United States v. Burke

Citation221 F. 1014
Decision Date06 April 1915
Docket Number7/391.
PartiesUNITED STATES v. BURKE et al.
CourtU.S. District Court — Southern District of New York

Frank E. Carstarphen, Asst. U.S. Atty., of New York City.

Phanor J. Eder and William Rand, Jr., both of New York City, for defendant Salas.

CUSHMAN District Judge.

The defendant Salas demurs to the indictment, which charges the three defendants with a conspiracy to defraud the United States-- it being charged that John Burke was a person acting for and on behalf of the United States in an official capacity, as manager of the Commissary Department of the Subsistence Department of the Isthmian Canal Commission; that the other two defendants were engaged in buying and selling supplies, tobacco, and merchandise in Colon, Panama; that it was planned and agreed that Burke should purchase large quantities of tobacco from Salas, for which favor he was to receive, for his own benefit, from the other two defendants large sums of money. A demurrer to a similar indictment has been overruled by this court. United States v. Burke et al. (D.C.) 218 F. 83.

Counsel for defendant urges that the present ground of demurrer was not considered by the court upon that ruling. United States v.

Dietrich et al. (C.C.) 126 F. 664, is relied upon as requiring the sustaining of the present demurrer. In that case it was held that an indictment would not lie for conspiracy, under section 5440, against the briber and the bribed, alone; but it is pointed out in the opinion:

'The charge is not that two or more persons agreed among themselves to corruptly obtain the aid of * * * a member of Congress.'

It would therefore appear that, even if that authority is to be considered as applicable to a case where the indictment charges a conspiracy to defraud the United States, and not the substantive offense of bribery, it recognizes that an agreement by two persons to bribe an officer would be the subject of an indictment for conspiracy, even though a single individual, agreeing with the bribed official, would not be so subject to such indictment.

Section 5440 provides that:

'If two or more persons conspire * * * to defraud the United States in any manner or for any purpose, * * * each of the parties to such conspiracy shall be fined. * * * ' Comp. St. 1913, Sec. 10201.

The italics in the foregoing quotation are those of the court. They, alone, warrant a distinction between the present case and a case such as the...

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11 cases
  • United States v. Cogan, 66 Cr. 683.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 14, 1967
    ......513, 70 L.Ed. 986 (1926); United States v. Holte, 236 U.S. 140. 35 S.Ct. 271, 59 L.Ed. 504, L.R.A.1915D, 281 (1915).         5 See Chadwick v. United States, 141 F. 225 (6th Cir. 1905); Thomas v. United States, 156 F. 897, 17 L.R.A.,N.S., 720 (8th Cir. 1907); United States v. Burke, 221 F. 1014 (S.D.N.Y.1915) rev'd on other grounds sub nom. Salas v. United States, 234 F. 842 (2d Cir. 1916); United States v. Grand Trunk Ry. Co. of Canada, 225 F. 283 (W.D.N.Y.1915); McKnight v. United States, 252 F. 687 (8th Cir. 1918), cert. denied, 249 U.S. 614, 39 S. Ct. 388, 63 L.Ed. 802 ......
  • People v. Davis, Docket No. 60034
    • United States
    • Supreme Court of Michigan
    • April 1, 1980
    ...persons, and if they have in fact committed the crime, they may not be convicted of a conspiracy to commit it"); United States v. Burke, 221 F. 1014, 1015 (S.D.N.Y., 1915), rev'd on other grounds sub nom. Salas v. United States, 234 F. 842 (CA 2, 1916); and United States v. Grand Trunk R. C......
  • United States v. Anthony, Cr. No. 12662.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • September 14, 1956
    ...233, 175 F.2d 994, at page 1002; Thomas v. United States, 8 Cir., 1907, 156 F. 897, at pages 900, 901; United States v. Burke, D.C. S.D.N.Y.1915, 221 F. 1014, 1015; Galatas v. United States, 8 Cir., 1935, 80 F.2d 15, at pages It has long been settled that conspiracy to commit a crime is a d......
  • State v. Aircraft Supplies, Inc., 4265
    • United States
    • New Jersey County Court
    • April 26, 1957
    ...v. United States, 289 F. 424 (2 Cir. 1923); United States v. Grand Trunk Ry. Co. of Canada, 225 F. 283 (D.C.1915); United States v. Burke, 221 F. 1014 (D.C.1915); McKnight v. United States, 252 F. 687 (8 Cir. 1918); United States v. Zeuli, 137 F.2d 845 (2 Cir. 1943), and Gebardi v. United S......
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