United States v. Kendzierski, 39527.

• Decision Date: 24 January 1944
• Docket Number: No. 39527.,39527.
• Citation: 54 F. Supp. 164
• Parties: UNITED STATES v. KENDZIERSKI et al.
• Court: U.S. District Court — Eastern District of New York

54 F. Supp. 164

UNITED STATES v. KENDZIERSKI et al.

No. 39527.

District Court, E. D. New York.

January 24, 1944.

Harold M. Kennedy, U. S. Atty., and Albert V. DeMeo, Asst. U. S. Atty., both of Brooklyn, N. Y., for the Government.

Aaron Sofer, of New York City (Sol Gerstein, of New York City, on the brief), for defendant Anthony Frank Kendzierski, alias Tommy King.

Morris M. Bornfreund, of New York City, for defendant Albert Richel.

MOSCOWITZ, District Judge.

The three defendants were indicted under 18 U.S.C.A. § 88 for conspiracy to defraud the United States. The defendant Ted Cotler pleaded guilty and the other two defendants were permitted by the Court on motion to withdraw their previous pleas of not guilty pending the determination of the present application.

The defendants Kendzierski and Richel have now moved this Court for an order quashing the said indictment as to them on grounds which may be summarized as follows:

(1) That the indictment does not set forth any crime, for the reason that it does not contain the allegations essential as a matter of law to the crime charged.

(2) That the indictment is too vague and indefinite to be effectual protection to the defendants against being put in jeopardy for the same offense again at a subsequent date.

(3) That the various rules and regulations promulgated by the price administrator, upon which this indictment is founded, are unconstitutional.

The defendant Kendzierski has moved for permission to add to this last ground the words "and/or invalid", which motion is hereby granted.

The substance of the first ground appears in the following quotation taken from defendants' memoranda. It is there stated (p. 4):

"Every conspiracy hinges upon some preconceived plot or plan. The plan outlines the modus operandi agreed to be taken by the conspirators in their nefarious undertaking. The Courts have consistently held, that the mere allegation of a conspiracy without setting forth clearly and succinctly the essentials of the illegal agreement is insufficient to charge the crime of conspiracy.

"There first must be an agreement to do certain illegal acts before a conspiracy is established. Unless preceding the acts there was an agreement to perform those specific acts, the acts themselves would be no evidence of a conspiracy."

The next seven pages are devoted to cases sustaining these statements, heaviest reliance being placed on the Hamner case (Hamner v. United States, 5 Cir., 134 F.2d 592), which was a prosecution under the same statute, where the Court in quashing the indictment stated (134 F.2d at page 595): "Confused allegations of what the defendants did are by a sort of inference sought to be made allegations of what they conspired to do * * *. What was done is often good evidence of what was agreed to be done, but to allege such evidence is not an allowable substitute for a clear statement of the agreement which is proposed to be proven." But the defendants' suggestion that the present case is controlled thereby evidences that they have misread the indictment by which they are accused. Far from being analogous to the Hamner indictment, it would appear that the instant indictment may well have been drawn with an eye to avoiding the very defect there revealed. The second and third paragraphs of this indictment (as set forth in the accompanying footnote¹) do not relate to acts done in pursuance of the agreement but are clearly allegations of what comprised the conspiracy itself, viz.—what the participants agreed to do, namely, that they "would unlawfully buy, obtain", etc., and that they "would give, sell, and distribute" etc. What the defendants actually did thereafter to effect the object of this conspiracy is set forth in the latter part of the indictment as Overt Acts. The indictment sufficiently sets forth the crime charged and is not defective on the first ground asserted.

On the second ground, the cases which the defendants cited are not pertinent to a charge of conspiracy to defraud the United States. While the indictments in those cases were held defective for not setting forth times, places or circumstances of the crimes charged with sufficient detail and particularity, the offenses of which the defendants were there accused were all substantive,² as contrasted to the instant charge of conspiracy.

The Supreme Court has recently ruled on objections to indictments similar to those raised by these defendants. In Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed. 680, the Court said: "The particularity of time, place, circumstances, and causes, etc., in stating the manner and means of effecting the object of a conspiracy for which petitioners contend is not essential to an indictment. Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392; Dealy v. United States, 152 U.S. 539, 14 S.Ct. 680, 38 L.Ed. 545. Such specificity of detail falls rather within the scope of a bill of particulars." And in Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545, the Court...