United States v. Cohen

• Decision Date: 15 July 1953
• Parties: UNITED STATES v. COHEN et al.
• Court: U.S. District Court — Southern District of New York

113 F. Supp. 955

UNITED STATES v. COHEN et al.

United States District Court S. D. New York.

July 15, 1953.

J. Edward Lumbard, Jr., U. S. Atty., New York City, Richard Owen, Asst. U. S. Atty., New York City, for United States.

Milton C. Weisman and Lester Samuels, New York City, for defendants Helfer, King and Weiger.

Harper & Matthews and Harold Harper, New York City, for defendant Shepard Shaff.

Harold J. McAuley, New York City, for defendant Irving Koch.

WRIGHT, District Judge.

The indictment charges twenty-one defendants with a conspiracy to defraud the United States in the exercise of its governmental function concerning the official inspection of eggs and concerning its right to have the lawful functions of the Grading Division of the Department of Agriculture administered free from corruption and bribery. 18 U.S.C. § 371. It charges that the defendants conspired to bribe three United States Department of Agriculture egg inspectors, two of whom are named as defendants and the third, one Lamcke, is named a co-conspirator but not indicted.

Motions have been filed by the various defendants asking a dismissal of the indictment on the ground that it does not state an offense and on the ground that the evidence to be produced in support thereof will show several conspiracies rather than the one charged. In support of the latter, defendants urge that an inspection of the transcript made before the Grand Jury should be had in order to determine whether the evidence shows one or multiple conspiracies. In the alternative, the defendants ask for a bill of particulars.

The motions to dismiss on the ground that the indictment does not state an offense are not seriously urged. Nor could they be. The indictment itself follows the classic or orthodox lines of a conspiracy count and it is clear that it is an offense to defraud the government by conspiring to impair, obstruct and defeat the lawful functions of any department thereof. Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L. Ed. 569.

Defendants seriously urge the motion to dismiss based on the ground that the evidence will show, or that the evidence taken before the Grand Jury does show, more than one conspiracy. In support thereof they make the novel suggestion¹ that the court inspect the Grand Jury transcript, or better still, that the defendants themselves inspect it to determine at this time whether or not there is any evidence to support the charge of a single conspiracy. The burden of defendants' argument is that those defendants, who are New York City egg dealers, are competitors and hence not conspirators; that if the government's case shows anything, it merely shows that individual dealers acting on their own, and not in concert with others, bribed government inspectors. They rely heavily on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, in which a single conspiracy was charged and multiple conspiracies proved and in which the Supreme Court held that since the charge as laid in the indictment was not proved, the defendants were entitled to a judgment of acquittal.

Defendants' argument seems to be that the ruling in Kotteakos requires a District Judge, on a motion to dismiss, to inspect, or allow inspection of, the Grand Jury transcript in order to determine whether or not the government will eventually be able to prove the single conspiracy charged in the indictment. Obviously, Kotteakos is authority for no such procedure.² The ruling in the Kotteakos case came after a full trial on the merits and after admission by the government that its proof did establish several, rather than one conspiracy.

Assuming, however, that Kotteakos would require a District Judge at this stage of the proceedings to go behind the indictment to determine what the government's proof will eventually show, defendants are still not entitled to the relief sought.

It is clear that where there is some legal evidence taken before the Grand Jury to support the indictment, the court's inquiry is at an end. The court cannot go behind the indictment and determine whether or not the government's proof is sufficient for conviction or even for indictment, these matters being within the province of the petit and grand juries. McGregor v. United States, 4 Cir., 134 F. 187; United States v. Herzig, D.C., 26 F.2d 487; United States v. Lehigh Valley R. Co., D.C., 43 F.2d 135; United States v. Siebrecht, D.C., 44 F.2d 824; United States v. Frontier Asthma Co., D.C., 69 F.Supp. 994.

Applying that law to the present case there can be no question that an inference of conspiracy can properly be drawn from the evidence which was admittedly adduced before the Grand Jury. The confession of the conspirator Lamcke, who testified before the Grand Jury, shows that the egg dealer defendants herein are a close-knit group; that their places of business adjoin each other geographically; that defendants not only knew each other well but in some instances are blood relatives; and that all of them paid the identical bribe of 10¢ a case to government inspectors for the issuance of certificates on eggs which in all respects were not up to standard. What inferences the Grand Jury drew from these and other facts which were admittedly before it, or what inferences the petit jury, before which this case will be...