United States v. Crum, Crim. A. No. 75-252.
Decision Date | 02 December 1975 |
Docket Number | Crim. A. No. 75-252. |
Citation | 404 F. Supp. 1161 |
Parties | UNITED STATES of America v. Richard CRUM. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Richard M. Fishkin, U. S. Atty., Washington, D.C., for plaintiff.
Martin M. Sheinman, Pittsburgh, Pa., for defendant.
DEFENDANT'S MOTION TO DISMISS COUNT ONE OF INDICTMENT
Defendant has moved to dismiss Count I of the indictment, which alleges violation of 18 U.S.C. § 241. That statute prohibits conspiracies to threaten or intimidate citizens of the United States because of their exercise of a right secured to them by the Constitution or laws of the United States. In this case, the indictment charges that the defendant as part of a conspiracy discharged a firearm into the door of premises occupied by Calvin and Verna Toler, and that the purpose of doing so was to intimidate them not to exercise their right to occupy and enjoy housing without discrimination on the basis of race or color. No one else is indicted.
Defendant's motion to dismiss is premised on the government's failure to prosecute the defendant's co-conspirators. Defendant argues that under the peculiar language of Section 241, one conspirator cannot alone be prosecuted and punished. Defense counsel cites the statute itself as the basis for his argument:
The defense argues that according to the statute "they" must be punished, and that since the defendant is the only person indicted, this requirement cannot be met and Count I of the Indictment must be dismissed. We disagree.
The court will assume for present purposes that the defendant's alleged co-conspirators cannot or will not be prosecuted, either because they have been given immunity or for other reasons.
The defendant acknowledges the general rule in conspiracy cases that the absence of one or more co-conspirators does not prevent prosecution of the others. Co-conspirators are commonly absent because their identity is unknown or because immunity, or even a Presidential pardon, has been given. An individual can be convicted and punished for conspiracy even though his fellow conspirators may be immune from prosecution as representatives of a foreign government.1 Of course, the evidence must show that there were at least two conspirators.2 Where the evidence of other conspirators is insubstantial and one charged conspirator is acquitted, the conspiracy conviction of the other must fail also.3 When there are two alleged conspirators, both on trial, it is proper to tell the jury that it is not proper to convict one and to acquit the other.4 The conviction of some alleged conspirators, however, does not fall merely because others named are acquitted, even though the conviction of the others is logically required for the finding of guilty of those held.5
Despite the authorities cited, however, defendant contends that these general principles do not control the specific question raised here under the apparently unique wording of Section 241, which as we have noted provides that "they shall be" punished.
The court and counsel have examined several other federal conspiracy statutes and have found no other statute with this particular wording in the clause authorizing punishment. At least four other formulations appear:
Likewise, we have found no other reported decision wherein a court has addressed itself to this problem.
Were the court to apply the principle of statutory construction — and of logic — that different wording should be construed to mean different things and the corollary to that principle that if Congress intended different statutes to mean the same thing, it would have used identical language, the court would then be asked to distinguish five different statutes that obviously mean the same thing. The only logical conclusion to be drawn from these many different formulations is that the statutes were drafted on separate occasions, probably by different people, with no attempt to reconcile their wording by putting them through a computer to flush out these variations as might be done today. As in United States v. Padilla, 374 F.2d 782, 788 (2d cir 1967) (Friendly, J., concurring), the present case is but another example of "how draftsmen and revisers can create problems as to the meaning of statutes without busy legislators having any notion what is occurring."
As to the maxim that penal statutes should be strictly construed, we note, as did Judge McCune of this court in United States v. Rosa, 404 F.Supp. 602(W. D.Pa.1975), the Supreme Court's comment in United States v. Cook, 384 U.S. 257, 86 S.Ct. 1412, 16 L.Ed.2d 516, (1966):
"
We note that the United States Supreme Court considered Section 241 at length in United States v. Guest, 383 U. S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) and United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). Neither of these cases dealt with the specific question raised by the defendant here. However, in the Price case, which held that the rights protected by Section 241 included all Constitutional rights including those secured by the Fourteenth Amendment, the Supreme Court indicated that Section 241 should be accorded a broad sweep:
383 U.S. at 801, 86 S.Ct. at 1160, 16 L.Ed.2d at 276.
Price dealt with the predecessor of Section 241, which was amended to its present form by Public Law 90-284, April 11, 1968. The legislative history of that Act appears at 1968 U.S.Code, Cong. and Admin.News, p. 1837. This history in no way suggests an attempt by Congress to limit the application of Section 241. Rather, that amendment, which added Section 245 to the penal code as well as changing the existing Sections 241 and 242, was directed at aiding the salutary purposes contained in the earlier provisions. Specifically referring to the Guest and Price cases, the Senate Report said the amendment was to assure coverage by the statute of purely private actions that would interfere with Fourteenth Amendment rights, to enhance enforcement efforts by curing certain vagueness problems in the existing statutes, to prohibit individual as well as group conspiratorial acts (through the addition of Section 245), and to graduate the penalties in accordance with the seriousness of the violation, including the imposition of life imprisonment if death resulted from the offense.
In light of this legislative history and the plain words of Section 241, the court is not "at liberty to seek ingenous analytical instruments"6 to limit and frustrate the enforcement of Section 241. If Congress intended to restrict enforcement of that section by requiring that all conspirators, or none at all, be punished, Congress could easily have said so. It is most implausible that Congress intended by the phrase "they shall be" that the crime be completed only when the Grand Jury indicts a co-conspirator.
The court notes, too, that cases can be found in which only one conspirator was indicted and convicted under Section 241 itself: United States v. Pacelli, 521 F.2d 135 (2d cir 1975); United States v. Robinson, 503 F.2d 208 (7th cir 1974), cert. den., 420 U.S. 949, 95 S.Ct. 1333, 43 L.Ed.2d 427. Neither of these cases considered the precise question raised here, but implicit in both cases is the holding that two or more persons must...
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