United States v. Benson

• Decision Date: 08 November 1895
• Docket Number: 171.
• Citation: 70 F. 591
• Parties: UNITED STATES v. BENSON.
• Court: U.S. Court of Appeals — Ninth Circuit

70 F. 591

UNITED STATES v. BENSON.

No. 171.

United States Court of Appeals, Ninth Circuit.

November 8, 1895

The indictment in this case is founded upon section 5440 of the Revised Statutes, as amended May 17, 1879 (21 Stat. 4; 1 Supp.Rev.St.p. 264), which reads as follows: '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, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court." The indictment contains three counts, each of which is of great length. The first count, in appropriate language, charges that John A. Benson and M. F. Reilly on a certain day 'did unlawfully corruptly, and wickedly conspire, combine, and agree together, and with divers other persons to the said grand jurors unknown, to defraud the United States of a large sum of money, to wit, the sum of twenty-five hundred (dollars) lawful money of the United States, by the means and in the manner following That is to say, that they, * * * well knowing that a certain contract had * * * been procured, secured, and entered into by and between John W. Fitzpatrick, then and there being a United States deputy surveyor in and for the state of California, on the one part, and W. H. Brown, then and there being the United States surveyor general in and for the state of California, on the other part, whereby the said John W Fitzpatrick, in his capacity aforesaid, in substance and effect, undertook, agreed, and promised. ' Then follows a detailed statement of the terms and conditions of the contract to survey certain public lands, which are specifically described, and avers that Benson and Reilly had full knowledge thereof; that Fitzpatrick agreed that in his official capacity he would faithfully survey said lands, and establish and mark all the lines and corners thereof, in strict conformity with the laws of the United States, and complete the same, and return true field notes thereof to the surveyor general, on or before the 30th of June, 1885; that compensation was to be paid therefor at specified rates; that no accounts were to be paid therefor unless properly certified by the surveyor general, nor until approved plats and certified transcripts of the field notes should be filed in the general land office; that no payments were to be made for surveys not executed by said Fitzpatrick in his own proper person; that said contract was on December 17, 1884, approved by the commissioner of the general land office; that Fitzpatrick was officially notified thereof; that in pursuance of the aforesaid conspiracy, combination, confederacy, and agreement among them, and with full knowledge of all the facts, the defendant Benson, for the purpose and with the intent to effect the object of 'the aforesaid conspiracy, did cause and procure a fraudulent, fictitious, and pretended survey of the lands described in the aforesaid contract"; that defendant Benson, well knowing that said survey had not been made in strict conformity with the law of the United States, or at all, and that the survey made by him was fictitious and pretended, for the purpose 'and with the intent of imposing upon and deceiving' the surveyor general, and for the further purpose of procuring the surveyor general 'to properly certify to the accounts and amount accruing to defendant under and by the terms of the aforesaid contract, and for the further purpose of securing approved plats and certified transcripts of the field notes of said pretended survey to be filed in the general land office, and with the intent and for the purpose of securing the payment from the United States of the contract price for said survey,' and with the intent to corruptly, wickedly, and unlawfully defraud the United States out of the sum of $2,500, the said Benson on May 6, 1885, did cause and procure false, fictitious, and fraudulent field notes of the aforesaid false, fictitious, and pretended survey to be made of the lands specifically described, the same being public lands of the United States. The second count is substantially the same as the first, except that in stating the overt acts committed to effect the object of the conspiracy it avers that Benson on May 6, 1885, false pretending that the surveys had been properly made by Fitzpatrick according to the contract, with full knowledge to the contrary, and with the intent to impose upon and deceive the surveyor general, and for the purpose of fraudulently obtaining his official approval of said pretended survey, and procure the surveyor general to certify the accounts for said survey and of the amount due to Fitzpatrick under the contract, and the approval of the plats and certified transcripts of the field notes to be filed in the general land office, and for the purpose of defrauding the United States by securing the payment to him from the United States of the contract price for said survey, did make and cause to be made false, fictitious, and fraudulent field notes, etc., and that the surveyor general was by the said unlawful conspiracy of Benson and Reilly and the fraudulent acts of Benson 'deceived into approving the said pretended survey and the said fictitious and fraudulent field notes, and into stating and certifying the amounts accrued to and earned by the said John W. Fitzpatrick under and by the terms of the aforesaid contract. ' The third count is substantially the same as the first. The circuit court held this indictment to be wholly insufficient to charge Benson with any crime punishable by the laws of the United States, and discharged him upon habeas corpus. In re Benson, 58 F. 962. From this order the United States takes this appeal.

F. S. Stratton, Special Counsel, and Charles A. Garter, U.S. Atty., for the United States.

Reddy, Campbell & Metson, for appellee.

Before GILBERT, Circuit Judge, and HAWLEY, District Judge.

HAWLEY District Judge (after stating the facts).

Is the indictment in this case sufficient in law to constitute a crime punishable by the laws of the United States? The form of the indictment is certainly open to criticism. It is not as clear, concise, and direct in its averments as it might have been made. It is, as was said by the supreme court with reference to the form of an indictment in another of the Benson Cases, in U.S. v. Perrin, 131 U.S. 57, 9 Sup.Ct. 681, 'so diffuse and obscure, presenting in no point a distinct issue of law on which the guilt of the defendants must rest, that it is impossible to decide any of the points without the most laborious wandering through the whole of the three counts of the indictment, and passing upon the whole question whether, under all the circumstances set out, the parties are liable to the indictment'; and for that reason the court declined to answer certain questions touching its sufficiency. Notwithstanding the labor involved, it becomes our duty, as best we can, to wander through the whole indictment and solve the troublesome question. The case comes to this court with the knowledge that there has been a wide divergence of opinion among the nisi prius judges who have, in one form or another, been called upon to decide the identical question here presented. A demurrer to the indictment was overruled by one without any opinion being filed, and his reasons therefor cannot be ascertained. Appellee was subsequently discharged by another on the sole ground of the insufficiency of the indictment, in a forcible and strong opinion, wherein his views are clearly and ably stated. In re Benson, 58 F. 962.

It is argued by appellee that the indictment is wholly insufficient in this, among other things; that it does not allege that the defendants named therein, or either of them, ever agreed to make any use of the contract entered into by Fitzpatrick, or of the accounts for the contract price of the survey, for the purpose of defrauding the United States; that neither Fitzpatrick nor the surveyor general is in any manner connected with the conspiracy; that there was never any assignment of the contract to Benson; that Benson is not shown to have had any interest therein, or any such connection therewith as to enable him to commit any fraud against the government of the United States; that no such fraud as is alleged could, by any of the acts of the conspirators, have been consummated either by the defendants Fitzpatrick, or any other person or persons; that Benson could not have obtained any money on the vouchers given by the surveyor general, because the same were not payable to him; that no money could be paid to Fitzpatrick upon the accounts without his being a party to the conspiracy, which is not alleged; that the facts alleged are not sufficient to advise Benson of what particular offense he is called upon to meet. Is it necessary to allege that the defendants named in the indictment, or either of them, would profit by the conspiracy, or to state the means by which the conspiracy was to be successfully carried out, or that any fraud was actually consummated, or that it should appear upon the face of the indictment in what particular manner the acts alleged to have been performed in pursuance of the unlawful agreement would tend to accomplish the object of the conspiracy? What facts are necessary to be alleged in the indictment in order to constitute an offense punishable under the provisions of section 5440? It will be observed by reference to the language of this section that it embraces two separate and distinct offenses, viz.: First, a conspiracy to commit an...