United States v. Berger

• Decision Date: 05 November 1934
• Docket Number: No. 137.,137.
• Citation: 73 F.2d 278
• Parties: UNITED STATES v. BERGER.
• Court: U.S. Court of Appeals — Second Circuit

73 F.2d 278 (1934)

UNITED STATES v. BERGER.^*

No. 137.

Circuit Court of Appeals, Second Circuit.

November 5, 1934.

Sydney Rosenthal, of Long Island City, N. Y., for appellant.

Leo J. Hickey, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

Berger was indicted with Jones, Katz, Rice and others for conspiring to utter counterfeit bills. A jury might have found the following facts from the evidence: Rice was an engraver, and had made the counterfeit plate from which the bills were printed; apparently he also printed them. He and Katz arranged that they should use them to buy rings which the owners advertised for sale, disposing of the rings for what they could get. In pursuance of this plan Rice gave Katz some of the money which Katz passed off upon various ring owners. Berger, a real estate agent, had heard from some woman that Katz had counterfeit money to dispose of, and went to him to learn the truth of the report. Katz told him that he had and showed him a bill; but Berger did not offer to take any, being fearful of detection; instead, he introduced Jones to Katz. At a meeting between the three at the woman's apartment, Katz gave Berger four bills which Berger at once turned over to Jones. These and others Jones passed to tradesmen. All this depended chiefly upon the testimony of Katz who turned state's evidence against the rest; who had been several times convicted of other crimes; and who was a thoroughly unreliable person. However, he was corroborated as to Berger by some admissions made after Berger's arrest, and to some extent by witnesses who had seen Berger in Jones' company before Jones passed the bills. The passing was amply proved against Jones and Rice, but each denied any connection with Katz or Berger. Thus the case against Berger was not strong, though there was enough if the jury believed the testimony. We have frequently said that we would not ordinarily intervene in an issue depending on the credibility of witnesses and there is no reason to make an exception here. We should not have felt called upon to write any opinion were it not for the following point of law: As we have said, the original arrangement was between Katz and Rice, and contemplated a limited use of the bills; that is, to buy rings. When Katz engaged Jones through the intervention of Berger, it was to pass the bills to tradesmen, and Rice knew nothing of it. Nor did Berger or Jones know that Katz was associated with Rice; though Jones was acquainted with Rice. So far as they knew, Katz might have got the bills from any one. Thus the evidence really showed two separate conspiracies; one of Katz and Rice, the other of Katz, Berger and Jones, with no connection except that Katz was a common member to both schemes, and that both concerned the utterance of the same bills. The question is whether it was error not to dismiss the case for a material variance, as Berger's attorney moved at the close of the evidence.

If an indictment lays a conspiracy against three and the evidence shows that only two are concerned, it is a variance; the conspiracy proved, whether viewed as an agreement, or more vaguely as an association, is different from that charged. But it is not regarded as a material variance, and the conviction will stand. Breese v. U. S., 203 F. 824 (C. C. A. 4); Hardy v. U. S., 256 F. 284 (C. C. C. A. 5); Bryant v. U. S., 257 F. 378 (C. C. A. 5); Harrison v. U. S., 7 F.(2d) 259 (C. C. A. 2); McDonald v. U. S., 9 F.(2d) 506 (C. C. A. 8); Linde v. U. S., 13 F.(2d) 59 (C. C. A. 8); Meyers v. U. S., 36 F.(2d) 859 (C. C. A. 3). To charge three with a single conspiracy and prove two conspiracies to which only one is a common member, is logically no worse, and may not in practice involve any greater hardship, though in effect two separate crimes are tried at one time. But it must be owned that the view in four circuits appears to be that in such a situation all the accused must be acquitted. Terry v. U. S., 7 F.(2d) 28 (C. C. A. 9); Wyatt v. U. S., 23 F.(2d) 791 (C. C. A. 3); U. S. v. Wills, 36 F.(2d) 855 (C. C. A. 3); Tinsley v. U. S., 43 F.(2d) 890 (C. C. A. 8); Marcante v. U. S., 49 F.(2d) 156 (C. C. A. 10). Dowdy v. U. S., 46 F.(2d) 417 (C. C. A. 4), reversed as to other defendants in Funk v. U. S., 290 U. S. 371, 54 S. Ct. 212, 78 L. Ed. 369, 93 A. L. R. 1136, does not involve the doctrine; when the conspiracy as laid was broken up into two conspiracies, it appeared that one of these was outside the jurisdiction of the trial court, which necessarily infected any conviction upon that record. In our own decision in U. S. v. Siebricht, 59 F.(2d) 976, the indictment had laid a general conspiracy, perhaps to avoid the statute of limitations; but the evidence proved two entirely disconnected conspiracies, one of which was outlawed. Obviously the conviction could not stand.

The last two decisions are indeed good instances of how on occasion the variance may prove material, but the others do not convince us that it always must be, or that in general it is, a defect outside the...