United States v. O'BRIEN

• Decision Date: 26 May 1965
• Docket Number: Cr. No. 40081.
• Parties: UNITED STATES of America, Plaintiff, v. Charles Joseph O'BRIEN and Thomas Parisi, Defendants.
• Court: U.S. District Court — Western District of Michigan

255 F. Supp. 755

UNITED STATES of America, Plaintiff, v. Charles Joseph O'BRIEN and Thomas Parisi, Defendants.

Cr. No. 40081.

United States District Court E. D. Michigan, S. D.

May 26, 1965.

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Lawrence Gubow, U. S. Atty., Paul J. Komives, Asst. U. S. Atty., Robert J. Grace, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

James E. Haggerty, William E. Bufalino, Philip A. Gillis, Detroit, Mich., for defendant O'Brien.

George S. Fitzgerald, Paul B. Mayrand, Detroit, Mich., for defendant Parisi.

FREEMAN, District Judge.

In this criminal prosecution, a 3-count indictment in the language of the statute, 18 U.S.C. § 549, charges that the defendants Charles O'Brien and Thomas Parisi unlawfully removed certain merchandise from custody and control of the United States Customs Service at the Detroit Harbor Terminal in Detroit, Michigan. At trial, defendant Parisi was found guilty on two counts and the jury found O'Brien guilty on all three counts of the indictment. Both defendants now move for arrest of judgment under Rule 34 of the Federal Rules of Criminal Procedure on the ground that the indictment does not charge an offense.

Defendants contend that the indictment is fatally defective because it fails to inform defendants in what manner the alleged removal was unlawful. Defendants argue that removing merchandise from Customs' custody is not inherently an unlawful act, but only malum prohibitum and, hence, the indictment is fatally defective since it makes no reference to any statute or regulation which would render the alleged removal in the instant case unlawful, and so does not inform defendants of the nature of the offense charged. Defendants further contend that the word "unlawfully", as used in the indictment, is merely a conclusion of law, which is insufficient to allege the necessary element of criminal intent.

Rule 34 provides: "The court shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged."

Defendants first raised objection to the indictment during proceedings to impanel the jury on the second day of trial

Rule 12(b) (2), in pertinent part, provides:

"Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. * * * Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding."

Thus, by waiting until after commencement of trial to raise their objection to the indictment, defendants waived any objection other than that the indictment failed to charge an offense. United States v. Williams, 202 F.2d 712 (CA 5, 1953). In other words, it is not sufficient at this time for the indictment to be defective. If defendants' motion in arrest of judgment is to be granted, the indictment must be fatally defective for failure to charge an offense. Both rule 12(b) (2) and rule 34 so require. Even if this court concluded that the indictment is defective, but not fatally defective, the motion for arrest of judgment would have to be denied as not being timely filed.

In support of their contention that the indictment does not charge an offense, defendants rely on the cases of Keck v. United States, 172 U.S. 434, 19 S.Ct. 254, 43 L.Ed. 505 (1899), and Hughes v. United States, 338 F.2d 651 (CA 1, 1964). The Keck case held an indictment fatally defective for failure to charge an offense under 18 U.S.C. § 545, which makes it a crime to import merchandise into the United States "contrary to law". The indictment was ruled defective because the words "contrary to law" in the statute were thought to relate to other legal provisions not included in section 545 itself. The indictment did not refer to any other statutory provisions which would make the importation of merchandise contrary to law in the particular case, and so the court held that the defendants were not sufficiently informed of the nature of the offense.

In Hughes, which opinion was published only after the jury verdict in the instant case, the First Circuit Court of Appeals remanded the case to the District Court with instructions to dismiss the indictment, which charged defendants with unlawfully removing certain merchandise while said merchandise was in Customs' custody and control, in violation of 18 U.S.C. § 549. The Court of Appeals held the indictment, which was substantially in the words of the statute, to be fatally defective for failure to allege felonious intent. The court rested its holding on the two conclusions that section 549 is essentially a codification of common law larceny, which has as one of its elements a felonious intent, and also that the use of the word "unlawfully" in the indictment was insufficient to allege felonious intent. In this connection, the court reasoned, "It would seem to us that `unlawfully' is a conclusion of law meaning `contrary to law' and no more. We do not interpret it as meaning `knowingly.' * * * Of the cases cited by the Government as being to the contrary, we have not found one which clearly holds that `unlawfully' alone will suffice to imply an element of intent."

It is important to note that the holding of the Hughes case, now cited by defendants, is not entirely consistent with the position defendants took at trial in citing and relying on the Keck case. Hughes holds that an indictment under section 549 must allege a felonious intent or be dismissed. Defendants at trial argued that an indictment under section 549 must allege the provisions of some other statute or be dismissed, citing Keck in support of this contention. It is clear that defendants, in relying on Hughes, have shifted the nature of their attack on the indictment. However, since a fatally defective indictment may be attacked at any time, defendants are not barred from raising new grounds of attack for the first time on a motion for arrest of judgment subsequent to trial.

This court is of the view that the Keck case is distinguishable, because the term "unlawfully" in section 549 does not bear the same construction as the phrase "contrary to law" as used in section 545. In order for an offense to be charged under section 549, it is not necessary that the indictment refer to any statute other than section 549 itself, since the proper construction of the term "unlawfully", as used in section 549, is "with wrongful intent" rather than "contrary to the express provisions of some other statute." Under this construction, the offense of unlawful removal of merchandise from Customs' custody is analogous to common law larceny.

The other provisions of section 549 lend support to a broad construction of the term "unlawfully". The first two paragraphs of section 549 use the phrase "without authority" in defining offenses. It seems clear that Congress must have intended that the term "unlawfully" should have a broader meaning than "without authority". Otherwise, Congress would once again have used the phrase "without authority" in defining the offense charged in this case. It should also be noted that the other offense also defined in paragraph three of section 549 speaks of maliciously entering a bonded warehouse with intent unlawfully to remove merchandise therefrom. This offense is clearly analogous to common law burglary. It is, therefore, reasonable to assign a broad meaning to the term "unlawfully" so that the second offense defined in the same paragraph should be analogous to common law larceny. Thus, statutory construction of section 549 leads to the conclusion that Congress intended the term "unlawfully" to have a broad meaning.

Defendants themselves appear to admit the propriety of this construction of the term "unlawfully" in their requested instructions to charge the jury, as follows: "Unlawfully means contrary to law. Hence to do an act `unlawfully' means to do wilfully something which is contrary to law. An act is done `wilfully' if done voluntarily and purposely and with the specific intent to do that which the law forbids; that is to say, with bad purpose either to disobey or to disregard the law." Under this requested instruction to charge the jury, the term "unlawfully" clearly has a broader meaning than being contrary to the express provisions of some other statute. The requested instruction is in accord with the Government's theory that section 549 in itself defines a crime analogous to common law larceny, and that, therefore, the indictment need not have reference to any other statute to inform defendants of the nature of the offense charged.

Thus, the conclusion of the First Circuit Court of Appeals in Hughes that section 549 is essentially a codification of common law larceny is well taken. However, the further conclusion of the Court of Appeals in Hughes that the word "unlawfully" does not allege a felonious intent is contrary to the instructions to the jury requested by defendants in the instant case. Further, such a construction of the word "unlawfully" renders the word mere surplusage in section 549. The Court of Appeals in Hughes argued: "Indeed, it would seem to us that the indictment as it is phrased would support the conviction of a person who innocently removed goods from customs custody and control before their release, mistakenly thinking the appropriate papers complete when they were not." But if "unlawfully" does not mean "with felonious intent", then section 549 itself defines the innocent removal of merchandise from customs custody as a crime regardless of a mistake. Under the construction urged by the court in Hughes, it is not merely the...