United States v. Halbrook, 21593.

• Citation: 36 F. Supp. 345
• Decision Date: 22 January 1941
• Docket Number: No. 21593.,21593.
• Parties: UNITED STATES v. HALBROOK et al.
• Court: U.S. District Court — Eastern District of Missouri

36 F. Supp. 345

UNITED STATES v. HALBROOK et al.

No. 21593.

District Court, E. D. Missouri, E. D.

January 22, 1941.

Harry C. Blanton, U. S. Dist. Atty., of Sikeston, Mo., and David M. Robinson, Asst. U. S. Atty., of St. Louis, Mo., for plaintiff.

Franklin E. Reagan, of St. Louis, Mo., for defendants.

MOORE, District Judge.

During the March Term, 1940, of this court the Grand Jury returned an indictment against the defendants J. Frank Halbrook and Ralph Swiney. The indictment is in two counts.

The first count charges that the defendant Halbrook, aided and abetted by the defendant Swiney, for the purpose of influencing the action of the Rolla Production Credit Association (a production credit association duly organized and existing under the provisions of 12 U.S.C.A. § 1131d, and amendments thereto), and for the purpose of influencing the Farm Credit Administration, upon an application for a loan made by the defendant Halbrook to the Rolla Production Credit Association, signed and filed with said Credit Association an application for a loan dated December 4, 1938, by means of which said Halbrook sought to obtain from said Credit Association a loan of $6,500, to be secured by a chattel mortgage on certain personal property set forth in said application as belonging to Halbrook and of a certain value. It is charged that such representations of ownership and value were false and made fraudulently, knowingly and willfully by defendants for the purpose of influencing the action of said lending agencies in approving and granting said loan to Halbrook.

The second count charges that defendant Swiney, who was an inspector for the Rolla Production Credit Association, and who took Halbrook's application, aided and abetted by defendant Halbrook, made a false "Field Report", which purported to be based on actual observation by Swiney of the personal property listed in Halbrook's application for a loan. It is charged that the defendant Swiney did not, in fact, inventory, value or inspect the property listed in the field report; that said property was not of the value described therein, nor did said property in truth or in fact exist as the property of Halbrook, as in said field report shown, but that said false representations were knowingly and willfully set forth in said field report for the purpose of influencing the action of the Rolla Production Credit Association and the Farm Credit Administration in approving and granting said loan to Halbrook.

Defendants have filed what they designate as a "Plea in Bar", in which it is requested that this court set aside said indictment and discharge defendants, for the reason that said defendants have previously been tried in this court and acquitted on an indictment charging them with a conspiracy to violate Section 1138d of Title 12, of the United States Code, 12 U.S.C.A. § 1138d, in which indictment the matters covered by the present indictment were set forth, among others, as overt acts committed by defendants pursuant to said conspiracy.

It is contended that to permit prosecution of defendants on the substantive offenses after they have been acquitted of the conspiracy charge in which said substantive offenses were relied upon as overt acts, would be to place defendants in jeopardy twice for the same offense.

This court will take judicial notice of its own records. In re Bennett, D.C. N.D.Cal., 84 F. 324. An examination of the indictment in Criminal No. 21458 reveals that in the fourth count thereof these same defendants were charged with a conspiracy to violate Section 1138d of Title 12, United States Code, 12 U.S.C.A. § 1138d, in that said defendants would willfully make material representations, knowing them to be false, and would overvalue property and security for the purpose of influencing the action of the Rolla Production Credit Association and the Farm Credit Administration upon an application for loan made by defendant Halbrook to said Rolla Production Credit Association. Eight overt acts are set forth, Nos. IV and V being as follows:

"IV. On or about December 4, 1938, the defendant J. Frank Halbrook signed, executed and presented to the Rolla Production Credit Association an application for loan, on Form P. C. A., 6-313, in the amount of Six Thousand Five Hundred ($6500.00) Dollars, the said loan to be made by said Association to the said J. Frank Halbrook, in which application it was represented that the said J. Frank Halbrook was the owner of divers quantities of farm products and livestock."

"V. On or about December 4, 1938, the defendant Ralph Swiney, as Inspector for said Rolla Production Credit Association, filed with said Association a `Field Report', on Form P.C.A. 6-513 rev., whereby the said defendant Ralph Swiney represented to said Association that he, Ralph Swiney, as Inspector for said Association, had inventoried and appraised divers quantities of livestock, farm machinery and farm products, belonging to said J. Frank Halbrook."

It is apparent that the present indictment, which charges defendants with the commission of substantive offenses in violation of Section 1138d(a), of Title 12, United States Code, 12 U.S.C.A. § 1138d (a), covers the same matters set forth in the previous indictment as overt acts Nos. IV and V.

The question presented here has two aspects: (1) Does the acquittal of the defendants on the conspiracy charge bar further prosecution on the substantive offenses which were relied upon, among others, as overt acts in furtherance of the conspiracy, on the ground that such procedure would place defendants twice in jeopardy for the same offense? (2) Is the verdict of not guilty in the former indictment res adjudicata or an estoppel on the question of whether the defendants committed the unlawful acts relied upon by the government in the present indictment?

Taking up, first, the question of double jeopardy, it is plain that a conspiracy to commit an offense and the substantive offense itself are two wholly different and separate crimes. United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211; Enrique Rivera v. United States, 1 Cir., 57 F.2d 816; Westfall v. United States, 6 Cir., 20 F.2d 604. While it is true that the conspiracy statute under which the defendants were prosecuted,¹ Section 37 of the Criminal Code, Section 88, Title 18 U.S.Code, 18 U.S.C.A. § 88, requires in addition to the unlawful agreement the commission by one or more of the parties concerned of an overt act to effect the object of the conspiracy, such overt act is not a part of the conspiracy and may or may not constitute a crime itself. United States v. Britton, 108 U.S. 199, loc. cit. 204, 2 S.Ct. 531, loc. cit. 534, 27 L.Ed. 698: "This offense does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. The provision of the statute, that there must be an act done to effect the object of the conspiracy, merely affords a locus pœnitentiæ so that before the act done either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute."

Before a defendant may successfully interpose a plea of double jeopardy, it is necessary that there be an identity of offenses. In Morgan v. Devine, 237 U.S. 632, 641, 35 S.Ct. 712, 715, 59 L.Ed. 1153, the Supreme Court said: "As to the contention of double jeopardy upon which the petition of habeas corpus is rested in this case, this court has settled that the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes."

In Louie v. United States, 9 Cir., 218 F. 36, the court had before it a similar situation to that presented in the case at bar. By prior indictment, on which the accused was acquitted, he was charged with conspiring with one Ralston to import opium into the United States for smoking, the indictment charging, among other things, as an overt act that Ralston, after formation of the conspiracy and during its continuance, to effect the object thereof, on March 5, 1913, did have in possession, conceal and fraudulently transport into the United States 64 five-tael tins of opium prepared for smoking, contrary to law, etc. By a subsequent indictment against accused, it was charged that on March 5, 1913, Ralston committed the offense of receiving, concealing, buying, selling and facilitating the transportation of the same tins of opium for smoking, after the same had been imported into the United States contrary to law, which in effect was the same overt act charged against Ralston in the first indictment. The second indictment then charged that the accused aided and abetted Ralston in the commission of that offense.

Accused interposed a plea of former acquittal, which was held bad on demurrer. The Circuit Court of Appeals, in sustaining the trial court, said (218 F. at pages 39, 40): "There is plainly a lack of identity in the two indictments with respect to this charge as against the defendant Louie. * * * Congress has provided that if two or more persons conspire to commit any offense against the United States, and one or more of such parties do any act to effect the object of the conspiracy, all of the parties to such conspiracy shall be liable. Congress has also provided that whoever aids or abets another in the commission of an offense against the United States is a principal in the commission of the offense. These are separate and distinct offenses, and the courts are not authorized to hold as matter of law that one who aids and abets another in the commission of the offense is a conspirator, and may plead an acquittal of a conspiracy charge in bar of a prosecution for the other offense."

In People v. MacMullen, 218 Cal. 655, 24 P.2d 793, it was held that an acquittal on a conspiracy indictment was no bar...