United States v. Burke

• Decision Date: 14 August 1914
• Citation: 218 F. 83
• Parties: UNITED STATES v. BURKE et al.
• Court: U.S. District Court — Southern District of New York

218 F. 83

UNITED STATES v. BURKE et al.

United States District Court, S.D. New York.

August 14, 1914

H Snowden Marshall, U.S. Atty., Frank E. Carstarphen, Ben A Matthews, and Harold A. Content, Asst. U.S. Attys., all of New York City.

Phanor J. Eder, of New York City (Everly M. Davis, of New York City of counsel), for defendant Salas.

GRUBB District Judge.

The indictment charges that between January 1, 1908, and February 9, 1914, John Burke and Jacob L. Salas did unlawfully conspire to defraud the United States; the agreement consisting of a promise on the part of Burke to cause purchases on behalf of the commissary department to be made from Salas, and in consideration therefor a promise of Salas to cause large sums of money to be paid to Burke. The overt acts charged consist in the delivery in the Canal Zone by Salas to Burke of drafts on May 29, 1909, July 27, 1911, and July 3, 1913, and the receipt of said drafts by said Burke. Acceptance and payment and receipt of payment of these drafts by agents of Burke and Salas in the city of New York are laid as overt acts, giving jurisdiction in the Southern district of New York. The question presented by the demurrer is whether the alleged payments constitute overt acts to effect the object of the conspiracy.

This matter comes on for determination of a demurrer to the indictment, upon the ground that the District Court for the Southern District of New York is without jurisdiction of the offense; the contention being that the indictment shows that the conspiracy was formed between the defendants in the Canal Zone, and fails to show the commission of any overt act within the jurisdiction of this court. It is not clear that the question, intended to be presented, can be raised by a demurrer to the indictment, in view of the fact that the indictment alleges, at least as a conclusion, that the payments, relied upon by the plaintiff, were overt acts to effect the object of the conspiracy.

However after considering the matter upon the merits, I have reached the conclusion that the averments of the indictment relating to defendant Burke's collection of the drafts in this district through a local bank give this court jurisdiction of the offense. The collecting bank in New York City was an agent of defendant Burke in presenting and receiving acceptance and payment of the draft, and its acts in so doing are Burke's acts; and this is true, though the...