United States v. Fine, 70-Cr-126.
| Decision Date | 29 April 1976 |
| Docket Number | No. 70-Cr-126.,70-Cr-126. |
| Citation | 413 F. Supp. 728 |
| Parties | UNITED STATES of America, Plaintiff, v. David Sylvan FINE, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
David C. Mebane, U. S. Atty., Madison, Wis., for plaintiff.
Shellow & Shellow, by James Shellow, Stephen Glynn, Milwaukee, Wis., for defendant.
DECISION and ORDER
The defendant David Fine has filed motions to dismiss the indictment in the above action, to dismiss various counts thereof, for disclosure or in the alternative to dismiss various counts of the indictment, and for a bill of particulars. In addition, the government and the defendant have both filed motions dealing with the discovery of various matters. This opinion is addressed only to those motions which are directed at the indictment in this action. The discovery motions will be dealt with in a separate opinion.
The defendant filed two motions to dismiss the five-count indictment in this action on the grounds of discriminatory enforcement and discriminatory selection of grand jurors. These motions have been abandoned by the defendant and will not be considered.
The defendant has moved to dismiss count one, the conspiracy count, on the ground that it fails to state an offense cognizable under the laws of the United States. The defendant contends that count one fails to state a violation of 18 U.S.C. § 371 in that it fails to aver the essential elements of the substantive offenses alleged to be the object of the conspiracy. I believe that this motion should be denied.
It is clear that the object alleged in a § 371 conspiracy count must be an offense against the United States, if the indictment is to be valid. United States v. Clay, 495 F.2d 700, 710 (7th Cir. 1974). The question at issue in this motion is to what degree of precision the substantive offenses must be alleged.
The court of appeals for the seventh circuit analyzed the tests for the sufficiency of conspiracy indictments in United States v. Kahn, 381 F.2d 824, 829 (7th Cir. 1967), cert. denied 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967), rehearing denied 392 U.S. 948, 88 S.Ct. 2272, 20 L.Ed.2d 1413 (1963), and stated:
A similar analysis was stated by this court in United States v. Brandom, 273 F.Supp. 253, 258 (E.D.Wis.1967):
See also, United States v. Grizaffi, 471 F.2d 69 (7th Cir. 1972).
The government argues that Davis v. United States, 253 F.2d 24 (6th Cir. 1958), provides the appropriate standard for determining whether the allegations clearly identify the substantive offense. That decision indicates that a conspiracy count is sufficient if it refers to a specific section of the statutes even if it does not allege all elements of the substantive offense which is the object of the conspiracy. See also United States v. Mixon, 374 F.2d 20 (6th Cir. 1967). This standard for the sufficiency of conspiracy indictments has been rejected in this circuit. United States v. Calhoun, 257 F.2d 673, 680 (7th Cir. 1958). See United States v. Wabaunsee, 528 F.2d 1 (7th Cir. 1975).
The applicable test is stated in Kahn, supra:
The decision in Kahn also states at page 830:
The court explained its rationale in footnote 3, page 830:
Another aspect of the standard for examining the sufficiency of indictments is noted at page 829 of the Kahn decision:
I believe that when count one of the instant indictment is read as a whole, it is sufficient to allege a conspiracy in violation of 18 U.S.C. § 371. Count one charges the defendant with conspiring to commit offenses against the United States which consist of "injuring by means of a destructive device the Mathematics Research Center and property contained in Sterling Hall at the University of Wisconsin." The indictment lists the statutory sections of the following offenses which are asserted to be the objects of the conspiracy: (1) injuring property of the United States 18 U.S.C. § 1361; (2) using a firearm to commit a felony prosecutable in a court of the United States 18 U.S.C. § 924(c); and (3) possessing an unregistered firearm 26 U.S.C. §§ 5861(d) and 5871.
The defendant argues that count one fails to allege that "the Mathematics Research Center and the property contained in Sterling Hall at the University of Wisconsin" are property of the United States, and that the "destructive device" allegedly used to injure the Mathematics Research Center and property in Sterling Hall was not registered. These are essential elements of the substantive offenses alleged as objects of the conspiracy.
Count one alleges several overt acts and incorporates by reference "each and all of the several acts" described in counts two, four and five of the indictment. Those incorporated allegations aver that the defendant "willfully and by means of a destructive device did injury property of the United States, to wit: an accelerator and computer, thereby causing damage in excess of One Hundred Dollars ($100.00) in violation of Title 18, United States Code Sections 1361 and 2," and that the defendant "willfully and knowingly possessed a firearm, to wit, a destructive device which had not been registered . . . in violation of Title 26, United States Code, Section 5861(d) and 5871 and Title 18, United States Code, Section 2." I believe that these allegations, incorporated by reference into count one, sufficiently allege the elements of the substantive offenses which the defendant argues are not alleged at all in that count.
This conclusion is not inconsistent with my decision in United States v. Balistrieri, 346 F.Supp. 341 (E.D.Wis.1972), that two of the three acts charged as the objects of an alleged conspiracy did not constitute offenses against the United States. One of the objects charged in that case was avoiding the registration requirements of 26 U.S.C. § 7011(a), in violation of 26 U.S.C. § 5603(a)(1). Avoiding the requirements of § 7011(a) was not and could not be a violation of § 5603(a)(1), since the latter statute was limited in applicability to a different set of regulatory provisions. Accordingly, the allegations, on their face, were insufficient to constitute offenses against the United States. The second object charged which was found to be insufficient in Balistrieri involved a violation of 26 U.S.C. § 7206(1), which requires as an essential element that the defendant lack belief in the truth and correctness of representations made and filed on certain forms. There were no allegations as to that essential element in the conspiracy count, nor any allegations in that count which could be construed to imply that element. Here, the overt acts are explicitly incorporated into the conspiracy count and are sufficient to meet the standards for alleging the objects of a conspiracy.
Accordingly, the defendant's motion to dismiss count one of the indictment will be denied.
The defendant filed a motion to dismiss count two of the indictment on the grounds that count two is a lesser included offense within count four and the indictment is therefore multiplicitous, and that count two "fails to apprise the defendant adequately of the offense with which he is charged in that it neither specifies which computer was damaged, nor which accelerator was damaged, nor the location of either of these." The defendant has withdrawn the first ground for the motion so only the second ground...
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