United States v. Cullen

• Decision Date: 29 October 1969
• Docket Number: No. 68-CR-113.,68-CR-113.
• Citation: 305 F. Supp. 695
• Parties: UNITED STATES of America, Plaintiff, v. Michael Denis CULLEN, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

305 F. Supp. 695

UNITED STATES of America, Plaintiff, v. Michael Denis CULLEN, Defendant.

No. 68-CR-113.

United States District Court E. D. Wisconsin.

October 29, 1969.

Robert J. Lerner, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.

Shellow, Shellow & Coffey, Milwaukee, Wis., for defendant.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The defendant, Mr. Cullen, is one of 14 persons, known collectively as the "Milwaukee 14", who were prosecuted in connection with the destruction of selective service records. A three-count indictment was returned against them on October 17, 1968.

Subsequently, Mr. Cullen brought a motion to sever. Upon the stipulation of the United States and Mr. Cullen, the court ordered that Mr. Cullen be tried separately on the substantive counts of the indictment and that such trial take place subsequent to that of the other named defendants, except John Hagedorn. Upon the stipulation of the parties, the court also ordered that Mr. Cullen be tried on the conspiracy count separately from and after the completion of his trial on the substantive counts.

In this decision the court will decide other motions brought by Mr. Cullen. He has moved to dismiss each of the three counts of the indictment. In the alternative, he has moved for an order compelling the government to elect one of the counts on which to prosecute him. Mr. Cullen contends that the three counts of the indictment are mutually exclusive so that the government can only prosecute him on one. He has also moved for a bill of particulars.

In addition, Mr. Cullen has moved for production of a list of all government witnesses against him and their last known addresses; for production of any confessions he may have made and the names and addresses of witnesses to it; for any evidence tending to exculpate him of the offenses charged or tending to diminish the degree of his criminal liability; and for production of the minutes of the grand jury which indicted him.

I. MOTIONS TO DISMISS AND TO ELECT

Mr. Cullen has filed six motions to dismiss. Three of these motions each allege a separate ground for dismissing the first count of the indictment. In the alternative, he has brought three motions to require the prosecution to make an election.

Count I charges Mr. Cullen with conspiring with others of the "Milwaukee 14" to violate 18 U.S.C. §§ 2 and 2071 by wilfully destroying selective service records and to violate 18 U.S.C. § 2 and 50 U.S.C.App. § 462(a) by wilfully interfering with the administration of the Military Selective Service Act of 1967, in violation of 18 U.S.C. § 371.

In his first motion, Mr. Cullen contends that since 50 U.S.C.App. § 462(a) contains its own conspiracy section, the government cannot charge a separate violation of § 462(a) under 18 U.S.C. § 371. The government denies that the indictment charges Mr. Cullen with "conspiring to conspire". The government argues that the indictment properly charges conspiracy to violate two federal laws, 18 U.S.C. § 2071 and the substantive part only of 50 U.S.C.App. § 462(a).

The court in Georges v. United States, 262 F.2d 426, 431 (5th Cir. 1959), observed that "As between two statutes punishing conspiracy, the particular statute is to be preferred over the general statute." When a conspiracy is charged to violate two statutes and one of those statutes has a built-in conspiracy provision, the indictment should refer to § 371 only in connection with that statute which does not contain a built-in conspiracy provision. Such a practice would avoid the problems illustrated by this case and by Tanksley v. United States, 321 F.2d 647 (8th Cir. 1963). Since § 462(a) contains its own conspiracy provision, that provision controls, and reference to § 371 was improper.

However, Mr. Cullen does not allege that he was prejudiced by this reference. The indictment refers the defendant to the controlling section, and I can detect no prejudice to the defendant. Rule 7 (c), Federal Rules of Criminal Procedure, provides

"Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice."

The Notes of the Advisory Committee on Rules, 18 U.S.C.A. Rule 7, Federal Rules of Criminal Procedure, make clear at page 325 that "citations to statutes or regulations are not a part of the indictment." Therefore, in my opinion the criticized citation in this case is not ground for dismissing the indictment, and defendant's first motion must be denied. Brown v. United States, 112 U.S.App.D.C. 57, 299 F.2d 438 (1962); Davis v. United States, 279 F.2d 576 (4th Cir. 1960); United States v. McKnight, 253 F.2d 817 (2d Cir. 1958).

In his second motion to dismiss count I, Mr. Cullen contends that by referring to 18 U.S.C. § 2, the indictment charges the defendant with the crime of conspiring to aid and abet the violation of a federal statute. Mr. Cullen contends that there is no such crime known to the law.

Title 18 U.S.C. § 2 states that an aider and abettor shall be liable as a principal. The government "agrees that including a reference to this Statute in Count I is unnecessary."

The inclusion of a reference to § 2 was confusing, and, as the government admits, it was unnecessary to the charge against Mr. Cullen. However, as was true of his first motion to dismiss, Mr. Cullen has not alleged prejudice from this error and none appears to the court. The court in United States v. Lynch, 180 F.2d 696, 698 (7th Cir. 1950), stated:

"If the acts charged in the indictment constitute an offense under any statute or statutes of the United States, the omission of a reference to the statute violated or a misreference thereto in the caption of the indictment or in the body thereof does not render the indictment invalid."

Accord, United States v. Roberts, 264 F. Supp. 622, 624 (S.D.N.Y.1966). For failure to show prejudice, Mr. Cullen's second motion to dismiss must be denied.

In his third motion, Mr. Cullen contends that the first count should be dismissed because it does not adequately allege the formation of an agreement to violate the laws of the United States. He argues that the indictment must inform him where the agreement was entered into and how he entered into it. The government contends that such particularity is unnecessary and points out that the indictment has already informed the defendant that the conspiracy existed, where and how long it existed, and that Mr. Cullen was a member of it.

In my opinion, the facts alleged in the indictment are sufficient. In United States v. Brandom, 273 F.Supp. 253, 258 (E.D.Wis.1967), this court observed that an indictment is sufficient

"* * * even though it does not allege with minute particularity the details of the agreement. In United States v. Frank, 290 F.2d 195, 196 (3rd Cir. 1961), the court stated:

`An express agreement is not necessary to prove conspiracy * * * "It is an axiomatic principle of law that a conspiracy charge may be sustained on circumstantial evidence alone".'"

Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 71 L.Ed. 545 (1927); Brown v. United States, 403 F.2d 489, 490 (5th Cir. 1968); Medrano v. United States, 285 F.2d 23, 26 (9th Cir. 1960); United States v. Nomura Trading Company, 213 F.Supp. 704, 706 (D.C.N.Y. 1963); United States v. Bitz, 179 F. Supp. 80, 86 (D.C.N.Y.1959), reversed on other grounds 2 Cir., 282 F.2d 465.

In his fourth and fifth motions to dismiss, Mr. Cullen seeks an order dismissing either count II or count III on the ground that count II is a lesser offense included in count III. Mr. Cullen contends that he cannot be charged with both counts at once. In the alternative, Mr. Cullen moves for an order compelling the government to elect now between the counts.

The government urges that an intelligent choice cannot be made before trial. It also insists that without proof on the point, there is no way to determine whether the destruction of draft records, which constitutes a specific violation of 50 U.S.C.App. § 462(a), also hinders the administration of the Selective Service Act, in violation of 18 U.S.C. § 2071.

The government appears to agree with the defendant that count II is a lesser included offense in count III. However, it is not improper to prosecute a defendant under an indictment which alleges two crimes, one of which includes the other. Forsberg v. United States, 351 F.2d 242, 245 (9th Cir. 1965); Ekberg v. United States, 167 F.2d 380, 385 (1st Cir. 1948).

Even if it could be said that counts II and III were improperly joined, the motions for dismissal would be an inappropriate means of meeting this claimed defect. The proper method of attacking it is by motion for severance, not by motions for dismissal. Kleven v. United States, 240 F.2d 270, 272 (8th Cir. 1957); Finnegan v. United States, 204 F.2d 105, 109 (8th Cir. 1953); Optner v. United States, 13 F.2d 11, 12 (6th Cir. 1926). Cf. United States v. Lugo, 269 F.Supp. 757, 758 (E.D.Wis. 1967), involving misjoinder of parties.

With reference to the defendant's demand for an election, it is noted that in United States v. Solomon, 26 F.R.D. 397, 403 (S.D.Ill.1960), the court stated "A motion to compel election between counts of an indictment is addressed to the sound discretion of the trial court." Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1893); United States v. Harris, 211 F.2d 656, 659 (7th Cir. 1954); United States v. Hunt, 120 F.2d 592, 593 (7th Cir. 1941); Arnold v. United States, 7 F.2d 867, 869 (7th Cir. 1925).

The court in Solomon, supra, 26 F.R.D. p. 403, said:

"Unless it appears that the rights of defendants would be prejudiced and that they would be embarrassed in their defense by the fact of being tried upon multiple charges before the same jury, a court should not compel election between counts properly joined in an indictment."

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