United States v. Falcone, No. 42

CourtUnited States Supreme Court
Writing for the CourtSTONE
Citation311 U.S. 205,61 S.Ct. 204,85 L.Ed. 128
Decision Date09 December 1940
Docket NumberNo. 42
PartiesUNITED STATES v. FALCONE et al

311 U.S. 205
61 S.Ct. 204
85 L.Ed. 128
UNITED STATES

v.

FALCONE et al.

No. 42.
Argued Nov. 18, 1940.
Decided Dec. 9, 1940.

Messrs. Robert H. Jackson, Atty. Gen., and O. John Rogge, Asst. Atty. Gen., for petitioner.

Page 206

Mr. Daniel H. Prior, of Albany, N.Y., for respondents Salvatore Falcone and Joseph Falcone.

Mr. Roger O. Baldwin, of Syracuse, N.Y., for respondent Henry Alberico.

Mr. Justice STONE delivered the opinion of the Court.

The question presented by this record is whether one who sells materials with knowledge that they are intended for use or will be used in the production of illicit distilled spirits may be convicted as a co-conspirator with a distiller who conspired with others to distill the spirits in violation of the revenue laws.

Respondents were indicted with sixty-three others in the Northern District of New York for conspiring to violate the revenue laws by the operation of twenty-two illicit stills in the vicinity of Utica, New York. The case was submitted to the jury as to twenty-four defendants, of whom the five respondents and sixteen operators of stills were convicted. The Court of Appeals for the Second Circuit reversed the conviction of the five respondents on the ground that as there was no evidence that respondents were themselves conspirators, the sale by them of materials, knowing that they would be used by others in illicit distilling, was not sufficient to establish that respondents were guilty of the conspiracy charged. 109 F.2d 579. We granted certiorari, 310 U.S. 620, 60 S.Ct. 1075, 84 L.Ed. 1393, to resolve an asserted conflict of the decision below with those of Courts of Appeals in other circuits. Simpson v. United States, 4 Cir., 11 F.2d 591; Pattis v. United States, 9 Cir., 17 F.2d 562; Borgia v. United States, 9 Cir., 78 F.2d 550; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975; see Backun v. United States, 4 Cir., 112 F.2d 635. Compare Young v. United States, 5 Cir., 48 F.2d 26.

All of respondents were jobbers or distributors who, during the period in question, sold sugar, yeast or cans,

Page 207

some of which found their way into the possession and use of some of the distiller defendants. The indictment while charging generally that all the defendants were parties to the conspiracy did not allege specifically that any of respondents had knowledge of the conspiracy, but it did allege that respondents Alberico and Nole brothers sold the materials mentioned knowing that they were to be used in illicit distilling. The Court of Appeals reviewing the evidence thought, in the case of some of the respondents, that the jury might take it that they were knowingly supplying the distillers. As to Nicholas Nole, whose case it considered most doubtful, it thought that his equivocal conduct 'was as likely to have come from a belief that it was a crime to sell the yeast and the cans to distillers as from being in fact any further involved in their business'. (109 F.2d 582.) But it assumed for purposes of decision that all furnished supplies which they knew ultimately reached and were used by some of the distillers. Upon this assumption it said, 'In the light of all this, it is apparent that the first question is whether the seller of goods, in themselves innocent, becomes a conspirator with—or, what is in substance the same thing, an abettor of—the buyer because he knows that the buyer means to use the goods to commit a crime.' And it concluded that merely because respondent did not forego a 'normally lawful activity, of the fruits of which he (knew) that others (were making) an unlawful use' he is not guilty of a conspiracy.

The Government does not argue here the point which seems to be implicit in the question raised by its petition for certiorari, that conviction of conspiracy can rest on proof...

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346 practice notes
  • U.S. v. Gaviria, Nos. 95-3124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 27, 1997
    ...F.2d 1384, 1393 (D.C.Cir.1988) (Government must prove that defendant shared common goal with other conspirator); United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 206, 85 L.Ed. 128 (1940) ("Those having no knowledge of the conspiracy are not conspirators."). The Government contends......
  • U.S. v. Brandon, Nos. 92-1447 and 92-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 7, 1993
    ...the intent to further, promote, and cooperate in that illegal purpose. Id.; United States v. Falcone, 109 F.2d 579, 581 (2d Cir.), aff'd., 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). The district court did not give the defendants' proffered instruction but instead instructed the jury t......
  • U.S. v. Jeter, No. 84-5453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 11, 1985
    ...other two required conspiracy elements of 1) an alleged overt act in furtherance and 2) an alleged agreement. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 Jeter argues that the government failed to present sufficient evidence establishing that someone else conspired wi......
  • U.S. v. Burgos, Nos. 93-5899
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 23, 1996
    ...is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided."), aff'd, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). In short, reliance on "elastic, ad hoc principles" allows for conspiracy convictions to be based on no more th......
  • Request a trial to view additional results
345 cases
  • U.S. v. Gaviria, Nos. 95-3124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 27, 1997
    ...F.2d 1384, 1393 (D.C.Cir.1988) (Government must prove that defendant shared common goal with other conspirator); United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 206, 85 L.Ed. 128 (1940) ("Those having no knowledge of the conspiracy are not conspirators."). The Government contends......
  • U.S. v. Brandon, Nos. 92-1447 and 92-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 7, 1993
    ...the intent to further, promote, and cooperate in that illegal purpose. Id.; United States v. Falcone, 109 F.2d 579, 581 (2d Cir.), aff'd., 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). The district court did not give the defendants' proffered instruction but instead instructed the jury t......
  • U.S. v. Jeter, No. 84-5453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 11, 1985
    ...other two required conspiracy elements of 1) an alleged overt act in furtherance and 2) an alleged agreement. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 Jeter argues that the government failed to present sufficient evidence establishing that someone else conspired wi......
  • U.S. v. Burgos, Nos. 93-5899
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 23, 1996
    ...is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided."), aff'd, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). In short, reliance on "elastic, ad hoc principles" allows for conspiracy convictions to be based on no more th......
  • Request a trial to view additional results
1 books & journal articles
  • FEDERAL CRIMINAL CONSPIRACY
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...(6th Cir. 1997); United States v. Reynolds, 919 F.2d435, 439 (7th Cir. 1990).52. 18 U.S.C. § 371; see, e.g., United States v. Falcone, 311 U.S. 205, 210–11 (1940) (“Those having noknowledge of the conspiracy are not conspirators.”); United States v. Nguyen, 493 F.3d 613, 618 (5th Cir. 2007)......

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