United States v. Owen

• Decision Date: 07 November 1887
• Citation: 32 F. 534
• Parties: UNITED STATES v. OWEN and others.
• Court: U.S. District Court — District of Oregon

32 F. 534

UNITED STATES v. OWEN and others.

United States District Court, D. Oregon.

November 7, 1887

Syllabus by the Court

Section 5440, Rev. St., is not limited in its operation to conspiracies to defraud the United States of its 'revenue,' but applies to all conspiracies to deprive the United States of any property or dues by means of misrepresentations or concealment of material facts.

The crime defined in section 5440, Rev. St., is composed of the conspiracy, and an act done in pursuance thereof; and as soon as the one is formed, and the other committed, the crime is consummated, and the statute of limitations begins to run against a prosecution therefor; and in three years thereafter the bar is complete.

Lewis L. McArthur, for the United States.

M. H Y. Thompson and Rufus Mallory, for the defendants.

DEADY J.

The defendants are accused by the grand jury of this district of the crime of conspiring together to defraud the United States out of sundry portions of the public lands in the district of Oregon contrary to section 5440, Rev. St.

The indictment was found on April 12, 1887, and it is alleged therein that prior to July 1, 1881, the defendant Owen had from time to time filed with the proper state board applications for the purchase of swamp and overflowed lands therein described, as soon as the same or any portion thereof should be certified to the state of Oregon under the acts of congress and the regulations of the department of the interior on the subject; that between August 1, 1880, and January 15, 1882, the defendant Ankenny was a special agent of the general land-office, charged with the duty of inspecting, in the field, the swamp and overflowed lands claimed by the state of Oregon under said acts and regulations, and of reporting the result, under oath, to the commissioner of the general land-office; that on July 1 1881, said Owen, Ankenny, and the defendant Barnhart did agree and conspire together to defraud the United States government of sundry parcels of public lands in Oregon amounting to 86,665 acres, and to that end said Ankenny, as said special agent, was to report as swamp and overflowed lands, to which the state of Oregon was entitled, large tracts of the public land, including the lands last aforesaid, which were and are not swamp and overflowed, and endeavor to procure the issue of patents therefor to said state; and said Owen was to procure certificates of purchase from the state for said lands; and said Barnhart was to assist said Owen, by preparing applications for the purchase of said lands from the state, and by producing false preliminary proofs as to the character of said lands, and thereby secure their withdrawal from entry; and that said defendants, and each of them, would use any means available for such purpose, and endeavor to negotiate the sale of said lands; that afterwards, on December 26, 1881, said Ankenny, in pursuance of said unlawful agreement and conspiracy, did make oath to a series of 18 affidavits, wherein he stated that all the lands described therein, to-wit, 97,560 acres, were swamp and overflowed, within the meaning of the act of congress March 12, 1860, on that subject, and on which the secretary of the interior on April 16, 1882, certified the same to the state of Oregon as swamp and overflowed lands, the list thereof being entitled, 'List number five of the Lakeview series of swamp lands,' 33,000 acres of which lands were not swamp or overflowed lands, within the meaning of said act, and did not accrue to the state thereunder,-- all of which was well known to said Ankenny when he made said affidavits.

It is also alleged in the indictment that, later on, other acts were done by the defendants, or some of them, in pursuance of the conspiracy, namely: (1) On December 23, 1881, Owen, with the knowledge of Barnhart, made an agreement with Ankenny and James H. Fisk to sell a large portion of the lands which Ankenny was then about to report, and did on December 26th report, by means of the affidavits aforesaid, as swamp and overflowed. (2) The defendants, between the date of said conspiracy and the finding of the indictment, endeavored, at divers times, to secure the issue of patents for said lands from the United States to the state. (3) On August 24, 1881 September 6, October 9, and 16, November 5, 1883, and December 22, 1884, Owen caused to be filed with said board six specific descriptions of land, containing in the aggregate 621,527 acres, and six applications to purchase the same from the state as swamp or overflowed, well knowing that a large portion thereof was not swamp or overflowed, but public lands of the United States; and on October 9 and November 14, 1883, and March 10, 1885, received certificates of purchase for said lands from the state. (4) On October 31, 1883, Barnhart procured himself to be appointed notary public for Oregon. (5) On September 25, 1884, Barnhart forged three writings purporting to be the joint affidavit of D. M. McMenamy and I. L. Poujade; and, on October 8 of the same year, one other writing, and on October 9th two other writings, purporting to be the joint affidavits of C. C. Loftus and D. R. Jones,-- all of which appear to have been subscribed and sworn to before him as notary, and are to the effect that the lands described in the lists annexed thereto, amounting to 155,600 acres, are swamp or overflowed, the larger portion of which were on March 12, 1860, and ever since have been, dry lands of the United States, and not unfit for cultivation by reason of being swamp or overflowed; which writings were, before December 11, 1884, by Owen, delivered to the governor of the state as proof of the facts therein stated, and by the latter transmitted to the surveyor general of the United States for Oregon, for a like purpose, as said...