United States v. Jacobs
Decision Date | 28 February 1972 |
Docket Number | No. 30019.,30019. |
Citation | 451 F.2d 530 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Norman JACOBS and George Kastenbaum, Defendants-Appellants. |
Court | U.S. Court of Appeals — Fifth Circuit |
COPYRIGHT MATERIAL OMITTED
Irwin J. Block, Barry N. Semet, Miami, Fla., for Norman Jacobs.
Beckham & McAliley, Max Kogen, Miami, Fla.
Robert W. Rust, U. S. Atty., Miami, Fla., James H. Walsh, Special Atty. Dept. of Justice, Tampa, Fla., Will R. Wilson, Asst. Atty. Gen., Criminal Division, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and PHILLIPS* and INGRAHAM, Circuit Judges.
Rehearing and Rehearing En Banc Denied November 17, 1971.
Certiorari Denied February 28, 1972. See 92 S.Ct. 1170.
George Kastenbaum and Norman Jacobs were charged in a two-count indictment with violations of 18 U.S.C. § 1951.
The first count charged them with a conspiracy to violate § 1951, supra, and the performance of a large number of overt acts, some by Jacobs and some by Kastenbaum, to effect the object of the conspiracy.
The second count charged them with the "attempt" to violate § 1951, supra.1
18 U.S.C. § 1951 in part here pertinent reads as follows:
Count I of the indictment in part here pertinent reads as follows:
It will be observed that the statute reads "actual or threatened * * * fear." That is, in defining the term "extortion" the statute uses the word "actual" and the word "threatened" in the disjunctive. On the other hand, it will be observed that the indictment charges "induced and obtained by the wrongful use of actual and threatened fear." Thus, it will be seen that the indictment uses the word "actual" and the word "threatened" in the conjunctive. As we shall hereafter show, that was proper pleading and it was sufficient if the Government showed a conspiracy to use either actual or threatened fear, since such terms were pleaded in the conjunctive.
The second count of the indictment alleged and incorporated therein paragraphs 1, 2, 3, 4, 5, and 6 of Count I and further alleged:
(Emphasis supplied.)
It will again be observed that while the statute uses the words "actual or threatened * * * fear" in the disjunctive, the indictment charges it in the conjunctive, and what we have said above with respect to Count I applies equally to Count II.
Both of the defendants were convicted on Count I. Kastenbaum was convicted and Jacobs was acquitted on Count II.
Kastenbaum was sentenced to imprisonment for five years on his conviction on Count I and to imprisonment for three years on his conviction on Count II. The sentences imposed on Kastenbaum were to run concurrently.
It will be observed that § 1951, supra, defines three offenses where robbery is not involved, namely, extortion, attempted extortion, and conspiracy to commit extortion or attempted extortion, which obstruct, delay, or affect interstate commerce.2
It will be noted that Count II charges the defendants with "unlawfully and wilfully" attempting to commit extortion by obtaining from Casella "with his consent induced by wrongful use of actual and threatened fear of economic injury."
Here again, we repeat that while the statute in defining the term "extortion" uses the language, "induced by wrongful use of actual or threatened * * * fear," thus using the disjunctive between the words "actual" and "threatened," the indictment uses the conjunctive in its charge. Thus, the use of the conjunctive "and" between the word "actual" and the word "threatened" was the proper way to allege it in the indictment, and it was sufficient if the evidence established either actual or threatened fear. That is especially true because the pleader charged, not extortion, but the substantive offense of "attempt to commit extortion." However, if Jacobs was convicted and sentenced on Count I only and Kastenbaum was convicted on both counts and was sentenced to five years' imprisonment on Count I and only three years' imprisonment on Count II, to run concurrently with the sentence on Count I, if we sustain the conviction on Count I, it is not necessary for us to consider the legality of the conviction on Count II.3
Under § 1951, supra, it is not necessary to show that a person charged with extortion or attempted extortion actually received any benefit.4 A conspiracy to commit one of the substantive offenses defined in the statute and such substantive offense do not merge.5
We now turn to a consideration of the evidence and the determination of whether it supports the conspiracy charge.
In passing on the sufficiency of the evidence to support the verdict of guilty in a criminal case, an appellate court will not weigh conflicting evidence nor consider the credibility of witnesses, and it must view the evidence and the reasonable inferences that may be drawn therefrom in the light most favorable to the prosecution and determine as a question of law whether there is substantial evidence, either direct or circumstantial, to support the verdict.6
Persons who enter into a conspiracy to commit a criminal offense do not do so openly, and generally a conspiracy can be established only by evidence of the attendant circumstances...
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