United States v. Biggs

• Decision Date: 24 December 1907
• Docket Number: 2,028.
• Citation: 157 F. 264
• Parties: UNITED STATES v. BIGGS et al.
• Court: U.S. District Court — District of Colorado

157 F. 264

UNITED STATES v. BIGGS et al.

No. 2,028.

United States District Court, D. Colorado.

December 24, 1907

The indictment in this case attempts to charge a conspiracy, and is bottomed upon Rev. St. U.S. Sec. 5440 (U.S. Comp. St. 1901, p. 3676), and the second clause thereof, to wit 'If two or more persons conspire * * * 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,' etc. The indictment charges that the defendants Biggs, Freeman, McPhee, and McGinnity 'on the twenty-fifth day of August in the year eighteen hundred and ninety-nine, and at the several times of the committing of the several overt acts hereafter in this indictment mentioned, and continuously at all times between the said twenty-fifth day of August in the year last aforesaid and the day of the presenting of this indictment, unlawfully corruptly, wickedly, and maliciously did conspire, combine confederate, and agree together, and with divers other persons to the grand jurors unknown, indirectly to obtain from the said United States for a certain corporation, to wit, the New Mexico Lumber Company, a large quantity of land to wit, eleven hundred and seventeen acres of timber lands, in excess of the quantity of such lands which the said corporation could lawfully obtain directly from the United States'; that these lands were subject to entry at the Durango land office under the laws pertaining to the sale of timber lands and under the regulations made in pursuance to law by the Commissioner of the General Land Office. It is then charged that a description of the lands is set forth in that part of the indictment which subsequently charges the commission of overt acts in procuring the execution and verification of certain documents, each entitled 'Testimony of Claimant.' It is then charged that the lands were to be obtained as aforesaid from the United States for said corporation in the following manner: 'By the said defendants soliciting and procuring the persons aforesaid (presumably those theretofore charged as unknown to the grand jurors), for hire and under agreements with them separately to that end, to pay to the receiver of the said land office, with moneys to be furnished to them by the said corporation, the price fixed by law therefor, make entries as individual entrymen at the land office aforesaid with the said receiver of tracts of such lands in quantities, respectively, not exceeding the quantities allowed by the said laws and regulations, secure patents from the said United States for the said lands to themselves as such entrymen, and make conveyances of the title to the said lands to one William Barth, an agent and trustee for the said corporation, and by the said defendants requiring the said William Barth to convey such title to the said corporation.' After setting forth eight overt acts done in furtherance of said conspiracy, the indictment then concludes: 'And so the grand jurors aforesaid, upon their oath aforesaid, do say that (the defendants, naming them) on the said twenty-fifth day of August in the year eighteen hundred and ninety-nine, and from thence hitherto and at the several times of the committing of the said several overt acts in this indictment charged (the said unlawful, corrupt, wicked, and malicious conspiracy, combination, confederation, and agreement during all the time from the said day when the same was originally entered into, to wit, the said twenty-fifth day of August in the year eighteen hundred and ninety-nine to the date of the presenting of this indictment being still continuing and in existence) in manner and form in this indictment aforesaid, unlawfully, corruptly, wickedly, and maliciously did conspire,' etc., indirectly, deceitfully, and fraudulently to obtain from the United States, for the said corporation, certain of the public lands and property of the United States in quantity greatly in excess of the quantity which the said corporation could lawfully obtain directly, and in that manner defraud the United States of its valuable property in such lands, and of its governmental functions in disposing of the same.

The indictment charges overt acts in furtherance of said conspiracy as follows: First, that the defendant Freeman, on the 25th day of August, 1899, unlawfully did, by solicitation and promise of reward to her in some small sum of money, the amount whereof is to the grand jurors unknown, induce and procure one Jennie Culbertson to execute and verify by her oath before the said register a certain document in the form prescribed by law and entitled 'Testimony of Claimant,' for presentation by the said Jennie Culbertson to the said register, and through the said register to the Commissioner and the said Secretary, in connection with the entry of the said Jennie Culbertson of the timber lands described, containing 160 acres. The second and third overt acts as charged are identical with the first in time, character of affidavit, and amount of lands, and differ only as to name of entryman. The fourth, fifth, sixth, and seventh overt acts charged are identical with the first, except that they all charge the overt acts therein specified to have been done on October 11, 1899. They differ, however, as to the name of entrymen. The eighth overt act as charged is to the effect that the defendants McPhee and McGinnity, on May 15, 1906, unlawfully did request and require said William Barth to sign and execute a certain quitclaim deed conveying the title to all the lands described in the overt acts to the corporation as grantee. The indictment then sets forth the deed in haec verba, the closing paragraph of which, in the testimonial clause thereof, is as follows: 'This deed is given as correction for deed made June 1, 1900.'

The lands described in this indictment were it is claimed acquired from the government under Act June 3, 1878, c. 151, 20 Stat. 89, as amended by Act Aug. 4, 1892, c. 375, Sec. 2, 27 Stat. 348 (U.S. Comp. St. 1901, p. 1547), and known as the 'Timber and Stone Lands Act.' This act in its first section specifies the qualifications of purchasers or entrymen thereunder and limits the amount of land which each may acquire to 160 acres. The second section provides that the applicant, at the time of his application, shall file a written statement in duplicate under oath with the register, describing the land which he desires to purchase and its quality, that he has made no other application under this act, and that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit, and that he has not, directly or indirectly, made any agreement or contract in any way or manner with any person or persons whatsoever by which the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself. It then provides that if he swears falsely he shall be guilty of perjury and forfeit the money which he paid for said lands, and all right and title to the same, and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void. The third section provides that on the filing of the applicant's statement the register shall post a notice of the application in his office for a period of 60 days, and that the applicant shall publish the same notice in a newspaper nearest the location of the premises for a like period of time, and after the expiration of said 60 days, if no adverse claim shall have been filed, the party desiring to purchase shall furnish to the register of the land office satisfactory evidence, 'first, that said notice of the application prepared by the register as aforesaid was duly published in a newspaper as herein required; secondly, that the land is of the character contemplated in this act, unoccupied and without improvements,' etc., 'and upon payment to the proper officer of the purchase money of said land together with the fees of the register and receiver,' etc., 'the applicant may be permitted to enter said land,' and a patent shall issue thereon. It further provides that any person having a valid claim to any portion of the land may object in writing to the issuance of the patent, and evidence shall be taken thereon as to the merits of said objection.

By referring back to the charging part of the indictment, it will be observed that it is not charged that the defendants conspired to procure others to make applications to purchase said lands. The charge is that the conspiracy consisted in hiring others, 'and under agreements with them separately to that end to pay to the receiver of the said land office with money to be furnished them by the said corporation the price fixed by law therefor, make entries as individual entrymen at the land office aforesaid,' etc. From this it is evident that the certain documents described as 'Testimony of Claimant' in the several overt acts had reference to an affidavit required by the land office officials when the claimant appeared at the office after the 60 days' publication, as provided in section 3 of the act. Indeed, this was not denied by counsel for the government on argument.

Defendants demur and move to quash.

Ernest Knaebel, Sp. Asst. Atty. Gen., for the United States.

Clyde C. Dawson and Chas. J. Hughes, Jr., for defendants.

LEWIS, District Judge (after stating the facts as above).

1. The indictment in its charge does not embody the use of criminal means to accomplish the end. So the inquiry is: Do the facts charged constitute a defrauding of the United States within the meaning of the second clause of section 5440 (U.S. Comp St. 1901, p. 3676)? The...