United States v. Greene

• Decision Date: 13 April 1906
• Citation: 146 F. 803
• Parties: UNITED STATES v. GREENE et al.
• Court: U.S. District Court — Southern District of Georgia

146 F. 803

UNITED STATES v. GREENE et al.

United States District Court, S.D. Georgia.

April 13, 1906

[Copyrighted Material Omitted]

Marion Erwin, U.S. Atty., Samuel B. Adams and Thomas F. Barr, Sp Assts. to U.S. Atty., and Alexander Akerman, Asst. U.S. Atty.

William Garrard, Peter W. Meldrim, William W. Osborne, and Alexander A. Lawrence, for defendants.

SPEER District Judge (charging jury).

A grand jury drawn conformably to law from the judicial division and district having jurisdiction has presented three indictments against the prisoners. The indictments are numbered 322, 371 and 476. The first was returned December 8, 1899, the second February 28, 1902, and the third November 18, 1905. The accused indicted in the three indictments are Benjamin D. Greene, John F. Gaynor, William T. Gaynor, Edward H. Gaynor, Michael A. Connolly, and Oberlin M. Carter. Of the persons named, Benjamin D. Greene and John F. Gaynor are on trial. The indictments have been consolidated, the accused have pleaded not guilty to the charges made, and thus the issues are formed which you are to determine. The indictments will be before you. They have been read or sufficiently explained. It is, however, proper that the court shall direct your attention to the substance of the charges made in the several counts.

Conspiracy to defraud the United States is one of the alleged crimes. It is made in indictments 322 and 371. It is made punishable by section 5440 of the Revised Statutes (U.S. Comp. St. 1901, p. 3676):

'If two or more persons conspire either to commit any offense 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, all the parties to such conspiracy shall be liable to a penalty of not less than $1,000, and not more than $10,000, and to imprisonment not more than two years.'

Before this statute becomes applicable two or more persons must conspire to commit an offense against the United States, or to defraud the United States in some manner, or for some purpose. Having thus conspired, if one or more of such parties do an act to effect the object of the conspiracy, all the parties to the conspiracy shall be liable to the penalty. While this statute denounces conspiracy, it does not define it. It is an agreement of two or more persons to accomplish an unlawful purpose, or a lawful purpose by unlawful means. The essence of this offense is the unlawful combination. In union there is strength. This is true of combinations to do wrong as of combinations to do right. One man may desire, and even plan, to commit crime; but, where several agree to a common criminal design, the probability of their success, and therefore of injury to society, is largely enhanced. For this reason the mere act of conspiracy, the mere unlawful agreement, was indictable by the common law and is indictable in many, if not all, of the states. It is, however, true that the legislation of Congress, to which we must look exclusively for the definition of crimes of which we have jurisdiction there provides that one or more of the parties to the conspiracy must do some act to effect its object before it becomes punishable by national law.

Your inquiry as to this charge will be: First, was there the conspiracy as charged? If you find there was, you will next inquire: Was any act done by one or more of the parties to such conspiracy to effect its object? Such acts need not be the acts of the alleged conspirators actually on trial, but finding the conspiracy you may consider such acts of either one or more, or all the persons indicted, to ascertain if any act to effect the object of the conspiracy was done.

Now, why does Congress require something to be done before an unlawful agreement is indictable? It is because of the humanity of our laws. Under the English law, the mere conspiracy was indictable; but by the law of our general government, quoted, the conspirators may conspire all they please, provided that none of them do anything to carry out the object about which they conspire. In other words, it was the purpose of Congress to give them what is termed the locus penitentiae; that imports an opportunity or point at which they may repent and abandon their unlawful purpose. But when anything is done by one of the conspirators to effect its object, it is regarded by our law as such an aggravation of the conspiracy that there is no longer a place for repentance, and the penalties of the statutes attach.

How may a conspiracy be proved? By witnesses to the agreement itself, or by proof of facts from which the jury may infer it. Rare indeed are the cases where a conspiracy can be proven by witnesses who heard it made. From its very nature, it is a secret or furtive agreement. Indeed, a famous writer upon criminal law, Mr. Archibald, declares that:

'A case cannot be easily imagined in which a conspiracy can be expressly proven, unless where one of the persons implicated in the conspiracy consents to be examined as a witness for the prosecution.'

A conspiracy, however, is more dangerous to the public on this very account. It follows, in nearly all cases, that the charge of conspiracy is supported by proof of facts from which the jury may fairly infer it. You have already gathered from what I have said that, where several parties conspire or combine together in conspiracy, each is criminally responsible for any act of his associate, or associates, done to effect the object of the crime. In such cases, in contemplation of law, the act of one is the act of all. One person alone cannot be convicted of conspiracy. Two may be. One may be, provided that another or others also indicted are shown to be guilty with him. It is also true that, upon the trial of charges of this character, where the prosecution depends upon inferences to be drawn from facts, great latitude of proof must be allowed. 'The jury,' said the Supreme Court of the United States 'should have before them every fact which will enable them to come to a satisfactory conclusion, and it is no objection that the evidence covers a great many transactions and extends over a long period of time, provided, however, that the facts have some bearing upon and tendency to prove the ultimate fact in issue.

Having, as I think, sufficiently for the purposes of your inquiry explained the crime of conspiracy in general, it now becomes my duty to attempt to make plain the particular conspiracy with which the prisoners are here charged. While there are three indictments and many counts, all of which you must consider, for the purposes of condensation and brevity, at present I direct your attention to indictment No. 371. This indictment, in language appropriate in a legal sense, charges that on the 1st day of January, 1897, Benjamin D. Greene, John F. Gaynor, William T. Gaynor, Edward H. Gaynor, Michael A. Connolly, and Oberlin M. Carter did conspire to defraud the United States of large sums of money. It is alleged that persons indicted had devised a fraudulent scheme for this purpose. This scheme, the indictment recites, on or about the year 1891, was first concocted and put in operation, and had been 'continuously in process of execution,' until renewed in the conspiracy entered into at the date mentioned in 1897. It is further charged that the conspiracy and acts done to effect its object continued thereafter in process of execution by the alleged conspirators.

The charge of conspiracy is, in substance, as follows: Oberlin M Carter was an officer of the corps of engineers of the United States Army. From about 1888 until about the 20th of July, 1897, he was, as such engineer officer, in charge of what is called the Savannah district. His duty involved the execution of river and harbor improvements in the district mentioned. In this capacity he was vested with power, duty, and discretion to propose projects for the improvement of rivers and harbors, and projects for the expenditure of money appropriated by Congress for this purpose. It was his duty to devise and draft specifications for contracts for such improvements. His was the duty and discretion to recommend the acceptance of such contracts by his superior officers, to draft and suggest forms of advertisements, and to fix the period in which these should be published, and thus to give notice to the public that competitive bids would be received by him for the construction of the works proposed. His also was the power of suggesting and fixing the period in such contract specifications, within which a successful bidder would be required to commence work. He had the duty to give out information in regard to contracts to be let, to receive proposals for contracts, to recommend the award of the same, to approve or reject the bonds required of contractors, to superintend their work, to approve or reject the same as it might be in accordance with the requirements of the contract or otherwise, to suggest and recommend modifications of such contracts to be made by the Secretary of War, in certain cases without competitive bids and without public advertisement. He had also power and duty to approve or reject the accounts rendered to him by contractors for work done or claimed to have been done by them. It was his duty to approve such accounts if they were fair and honest, and to reject them if they were false or fraudulent. He was the disbursing officer of the government for all the purposes of his work, and when the funds therefor had been appropriated and set apart for the work of his district, he was vested with the power, duty, and discretion to pay the contractors, if their claims for work done were honest and fair, and to refuse to pay them if such...