United States v. Galleanni

• Decision Date: 09 October 1917
• Docket Number: 1268.
• Parties: UNITED STATES v. GALLEANNI et al.
• Court: U.S. District Court — District of Massachusetts

245 F. 977

UNITED STATES v. GALLEANNI et al.

No. 1268.

United States District Court, D. Massachusetts.

October 9, 1917

The United States Attorney, for the United States.

Pettine & De Pasquale, of Providence, R.I., for defendants.

MORTON District Judge.

This is an indictment in three counts: The defendants have demurred to each. Many grounds of demurrer are assigned; but as to each count the substantial question is whether the facts therein alleged constitute a crime.

The first and third counts allege, in substance, that the defendants conspired to counsel, command, and induce large numbers of persons subject to registration under the act of May 18, 1917, not to register, and to procure such persons to commit the offense of willfully and unlawfully failing to register. In pursuance of the conspiracy, the defendants are alleged to have caused to be published, in a newspaper called 'Cronaca Sovversiva,' a certain statement (a translation of which is set out in the indictment) calculated to induce persons not to register. Neither of these counts charges that any person subject to registration failed to register because of the defendants' acts.

The second count charges a conspiracy to cheat and defraud the United States by counseling, commanding, and inducing a large number of persons subject to registration, etc., not to register, and alleges the publication of the same newspaper statement in pursuance of such conspiracy.

The act referred to (section 5) requires the persons therein specified to register in accordance with regulations to be prescribed by the President, and makes it a misdemeanor for any person subject to registration willfully to fail or refuse to present himself therefor. Criminal Code, Sec. 37 (Comp. St. 1916, Sec. 10201), provides as follows:

'If two or more persons conspire either to commit any offence against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years or both.'

Discussing first the sufficiency of count 2: The United States was entitled to have persons subject to registration perform their duty and register according to law; and a conspiracy to prevent their doing so was a conspiracy to deprive the United States of a right to which it was entitled, and therefore to defraud it, within the meaning of section 37. Haas v. Henkel, 216 U.S. 462, 30 Sup.Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112; Curley v. United States, 130 F. 1, 64 C.C.A. 369. The failure to incorporate into the indictment an exact copy of the statement, the publication of which is alleged as an overt act done in pursuance of the conspiracy, is not a good ground of demurrer, either as to this or as to the other counts. United States v. Grunberg (C.C.) 131 F. 137 (C.C. 1st Cir.). This count properly charges a crime; and the demurrer to it must be overruled.

As to counts 1 and 3: The object of the conspiracy described in each of these counts was the mere counseling and persuasion of persons subject to registration, not to register. If willful failure or refusal to register is...