy to harbor and transport an alien, the alien in this case being an Italian seaman named Emanuele Nicosia, who came into this country aboard a ship, as our evidence will show, in July of 1960."

The same limitation was repeated several times in the court's charge to the jury, culminating as follows: "Now, finally keep in mind this is a case charging conspiracy as I said, an agreement between two or more persons to violate the law in the respects as the indictment charges, and there is no other charge involved — just plain conspiracy."

If it be assumed arguendo that the indictment is duplicitous, the district court was correct in observing that, "Duplicity is not a fatal defect."As said in United States v. Goodman, 5 Cir., 1960, 285 F.2d 378, 380: "This error would, however, be harmless if the United States were required to elect upon which charge it would proceed.The entire count should not be dismissed when a less drastic ruling will suffice."The trial was limited to the charge of conspiracy and any possible duplicity of the indictment was harmless.

In our opinion, however, the indictment is not duplicitous.The charge of commission of the substantive offense does not detract from the conspiracy — "* * * it is punishable as conspiracy, though the intended crime be accomplished."United States v. Rabinowich, 1915, 238 U.S. 78, 86, 35 S.Ct. 682, 684, 59 L.Ed. 1211.See alsoPinkerton v. United States, 1946, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489.As said in Heike v. United States, 1913, 227 U.S. 131, 144, 33 S.Ct. 226, 229, 57 L.Ed. 450, "At all events the liability for conspiracy is not taken away by its success — that is, by the accomplishment of the substantive offence at which the conspiracy aims."

Several cases discussing similarly worded conspiracy indictments have held that the allegation of acts which would amount to commission of the substantive offense was merely descriptive of the conspiracy.United States v. Illinois Alcohol Co., 2 Cir., 1930, 45 F.2d 145, 148;Blum v. United States, 6 Cir., 1931, 46 F.2d 850, 851;United States v. McKieghan, E.D.Mich., 1932, 58 F.2d 298, 302;United States v. J. R. Watkins Co., D.C. Minn., 1954, 120 F.Supp. 154, 157.See alsoMillard v. United States, 5 Cir., 1945, 148 F.2d 154, 155, 156;Braswell v. United States, 5 Cir., 1952, 200 F.2d 597, 599;Beauchamp v. United States, 6 Cir., 1946, 154 F.2d 413, 415.

The appellant argues also that the indictment is so vague and ambiguous as to make it impossible to determine the meaning of a verdict of guilty, as expressed in appellant's brief: "That is, by its verdict did the jury mean to say that they had found the defendant guilty of the crime of conspiracy or did the jury find him guilty of concealing or transporting an alien not duly admitted."

We do not agree.The indictment clearly charges a conspiracy alone, and was expressly limited to that charge throughout the trial and by the court's instructions to the jury.

On question 2, the basis of appellant's argument that the indictment does not charge an offense against the United States is summarized in his brief as follows:

"The appellant urges that inasmuch as the object of the alleged conspiracy was the commission of substantive crimes, to wit: concealment, harboring, shielding and transporting of an alien not entitled to enter or reside in the United States, the agreement of two or more persons is necessary for the completion of the substantive crime and no conspiracy may be charged.In short, a charge that the defendants

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