United States v. Johnson

Decision Date16 September 1964
Docket NumberNo. 9223.,9223.
Citation337 F.2d 180
PartiesUNITED STATES of America, Appellee, v. Thomas F. JOHNSON, J. Kenneth Edlin, and William L. Robinson, Appellants.
CourtU.S. Court of Appeals — Fourth Circuit

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George Cochran Doub, Baltimore, Md. (Weinberg & Green, Baltimore, Md., on brief), for appellant Thomas F. Johnson.

William L. Robinson, pro se.

Eugene Gressman and Edward L. Genn, Washington, D. C. (Brown, Genn & Brown, Washington, D. C., on brief), for appellant J. Kenneth Edlin.

J. Hardin Marion, III, Special Asst. U. S. Atty., and Arthur L. Burnett, Attorney, Department of Justice (Robert W. Kernan, First Asst. U. S. Atty., and David Ellenhorn, Attorney, Department of Justice, on brief), for appellee.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and BUTZNER, District Judge.

Certiorari Granted January 25, 1965. See 85 S.Ct. 703.

SOBELOFF, Chief Judge.

Two members of the United States Congress and two other persons were jointly indicted for violations of both the conspiracy statute, 18 U.S.C.A. § 371, and the conflicts of interest statute, 18 U.S.C.A. § 281.1 After a jury trial the four defendants were convicted. One, Frank W. Boykin, a Representative from Alabama, paid his fine and has not appealed. This is the appeal of Representative Thomas F. Johnson of Maryland, and J. Kenneth Edlin and William L. Robinson.

The indictment was in eight counts. The first charged a conspiracy "to defraud the United States * * * (a) Of * * * its right to have * * * the official business of the Department of Justice, conducted honestly * * *. (b) Of * * * its right to have * * personnel of the Department of Justice, free * * * of * * * unlawful, improper and undue pressure * * *. (c) Of * * * its right to have the lawful functions and duties of the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN * * * free from corruption * * *. (d) Of * * its right not to be deprived of the faithful, loyal and conscientious services of the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN * * *."2 This count alleged that as part of the conspiracy Johnson was paid to make a speech in Congress and to persuade officials of the Department of Justice to cause the postponement and eventual dismissal of a criminal action then pending against Edlin.

The remaining seven counts charged Johnson with the substantive offenses of receiving payment for representing Edlin before the Justice Department. 18 U.S. C.A. § 281. In these counts Robinson and Edlin were charged as aiders and abettors.

I. THE INDICTMENT

A. FIRST COUNT — CONSPIRACY

The appellants attack the validity of count one on two broad fronts. First, they say that in general conspiracy indictments should not be tolerated because of the abuses which they engender. Second, they contend that this particular indictment is defective in a number of ways.

1. Alleged Invalidity of Conspiracy Indictments

The appellants' criticism of conspiracy indictments is not wholly without foundation. They are not the first to express the view. Similar statements can be found in concurring and dissenting opinions in the Supreme Court and in a number of Law Review articles. Krulewitch v. United States, 336 U.S. 440, 445-448, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Kotteakos v. United States, 328 U.S. 750, 760-774, 66 S.Ct. 1239, 70 L.Ed. 1557 (1946). Goldstein, "Conspiracy to Defraud the United States," 68 Yale L.J. 405 (1958). The dragnet effect of conspiracy indictments, their sometime indiscriminate use and the unfair advantage they may give to the prosecution in respect to evidence and proof are well known. While this is true, the Supreme Court has not said that conspiracy indictments as such are improper; convictions based upon them have been repeatedly upheld. The net effect of the Court's expressions of concern is an admonition to scrutinize carefully the allegations of such indictments and the proof adduced in their support.

2. Specific Attacks on First Count
a. Vagueness and indefiniteness

The appellants insist that count one is indefinite and vague and fails to inform them of the charge alleged. Our reading of the count does not confirm this contention. The count alleges a conspiracy "to defraud the United States." Subparagraphs (a) to (d) of paragraph 14, summarized above, enumerate four governmental functions and rights which are alleged to have been defrauded. It was not necessary to allege that the Government had been defrauded of money or property. Section 371 has consistently been interpreted to support an indictment charging that a lawful function of the Government has been interfered with or obstructed. Hammerschmidt v. United States, 265 U.S. 182, 44 S.Ct. 511, 68 L.Ed. 968 (1924); Curley v. United States, 130 F. 1 (1st Cir.), cert. denied, 195 U.S. 628, 25 S.Ct. 787, 49 L.Ed. 351 (1904); Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569 (1910).

Paragraphs 15 to 25 of count one state the objects and purposes of the conspiracy. Thereafter 75 overt acts are alleged. Contrary to the appellants' contentions, the indictment did not give the Government carte blanche to introduce evidence and frame any imaginable purpose of the conspiracy. In plain and concise language the paragraphs 15 to 25 effectively define the objects and delineate the proof. This is all that Rule 7(c)3 of the Rules of Criminal Procedure requires. See May v. United States, 175 F.2d 994 (D.C.Cir.), cert. denied, 338 U.S. 830, 70 S.Ct. 58, 94 L.Ed. 505 (1949); United States v. Manton, 107 F.2d 834 (2d Cir. 1938), cert. denied, 309 U.S. 664, 60 S.Ct. 590, 84 L.Ed. 1012 (1940).

b. Duplicity

Because count one alleges both Johnson's speech and his discussions with members of the Justice Department, the appellants maintain that it is duplicitous. The short and, we think, sufficient answer is that the indictment charges only one conspiracy — to defraud the United States — and this is not changed by the assertion of more than one means used to accomplish the object. "The conspiracy is the crime, and that is one, however diverse its objects." Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 252, 63 L.Ed. 561 (1919).4

c. Alleged insufficiency of allegations charging fraud

We must also reject the argument that count one was fatally defective because it failed to charge any false statement, misrepresentation or deceit. In Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924), the Supreme Court defined the word "defraud" as used in what is now section 371:

"To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest." (Emphasis added.)

Since Hammerschmidt, numerous cases have held that the payment of money by a private person to an official of the Government for the performance of an official act constitutes a fraud. United States v. Manton, supra; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); May v. United States, supra; United States v. Bowles, 183 F.Supp. 237 (S.D.Me.1958). Glasser really closed the debate. There the Court, citing Hammerschmidt, said:

"The indictment charges that the United States was defrauded by depriving it of its lawful governmental functions by dishonest means; it is settled that this is a `defrauding\' within the meaning of section 371 of the Criminal Code." 315 U.S. at 66, 62 S.Ct. at 463.

The indictment in paragraphs 15 to 25 explicitly stated that it was a part of the conspiracy for appellant Johnson to receive compensation from appellants Edlin and Robinson. Manifestly this is a "dishonest means," in the Hammerschmidt phrase, and is sufficient to support an indictment under section 371.

d. The alleged impossibility of defrauding the Justice Department

Appellant Edlin contends that the conspiracy count must fail because it was impossible to defraud the United States in connection with the criminal charge pending against him. His position is that it was not within the power of the Department of Justice to effectuate a postponement of the trial or a dismissal of the indictment, because that power was solely in the court. The argument is specious: It is true that the court's consent would be required to dismiss a pending charge, Rule 48(a), Fed. R.Crim.P., but in a practical sense, as the Department is in charge of the prosecution, its decision to postpone a trial, or even to abandon a case, has great, if not decisive, influence with the court.

e. Congressional privilege

Appellant Johnson's principal contention is that insofar as the indictment questions his motivation in making a speech on the floor of the House, it contravenes Article I, section 6 of the Constitution.

"The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." (Emphasis added.)

This is the first case, within our knowledge, squarely raising the question whether the congressional privilege deprives a court of jurisdiction to try a member on a criminal charge of accepting money to make a speech in the House of which he is a member.

The history of the parliamentary privilege is a long and turbulent one, developed in the course of conflict between Parliament and the Crown as to the proper subjects of discussion on the floor of Parliament.5 The Crown asserted that matters then...

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