United States v. Holmes

• Decision Date: 19 January 1953
• Docket Number: Cr. No. 5332.
• Citation: 110 F. Supp. 233
• Parties: UNITED STATES v. HOLMES.
• Court: U.S. District Court — Southern District of Texas

110 F. Supp. 233

UNITED STATES v. HOLMES.

Cr. No. 5332.

United States District Court S. D. Texas, Corpus Christi Division.

January 19, 1953.

Brian S. Odem, U. S. Atty., and Wm. R. Eckhardt, III, Asst. U. S. Atty., Houston, Tex., for plaintiff.

Norman L. Utter, Corpus Christi, Tex., for defendant.

ALLRED, District Judge.

Defendant was convicted by a jury, on November 18, 1952, of violating 18 U.S. C.A. § 873. On December 23, 1952, his court appointed counsel filed a motion in arrest of judgment, re-urging a motion to dismiss the indictment for failure to state an offense. The motion to dismiss had been filed on November 17th, before selection of the jury. It was overruled by the court with considerable misgivings and counsel were apprised in open court that the court would give it further consideration in the event of a guilty verdict.

Government counsel urges that the motion in arrest of judgment cannot be considered because not filed within 5 days "after determination of guilt" as provided in Rule 34, Federal Rules of Criminal Procedure, 18 U.S.C.A.¹ However, Rule 12 (b)(2) provides that "Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding." The proceeding still is pending—sentence has not even been pronounced.

The indictment charges that defendant:

"* * * under a threat of informing and as a consideration for not informing against one Albert J. Pavia in connection with a certain obscene letter purportedly sent by the said Albert J. Pavia to Laura Holmes, did unlawfully, knowingly and feloniously demand and receive from the said Albert J. Pavia a sum of money, to-wit: the sum of One Thousand Five Hundred Dollars ($1,500.00). (Violation Section 873, Title 18 U.S.Code)." (Emphasis supplied.)

18 U.S.C.A., § 873, alleged to have been violated, reads as follows:

"Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined not more than $2,000 or imprisoned not more than one year, or both." (Emphasis supplied.)

The emphasized portions of the indictment and statute graphically present defendant's contention that no offense is charged. It is to be noted that the indictment does not charge, in the language of the statute, that defendant demanded and received the money under a threat of informing or as a consideration for not informing against a violation of a law of the United States, but only "in connection with a certain obscene letter purportedly sent by the said Albert J. Pavia to Laura Holmes." There is a final reference to the statute alleged to have been violated by defendant. Is this tantamount to charging a threat of informing or not informing "against a violation of a law of the United States?"

An indictment is sufficient which states the essential elements of the offense and advises the defendant with sufficient particularity to enable him to prepare his defense and plead conviction or acquittal in jeopardy. Here the essential elements of the offense are: (1) demanding or receiving money or other valuable thing from a described victim; (2) under a threat of informing, or as a consideration for not informing, against (3) a violation of some law of the United States. The first and second elements are clearly alleged but, as stated, the third is attempted to be covered by "in connection with a certain obscene letter purportedly sent by the said Albert J. Pavia to Laura Holmes."

No law of the United States prohibits the mere sending of an obscene letter to another person, since a letter can be sent by personal messenger or express. 18 U.S.C.A. § 1461 authorizes a fine of not more than $5,000 or five years imprisonment, or both, for knowingly depositing for mailing or delivery, etc., of nonmailable matter (which includes an obscene letter).² While it has been held that it is not necessary to state what particular law has been violated by the person threatened, or that the victim actually has violated a particular law of the United States³ yet in all of the reported cases⁴ the indictment alleged a threat of informing or not informing against a violation of a law or some described law of the United States.⁵ Generally, too, there was an allegation that the defendant threatened to inform or agreed not to inform the proper officers of the alleged violation of such law of the United States—far more in particularity than is present in the case at bar.

Pointing to the evidence that defendant "merely stated in the telegram to Pavia in substance that he had found the letter of January 5th and that he required $1500.00 within 72 hours or he would send the letter to the War Department," Government counsel says, on brief, that "it was not possible for the Government * * * to allege with particularity or to prove exactly what law of the United States the defendant Holmes intended to inform that Pavia had violated." The vice in the indictment is not the failure to allege "with particularity or exactly" what law Holmes intended to inform against, but that it fails to allege informing against a law or any law of the United States, either in the words of the statute or words tantamount to such allegation.

Government counsel argues further:

"Under the facts in this case, Pavia could have been prosecuted for a violation of the Postal Laws * * * in violation of Section 1461, Title 18, United States Code. Actually the letter was finally turned over to the Military Authorities and Pavia was prosecuted and convicted by a Court-martial for violating Sections 727 and 728, Title 50, United States Code. It is to be specially noted that the statutes under which Pavia was convicted are Acts of Congress and, therefore, laws of the United States. (All acts of the Congress are laws of the United States.) There is no reason why the demanding of money under the threat of informing against a law of the United States, punishable by Court-martial, should not come within the purview of Section 873, Title 18, as well as a threat of informing against the violation

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