United States v. Boisvert

• Decision Date: 06 September 1960
• Docket Number: Cr. Ind. No. 6665.
• Citation: 187 F. Supp. 781
• Court: U.S. District Court — District of Rhode Island
• Parties: UNITED STATES of America v. Donald J. BOISVERT, Diorio Bros., Anthony Diorio, Pasco Diorio, J. Tirocchi & Sons, Inc., Valentino Tirocchi, Vincent Tirocchi, A. Forte & Sons, Inc., James A. Forte, Joseph A. Forte, Treffle J. Morin, Frank J. Shields, Inc., John F. Shields, Justin E. Abrams, C. L. Guild Construction Co., Inc., Charles L. Guild, William Unsworth.

187 F. Supp. 781

UNITED STATES of America v. Donald J. BOISVERT, Diorio Bros., Anthony Diorio, Pasco Diorio, J. Tirocchi & Sons, Inc., Valentino Tirocchi, Vincent Tirocchi, A. Forte & Sons, Inc., James A. Forte, Joseph A. Forte, Treffle J. Morin, Frank J. Shields, Inc., John F. Shields, Justin E. Abrams, C. L. Guild Construction Co., Inc., Charles L. Guild, William Unsworth.

Cr. Ind. No. 6665.

United States District Court D. Rhode Island.

September 6, 1960.

Joseph Mainelli, U. S. Atty., Providence, R. I., for plaintiff.

John A. Varone, Providence, R. I., for Donald J. Boisvert and Treffle J. Morin.

William G. Grande, Providence, R. I., for DiOrio Bros., Anthony DiOrio and Pasco DiOrio.

Jacob S. Temkin, Benedetto A. Cerilli, Providence, R. I., Amedeo C. Merolla, Samuel A. Olevson, of counsel, for J. Tirocchi & Sons, Inc., Valentino Tirocchi and Vincent Tirocchi.

Charles A. Curran, Providence, R. I., for A. Forte & Sons, Inc., James A. Forte and Joseph A. Forte.

John T. Walsh, Providence, R. I., for Frank J. Shields, Inc. and John F. Shields.

Haig Barsamian, Providence, R. I., for Justin E. Abrams.

James A. Higgins, William C. Dorgan, Providence, R. I., for C. L. Guild Const. Co., Inc., Charles L. Guild and William Unsworth.

DAY, District Judge.

This is an indictment which charges the defendants with conspiracy to defraud the United States and to commit certain offenses against the United States in violation of 18 U.S.C. § 371. All of the defendants have moved to dismiss it. While these motions differ somewhat in their verbiage, the grounds of the several motions may properly be summarized as follows:

1. The indictment does not inform the defendants of the nature and cause of the accusation against each of them.

2. The indictment does not state facts sufficient to constitute an offense against the United States.

3. The indictment is similar to that indictment which is docketed as indictment No. 6664 in the files of this Court in the conspiracy charged therein. Therefore, the conspiracy charged in this indictment has been fragmented from the whole conspiracy for the purpose of prosecution to the prejudice of the defendants.

4. The indictment improperly and prejudicially charges offense objects which are similar in the alleged conspiracy.

5. The indictment charges a conspiracy to commit an offense against the United States which itself requires a concert of action.

6. The indictment is improper and prejudicial in its allegations as to certain overt acts by particular defendants.

The indictment, containing one count, charges that "beginning on or about April 1, 1955 and continuously thereafter up to and including the date of this indictment" the defendants "did wilfully, knowingly and unlawfully conspire, combine, confederate and agree together, and each with the other, to commit certain offenses against the United States, to-wit:

"1. To defraud the United States of its property and money by embezzling, stealing, purloining and knowingly converting said property and money to their own use and gain.

"2. To embezzle, steal, purloin and knowingly convert to their use property and money belonging to the United States having a value in excess of $100.00.

"3. To receive, conceal and retain things of value of the United States, to-wit: property and money having a value in excess of $100 with intent to convert the same to their use and gain, knowing the same to have been embezzled, stolen, purloined and converted, in violation of Title 18, United States Code, Section 641."

The indictment further charges "that said unlawful conspiracy, combination, confederation and agreement was to be accomplished by the means and method and in the manner following:

"1. It was an essential part of said conspiracy that the defendant Boisvert, in connection with his duties in the disposal of surplus property at C.B.C. would prepare false, fictitious and fraudulent invoice/shipping documents; would falsify invitations to bid and contracts of awards; would make and present to the Disbursing Office at C.B.C. false and fraudulent accounts, and would alter, conceal and destroy pertinent documents relative to the disposal of surplus property at C.B.C.

"2. It was an essential part of said conspiracy that said other defendants would procure and cause to be procured certain false, fraudulent and fictitious documents from defendant Boisvert and by means thereof would remove and cause to be removed from C.B.C. certain surplus property belonging to the United States without the same being paid for in full."

The indictment then alleges fifty-six specific overt acts which the Government claims were performed in furtherance of and for the purpose of carrying said conspiracy into execution.

Today it is no longer necessary to follow the old common law rules of criminal pleading. Sutton v. United States, 5 Cir., 1946, 157 F.2d 661; Lowenburg v. United States, 10 Cir., 1946, 156 F.2d 22. "The sufficiency of an indictment must be determined on the basis of practical rather than technical considerations" Duke v. United States, 5 Cir., 1956, 233 F.2d 897, 899. An indictment is sufficient if it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet so as to enable him to prepare his defense and to plead the judgment therein in bar of any further prosecution for the same offense. United States v. Debrow, 1953, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 94; Hagner v. United States, 1932, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Duke v. United States, supra; Sutton v. United States, supra; Lowenburg v. United States, supra; Enrique Rivera v. United States, 1 Cir., 1932, 57 F.2d 816; United States v. Apex Distributing Company, Inc., D.C.R.I.1957, 148 F.Supp. 365.

And where, as here, the indictment is for conspiracy, it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy. The rule is clearly set forth in Wong Tai v. United States, 1927, 273 U.S. 77, at page 81, 47 S.Ct. 300, at page 301, 71 L.Ed. 545, where the Supreme Court said:

"It is well settled that in an indictment for conspiring to commit an offense — in which the conspiracy is the gist of the crime — it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy. Williamson v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 52 L.Ed. 278, or to state such object with the detail which would be required in an indictment for committing the substantive offense. Thornton v. United States, 271 U.S. 414, 423, 46 S.Ct. 585, 70 L.Ed. 1013; Jelke v. United States, 7 Cir., 255 F. 264, 275; Anderson v. United States, 8 Cir., 260 F. 557, 558; Wolf v. United States, 7 Cir., 283 F. 885, 886; Goldberg v. United States, 8 Cir., 277 F. 211, 213. In charging such a conspiracy `certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is necessary'. Williamson v. United States, supra, 447 (28 S.Ct. 171); Goldberg v. United States, supra, 213."

In my opinion the present indictment meets the foregoing requirements.

The third ground of the defendants' motions is that the conspiracy charged in the instant indictment has been fragmented from a single conspiracy for the purpose of prosecution to the prejudice of the defendants. In support of this contention they point to said indictment No. 6664 which was returned by the Grand Jury simultaneously with this indictment and which charges all except two of the defendants herein with conspiracy in violation of 18 U.S.C. § 286. They contend that certain of the allegations contained therein make this conclusion unescapable. On the other hand, the Government insists that the defendants were participants in two separate, distinct conspiracies and that it expects to establish by competent evidence that...