United States v. Manton

• Decision Date: 04 December 1938
• Docket Number: No. 111.,111.
• Citation: 107 F.2d 834
• Parties: UNITED STATES v. MANTON et al.
• Court: U.S. Court of Appeals — Second Circuit

107 F.2d 834 (1938)

UNITED STATES v.MANTON et al.

No. 111.

Circuit Court of Appeals, Second Circuit.

December 4, 1938.

COPYRIGHT MATERIAL OMITTED

John E. Mack, of Poughkeepsie, N. Y. (William E. Leahy and Wm. J. Hughes, Jr., both of Washington, D. C., and E. Donald Wilson, of New York City, of counsel), for appellant Manton.

Harry E. Ratner, of New York City, (John J. Sweedler, of New York City, of counsel), for appellantGeorge M. Spector.

John T. Cahill, U. S. Atty., of New York City(Mathias F. Correa, Frank H. Gordon, Silvio J. Mollo, and Robert L. Werner, Asst. U. S. Attys., all of New York City, of counsel), for the United States.

Before STONE and SUTHERLAND, Circuit Justices, and CLARK, Circuit Judge.

SUTHERLAND, Circuit Justice.

This is an appeal from a judgment in pursuance of a verdict of conviction upon an indictment charging the above named defendants, together with William J. Fallon, John L. Lotsch, and Forrest W. Davis, with a conspiracy to obstruct the administration of justice and to defraud the United States.The statutes to be considered in connection with the indictment are §§ 88and241,Title 18, U.S.Code,18 U.S.C.A. §§ 88,241, printed in the margin.¹Each of the three defendants last named pleaded guilty.

The indictment names as defendants Manton, Spector, Fallon, Lotsch and Davis, and alleges that they, together with Archie M. Andrews, now deceased, Alfred F. Reilly and Almon B. Hall, and divers other persons to the grand jurors unknown, conspired to commit offenses against the United States, to wit: corruptly to endeavor to influence, obstruct and impede the due administration of justice in suits pending before certain courts of the United States; and to defraud the United States of and concerning its right to have the lawful functions of the judicial power of the United States exercised and administered free from unlawful impairment and obstruction, and more particularly its right to the conscientious, faithful, disinterested and unbiased judgment and action of the defendant Manton as the Senior Circuit Judge of the United States Circuit Court of Appeals for the Second Circuit free from corruption, partiality, improper influence, bias, dishonesty and fraud.

The indictment further alleges that Manton was a stockholder in, or wholly or substantially owned or controlled, a number of corporations, some of which are named; that Fallon was an intimate acquaintance of Manton; that the conspirators knew that certain cases would be, during the course of the conspiracy, pending in and before the Circuit Court of Appeals for the Second Circuit and certain district courts; that several cases, named and described, were pending from time to time in these courts between the years 1930 and 1939, in the decision of which Manton participated; that it was a part of the conspiracy that Fallon would hold himself out as intimately acquainted with Manton and would represent to litigants and parties interested in these and other cases that, by reason of such association and intimacy, he could and would procure action favorable to such litigants and parties; that Fallon would seek out litigants and parties interested in these cases and would be sought by them for the purpose of having Fallon procure such action, in virtue of Manton's office, position, power and influence; that Manton would accept and receive and agree to accept and receive sums of money as gifts, loans and purported loans in return for such action, and would corruptly act in each of these cases without regard to the merits.

The indictment sets forth, and alleges the particulars of, twenty-eight distinct overt acts committed in pursuance of the conspiracy and participated in by Manton and one or more of the other conspirators.

Manton demurred to the indictment and entered a motion to quash on the grounds: (1) that the indictment charged not one single conspiracy but a number of separate and distinct conspiracies in one count, (2) that the indictment did not state an offense, (3) that more than one crime was charged in the indictment.Both the demurrer and motion to quash were overruled.

The case was tried before the district court and a jury and resulted in a verdict of conviction against both appellants, upon which final judgments were rendered imposing imprisonment and fine.From these judgments appellants have separately appealed to this court.The cases have been separately presented, and we shall separately consider them.

The Case of Manton.

The appellant Manton assails the judgment upon several grounds, which, so far as necessary to be considered, may be epitomized as follows:

1.That the court erred in overruling the demurrer to the indictment and motion to quash;

2.That the evidence fails to connect him with any conspiracy and the court erred in refusing his request to instruct the jury to acquit;

3.That his motions to strike out testimony of certain witnesses were erroneously denied; and that evidence was improperly admitted against his objection;

4.That his cross-examination upon collateral matters was so unfairly conducted as to require a reversal;

5.That the court erred in refusing certain requests to charge the jury and in respect of some instructions actually given;

6.That the conduct of the trial and the charge to the jury were so hostile and unfair as to require a reversal.

First.Manton's contention is that the indictment sets forth in one count a number of distinct conspiracies; that is to say, that the allegations in respect of each of the suits set forth a separate and distinct conspiracy.But this confuses the conspiracy, which was one, with its aims, which were many.The indictment charges a general conspiracy, continuous in operation and single in character, having relation to no particular litigation, but constituting an agreement between Manton and Fallon by the terms of which, without limit as to time, Fallon was to seek out litigants and parties, whether then known or unknown, who were interested in suits, then or thereafter pending, and, in effect, represent to each of them that Manton would accept sums of money in return for corrupt judicial action by him favorable to the interests of those who paid.In short, the conspiracy to obstruct the administration of justice and to defraud the United States was to be consummated by sale of judicial action to all willing to pay the price.That this was a single continuing offense and not a number of distinct offenses is settled by numerous decisions.

Harvey v. United States, 2 Cir., 23 F.2d 561, presented a similar situation.There, in a single count, the indictment charged defendants, who were prohibition agents, with having conspired together and with other persons to obtain evidence of violations of the National Prohibition Act in order to seek and to receive bribes to influence their official acts.Evidence having been admitted of several distinct acts of the kind covered by the conspiracy, it was contended that this amounted to the admission of evidence of distinct conspiracies; but the court held the evidence to be proper, saying that it was competent to prove several offenses committed by the conspirators pursuant to their general criminal scheme.

The conspiracy constitutes the offense irrespective of the number or variety of objects which the conspiracy seeks to attain, or whether any of the ultimate objects be attained or not.Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278.Mr. Justice White, speaking for the Court in that case, concisely stated the rule, by saying (207 U.S. page 447, 28 S.Ct. page 170, 52 L.Ed. 278): "The conspiracy is the offense which the statute defines, without reference to whether the crime which the conspirators have conspired to commit is consummated."The indictment in that case charged that the defendants had conspired to suborn a large number of persons to commit perjury in proceedings for the purchase of public lands.The indictment was held good, although the persons to be suborned were not stated or the times or places particularized.It was not essential, the Court said, that these particulars should have been agreed upon since the criminality of the conspiracy charged consisted in the unlawful agreement to compass a criminal purpose.

The offense becomes complete when the agreement is made.The only effect of the requirement that an overt act shall be shown is to permit an abandonment of the conspiracy in the meantime and the consequent avoidance of the penalty which the statute imposes."This offense does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone.The provision of the statute, that there must be an act done to effect the object of the conspiracy, merely affords a locus pœnitentiæ, so that before the act done either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute."United States v. Britton, 108 U.S. 199, 204, 205, 2 S.Ct. 531, 534, 27 L.Ed. 698.

United States v. Kissel, 218 U.S. 601, 607, 31 S.Ct. 124, 54 L.Ed. 1168, distinctly recognizes the rule that a conspiracy exists as soon as the agreement is made but may continue beyond the time of making it."But when the plot contemplates", the Court said (218 U.S. page 607, 31 S.Ct. page 126, 54 L.Ed. 1168)"bringing to pass a continuous result that will not continue without the continuous co-operation of the conspirators to keep it up, and there is such continuous co-operation, it is a perversion of natural thought and of natural language to call such continuous co-operation a cinematographic series of distinct conspiracies, rather than to call it a single one."And again (218 U.S. page 608, 31 S.Ct. page 126, 54 L.Ed. 1168): "A conspiracy is constituted by an agreement, it is true, but it is the result of the agreement, rather than the agreement itself, just as a partnership, although...