United States v. Konovsky

• Decision Date: 09 March 1953
• Docket Number: No. 10672,10673.,10672
• Citation: 202 F.2d 721
• Parties: UNITED STATES v. KONOVSKY. UNITED STATES v. BRANI et al.
• Court: U.S. Court of Appeals — Seventh Circuit

202 F.2d 721 (1953)

UNITED STATES v.KONOVSKY.

UNITED STATES v.BRANI et al.

Nos. 10672, 10673.

United States Court of Appeals Seventh Circuit.

March 9, 1953.

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John D. Knodell, Jr., and Floyd E. Thompson, Chicago, Ill.(Johnston, Thompson, Raymond & Mayer, Chicago, Ill., of counsel), for appellant.

Otto Kerner, Jr., U. S. Atty., Chicago, Ill. Leo F. Tierney, Chicago, Ill., Charles B. Murray, Asst. Atty. Gen., Henry Putzel, Jr., James X. Kilbridge, Attys., Department of Justice, Washington, D. C., for United States.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Erwin Konovsky, Superintendent of Police of the Town of Cicero, on December 13, 1951, was charged in Count 1 of two counts of an indictment with having conspired with certain named other persons and still others said to be "unknown to the grand jurors", in violation of 18 U.S.C. § 371, to commit an offense against the United States, namely, to deprive, in violation of 18 U.S.C. § 242, Negro inhabitants of certain rights, privileges and immunities secured to them by the Constitution and laws of the United States.In Count 2 Konovsky and Brani and Lange, police officers, were charged with a substantive violation of Section 242.The jury found Konovsky guilty upon both counts, and Brani and Lange guilty upon Count 2.Each was sentenced to pay a fine and costs.From these judgments, the three defendants have prosecuted their appeals.

In view of our disposition of the issues presented, we deem it unnecessary to narrate in detail the voluminous evidence introduced in the trial of a cause which reflected grave factual questions concerning alleged racial discrimination and disgraceful rioting on the part of private persons, but shall content ourselves with the observation that, after careful consideration, the evidence, considered by us, as it must be, in the light most favorable to the Government, was in the absence of procedural error, adequate to sustain the verdicts.

Defendants zealously insist that the trial court erred in denying their motion to dismiss the indictment.Specifically and essentially Count 1 charged Konovsky, three other named defendants, with whom we are not now concerned, and certain other named conspirators who were not made defendants, with having conspired to commit an offense against the United States, that is to say, that in the conspiracy, they, while acting under the color of laws statutes, ordinances and regulations in force in the Town of Cicero, Illinois, intended "willfully and knowingly" to subject and cause to be subjected "any Negro inhabitant of the United States who might then or thereafter seek to lease to or from any person, or to occupy, hold, possess, own or enjoy access to any real property in the said Town of Cicero, and in particular the premises in the said town known as 6139 West 19th Street, to the deprivation of the rights (1) not to be deprived of liberty or property without due process of law, (2) not to be denied the equal protection of the laws * * *, and (3) the right to lease real property to or from any person, and the right to occupy, hold, possess, own or enjoy access to real property free from restraint or hindrance imposed by anyone acting under color of law, otherwise than as provided by law * * * and, while acting under color of law as aforesaid, together with the alleged co-conspirators * * * named, and divers * * * other persons whose identities were to the Grand Jurors unknown", * * * willfully to "prevent, hinder, impede and restrain any Negro inhabitant of the United States who might then or thereafter seek to lease to or from any person, or to occupy, hold, possess, own or enjoy access to any real property in the Town of Cicero and in particular the premises in the said Town known as 6139 West 19th Street, from doing so, all for the purpose and with the intent of depriving any such Negro inhabitant of the constitutional rights aforesaid."This count, argues defendant Konovsky, did not charge a crime, or sufficiently inform him of the charge against him, so as to enable him to prepare a defense or to plead former jeopardy in the event of a subsequent prosecution.Defendant expressly disclaims any contention that the person "whose rights are the object of the conspiracy must be named in the indictment" or "that it is not a crime to conspire against the existing rights held by a defined class or group of persons", but urges that the right deprivation of which is forbidden under Section 242 must be the right of some identified or identifiable inhabitant and not the right of some "conjectural" or possible inhabitant not identified in the indictment.

Of course a charge that parties have conspired in violation of Section 371 must include a showing that the object of the conspiracy is to commit an offense under the laws of the United States.United States v. Britton, 108 U.S. 199, 205-207, 2 S.Ct. 531, 27 L.Ed. 698;Brown v. United States, 5 Cir., 21 F.2d 827, 828;United States v. Eisenminger, D.C.Del., 16 F.2d 816, 818.So in the present case, Count 1, in order to be valid must charge a conspiracy to commit a defined offense.This it attempted to do in the language above quoted.Consequently the question in this respect is whether, in view of defendant's concession that the person whose rights are the object of the conspiracy need not be named in the indictment and that the crime may be committed by conspiring against the existing rights of a defined class, the language of the indictment defines a class or group of persons sufficiently.

The conspiracy count charges that the object of the alleged conspirators was to subject or cause to be subjected "any Negro inhabitant" of the United States who might then or thereafter seek to lease, occupy, possess, or enjoy access to any property in the Town of Cicero, and particularly 6139 West 19th Street to deprivation of any right to do so.To our mind, this language means essentially just the same as if the indictment had charged that the alleged participants conspired to subject all Negro inhabitants of the United States who seek to lease, occupy, possess or enjoy access to property in Cicero, and particularly, the specific premises mentioned, to deprivation of the rights enumerated.Paraphrasing still further, we think a fair construction of Count 1 is that the parties named are charged therein with conspiring, under color of law, intentionally and willfully, to deprive all Negro inhabitants of the United States of the constitutional right to have, own or enjoy any property in Cicero and to restrain all such inhabitants from leasing, owning or enjoying any property in Cicero and in particular the premises at 6139 West 19th Street.

Stripped of all excessive verbiage, this is the essence of the count and, thus considered, we think it defines sufficiently the class or group of persons who are to suffer the deprivation charged and amounts to a charge of conspiring to commit an offense against the United States, namely, to violate 18 U.S.C. § 242.These are direct averments that the conspirators planned to prevent any Negro from living or enjoying property in Cicero.Examples of the validity of an indictment charging conspiracy against similarly defined classes are to be found in United States v. Stone, D.C. Md., 188 F. 836;Culp v. United States, 8 Cir., 131 F.2d 93andUnited States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368.Analogous cases, having to do with the protection of civil rights under Section 241, include United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341;United States v. Pleva, 2 Cir., 66 F.2d 529;United States v. Clark, D.C.W.D. Mo., 19 F.Supp. 981;Crolich v. United States, 5 Cir., 196 F.2d 879, certiorari denied344 U.S. 830, 73 S.Ct. 36.

In Count 2 all three defendants were charged with the violation of Section 242 in that, under color of law, they willfully subjected and caused to be subjected one Harvey Evans Clark, Jr., a Negro inhabitant of the State of Illinois, and a lessee of Apartment 5-C in the premises known as 6139 West 19th Street in Cicero, to the deprivation of the following rights secured to him and protected by the Constitution of the United States, namely, "the rights (1) not to be deprived of liberty or property without due process of law and (2) not to be denied the equal protection of the laws, which rights include the right to lease real property from another and the right to occupy, hold, possess and enjoy access to real property free from restraints or hindrances imposed by anyone acting under color of law, otherwise than as provided by law; that is to say, at the time and within the jurisdiction aforesaid, the said defendants did by force and threats of force, and with the purpose and intent of depriving him of the aforesaid constitutional rights, prevent the said Harvey Evans Clark, Jr., from entering, occupying as tenant and having peaceful possession and access to Apartment 5-C in the premises known as 6139 West 19th Street in the said Town of Cicero, Illinois."This count defendants urge "is deficient in that it does not allege essential elements of the crime"; in that certain averments are mere legal conclusions; in that the count fails to inform the defendants of what statute or ordinance they are charged with having acted under, so that defendants are left "completely in the dark as to the capacity in which they are alleged to have been acting and as to the source of authority they are alleged to have been exercising."Thus is is argued that there is no positive averment that Clark had a lease on or any right to enter any apartment.We think the criticism is over-meticulous.The count seems to us to charge directly a violation of the express terms of Section 242, reading as follows: "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of...