Taylor v. United States

• Decision Date: 06 November 1924
• Docket Number: No. 3314.,3314.
• Citation: 2 F.2d 444
• Parties: TAYLOR v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

2 F.2d 444 (1924)

TAYLOR v. UNITED STATES.^*

No. 3314.

Circuit Court of Appeals, Seventh Circuit.

September 19, 1924.

Rehearing Denied November 6, 1924.

Thomas Stevenson, of Cleveland, Ohio, for plaintiffs in error.

Wm. B. Schroder, of Rock Island, Ill., for the United States.

Before ALSCHULER, EVAN A. EVANS, and PAGE, Circuit Judges.

EVAN A. EVANS, Circuit Judge (after stating the facts as above).

The indictment is attacked because (a) indefinite and uncertain; and (b) of its failure under any construction of the language to charge defendants with the commission of an offense. Its asserted insufficiency in the latter respect (so far as the first four counts of the indictment are concerned) would present a more serious question, were it not for certain decisions, which, strangely enough, escaped the attention of counsel for both sides when they were investigating this very important and equally interesting question.

These four counts charged, or at least attempted to charge, defendants with the violation of the conspiracy statute (section 37 of the Criminal Code Comp. St. § 10201). This section provides: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose," etc.

Plaintiffs in error assert that each of the first four counts of the indictment fail to charge defendants with conspiring "to commit any offense against the United States." In other words, for the purpose of the argument, defendants admit that they may have entered into an agreement or conspiracy to commit certain acts, but deny the object of the conspiracy, as set forth in these counts, constitutes "an offense against the United States." This issue presents the real and sharply controverted legal question in this as well as in the District Court.

The District Judge, upon a motion in arrest of judgment, filed an opinion wherein he stated: "The question raised by this motion is whether or not the violation of an injunction issued by a court of the United States is an offense against the United States. This question must be answered in the affirmative." Moreover, in charging the jury, the court said: "It is also the law that it is an offense against the United States for one to violate an injunction issued by a court of the United States."

The briefs of counsel are largely devoted to discussing the question under the caption, "Is a criminal contempt an offense against the United States"? Contending that criminal statutes must be strictly construed (United States v. Gradwell, 243 U. S. 476, 37 S. Ct. 407, 61 L. Ed. 857), and that there are no crimes against the United States except those defined by statute, counsel for plaintiffs in error insist that a criminal contempt is not a crime against the United States, and therefore not "an offense against the United States," within the meaning of this criminal statute.

The answer to this argument is found in the opinions in United States v. Hutto, 256 U. S. 524, 41 S. Ct. 541, 65 L. Ed. 1073, and Biskind v. United States (C. C. A.) 281 F. 47, 28 A. L. R. 1377. In United States v. Hutto, the court, in discussing this question, says:

"Nor can we sustain the other ground upon which it is contended the demurrers were well taken. Section 37, Criminal Code, is violated by a conspiracy `to commit any offense against the United States' accompanied or followed by an overt act done to effect the object of the conspiracy. It does not in terms require that the contemplated offense shall of itself be a criminal offense; nor does the nature of the subject-matter require this construction. A combination of two or more persons by concerted action to accomplish a purpose either criminal or otherwise unlawful comes within the accepted definition of conspiracy. Pettibone v. United States, 148 U. S. 197, 203. The distinction between a conspiracy and the contemplated offense that forms its object has often been pointed out. United States v. Rabinowich, 238 U. S. 78, 85, 86, and cases cited. And we deem it clear that a conspiracy to commit any offense which by act of Congress is prohibited in the interest of the public policy of the United States, although not of itself made punishable by criminal prosecution but only by suit for penalty, is a conspiracy to commit an `offense against the United States' within the meaning of section 37, Criminal Code, and, provided there be the necessary overt act or acts, is punishable under the terms of that section."

Applying this language of the Supreme Court, the court in Biskind v. United States, supra, said:

"True, section 268 is contained in the Judicial Code, and not in the Criminal Code. But the lack of specific provision for criminal prosecution therefor is not important here, where the prosecution is for conspiracy, not for the contempt; for `a conspiracy to commit any offense which by act of Congress is prohibited in the interest of the public policy of the United States, although not of itself made punishable by criminal prosecution * * * is a conspiracy to commit an "offense against the United States" within the meaning of section 37' of the Criminal Code. United States v. Hutto, 256 U. S. 524, 528, 529. * * * Whether or not a contempt of the authority of a federal court in a civil case would be subject to criminal prosecution, there is no room for doubt that a conspiracy, such as here shown, to effect a contemptuous disobedience or resistance to the lawful process of a federal court in a criminal cause, is a conspiracy to commit an offense against the United States."

It is hardly necessary to consider the urge that a violation of the injunctional order does not constitute an obstruction or an impediment to the due administration of justice, as that term is used in section 135 of the Criminal Code (Comp. St. § 10305). The case of Pettibone v. United States, 148 U. S. 197, 13 S. Ct. 542, 37 L. Ed. 419, was one wherein the defendants were charged with a conspiracy to obstruct justice by violating an injunctional order. The following, taken from the opinion, disposes of the question:

"The obstruction of the due administration of justice in any court of the United States, corruptly or by threats of force, is indeed made criminal, but such obstruction can...