United States v. Fogel

• Decision Date: 23 July 1926
• Parties: UNITED STATES v. FOGEL et al.
• Court: U.S. District Court — District of Minnesota

22 F.2d 823 (1926)

UNITED STATES v. FOGEL et al.

District Court, D. Minnesota, Third Division.

July 23, 1926.

M. E. Evans, of Cleveland, Ohio, for the United States.

John P. Kyle, of St. Paul, Minn., for defendant Sell.

JOHN B. SANBORN, District Judge.

This matter came on to be heard on the 19th day of July, 1926, at a special term of this court held in the city of St. Paul, Minn., upon the application of the defendant John M. Sell for a writ of habeas corpus to determine the validity of his commitment by Samuel Whaley, United States commissioner, to the custody of the United States marshal for removal to Cleveland, Ohio, for trial, and upon the application of the government for a warrant authorizing removal of said defendant to Cleveland, Ohio, for trial.

John M. Sell is one of the defendants named in an indictment returned by the federal grand jury for the Eastern division of the Northern district of Ohio, at the February term of the District Court for that division in the year 1926, charging him and some 111 other defendants with the crime of conspiracy to violate the National Prohibition Act (27 USCA). The defendant Sell is a resident of Minnesota, and, for the purpose of securing his commitment and removal for trial in Ohio, he was brought before Samuel Whaley, United States commissioner, who, after a hearing, issued an order of commitment. It is claimed on behalf of the defendant Sell that the indictment does not state a public offense, that the court to which removal is sought has no jurisdiction of the offense, and that there is no probable cause for believing that the defendant is guilty of the offense charged.

The indictment appears to be sufficient. In the case of Baker v. United States, a decision by the Circuit Court of Appeals for the Fifth Circuit, 285 F. 15, it was held that an indictment for conspiracy need not allege the exact time or place of the conspiracy or of the overt act, where the facts alleged are sufficient to show an offense not barred by time and within the jurisdiction of the court, and that an allegation that a conspiracy was formed within the district need not be proved where it is alleged and proved that overt acts were committed within the district, citing Brown v. Elliott, 225 U. S. 393, 32 S. Ct. 812, 56 L. Ed. 1136, and Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614.

The decision in the case of Brown v. Elliott, supra, was by a divided court. It appeared that petitions for writs of habeas corpus to discharge the appellants from custody of the United States marshal for the Northern district of California had been dismissed. The appellants were held under a warrant of removal made by the District Court. The indictment was in the District Court of the Omaha Division of the District of Nebraska, for the crime of conspiracy. It charged that the place of the conspiracy was unknown, but alleged an overt act in Omaha. The court affirmed the dismissal of the petitions. Mr. Justice Holmes, in the dissenting opinion, said:

"But it is alleged that the place where the conspiracy was formed is unknown, no place is laid for its continuance, and the petitioners are not shown to have been engaged in it in Omaha or ever to have been in the place."

It is apparent, therefore, that the situation there was in many respects similar to that presented here.

In the case of Hyde v. United States, supra, it was held that, as the overt act gives jurisdiction for trial, it is not essential where the conspiracy was formed so far as the jurisdiction of the court in which the indictment was found is concerned. In that case it was charged that the conspiracy was formed in the District of Columbia. The evidence upon the trial proved it to have been in California, but, overt acts having been committed in the District of Columbia, it was held that the case was properly triable there, and the conviction was sustained.

In Robinson v. United States, 172 F. 105 (C. C. A. 8th Cir.), the indictment charged a conspiracy formed in Chicago and Cincinnati, and overt acts in Minnesota. The case was tried in Minnesota, and it was held to have been properly tried in that place.

In the present case, it is claimed that the indictment is too indefinite to advise the defendant of the crime of which he is charged. The conspiracy is alleged to have been formed in various places, some known and some unknown,...