United States v. Parker

• Citation: 19 F. Supp. 450
• Parties: UNITED STATES v. PARKER et al. (three opinions).
• Decision Date: 26 April 1937
• Court: U.S. District Court — District of New Jersey

19 F. Supp. 450

UNITED STATES v. PARKER et al. (three opinions).

District Court, D. New Jersey.

March 22, 1937.

On Application for Change of Venue April 14, 1937.

On Motion for a Bill of Particulars April 26, 1937.

COPYRIGHT MATERIAL OMITTED

John J. Quinn, U. S. Atty., of Red Bank, N. J., and Hubert J. Harrington, of Newark, N. J., Asst. U. S. Atty., for the United States.

James Mercer Davis, of Camden, N. J., and George S. Silzer, Harry Green, and Harry H. Weinberger, all of Newark, N. J., for defendants.

CLARK, District Judge.

The United States complains of a violation of one of its statutes. That statute is codified as sections 408a and 408c of title 18 United States Code Annotated. They read:

"Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall, upon conviction, be punished (1) by death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed, or (2) if the death penalty shall not apply nor be imposed the convicted person shall be punished by imprisonment in the penitentiary for such term of years as the court in its discretion shall determine: Provided, That the failure to release such person within seven days after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away shall create a presumption that such person has been transported in interstate or foreign commerce, but such presumption shall not be conclusive."

"If two or more persons enter into an agreement, confederation, or conspiracy to violate the provisions of sections 408a and 408b of this title, and do any overt act toward carrying out such unlawful agreement, confederation, or conspiracy, such person or persons shall be punished in like manner as provided for by said sections."

An interesting and scholarly article on the origin and contents of this statute has been prepared by two lawyers in the Department of Justice (where it was drafted). It is to be found in the June, 1935, issue of the New York University Law Quarterly Review and is entitled, "Kidnapping and the So-called Lindbergh Law," by Hugh A. Fisher and Matthew F. McGuire. Its first and last paragraphs graphically describe the character and prevalence of the evil the Congress attempted to correct:

"It was the Lindbergh kidnapping that awakened the American people to the fact that they were face to face with a species of crime so revolting and which had assumed such proportions that it seemed that unless the menace was met fearlessly and with a determination to end it, the very sanction of the criminal law was threatened."

"That the passage of this law has had a most salutary effect in the breaking up of this nefarious traffic is best evidenced by the record (Rep.Att'y Gen. 130, 1934). Since its passage 29 cases of kidnapping have fallen within the investigative action of the Government, resulting in the conviction of 69 persons. The sentences imposed included 16 life sentences, 2 death sentences, and imprisonments totaling 1,139 years, 11 months, and 2 days. Among the defendants, 2 were lynched, 3 committed suicide, and 1 was murdered, while at present 14 persons are in custody awaiting trial — proving, it would seem, the wisdom of Congress in enacting the law and thus threatening the perpetrators of this type of crime with swift, certain, and heavy-handed punishment."

Cf. "The Snatch Racket," by Edward Dean Sullivan, The Vanguard Press, N. Y., 1932.

The government phrases its complaint in the form of an indictment, the legally required manner of accusing of crime. The defendants maintain that they should not be put to trial on this indictment and express their position by the appropriate legal method, namely, demurrer. They say, first, that the physical acts complained of are not described in the Lindbergh Law; second, that the mental acts complained of are not covered by the Lindbergh Law; and, third, that the acts complained of are not set forth in "sufficient detail to properly apprise the defendants of the accusation they must meet."

Defendants' first objection is untimely. Their argument is based on a recent decision of the United States Supreme Court. Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522. In that case, a convicted kidnapper sought to escape punishment on the ground that the Lindbergh Law reaches only cases where the kidnapped person is held for "reward or ransom." This loophole or gap, depending upon the point of view, seems to have arisen because of the legislative selection. The books disclose two types of statutes. The first type includes the words "reward or ransom" and relates to extortion generally; the second prescribes and punishes any "forcible taking away" for whatever purpose. This latter type simply extends the common law. Cf. Blackstone's Commentaries on the Laws of England, vol. 2, pp. 1379, 1380; P. L. New Jersey 1898, § 114, p. 826, as amended P.L. New Jersey 1907, p. 103 (2 Comp.St.N.J.1910, § 114, p. 1783).

Congress in the original Lindbergh Law of June 22, 1932 (47 Stat. 326), selected the former type. By 1934 the inadequacies of the limitation seem to have been apparent and the act was amended (section 408a, title 18 U.S.C.A.). This amendment did not revert to the second or more general type of statute, but merely added the words "or otherwise" after "ransom or reward," thus affording an opportunity for the contention that the curious rule of ejusdem generis applies. Sutherland, Statutes and Statutory Construction, § 422 et seq. The rule itself has been much qualified (Sutherland, Statutes and Statutory Construction, §§ 437-441) and has, in our opinion, no logical application to the adverb "otherwise." Fisher v. City of Astoria, 126 Or. 268, 269 P. 853, 858, 60 A.L.R. 260. The cases holding to the contrary seem to us lacking in grammatical understanding.

However that may be, the indictment at bar on pages 6, 7, and 8 expressly charges a pecuniary benefit to the defendants through the publication of the statements of the allegedly kidnapped person. Unless and until the proof fails to support this allegation, we are not concerned with the question of the intention of Congress as expressed in the adverb.

Defendants' second point seems to have been overlooked in the cases previously adjudicated under the statute. Skelly v. United States (Berman v. United States) (C.C.A.) 76 F.(2d) 483; Bailey v. United States (C.C.A.) 74 F.(2d) 451. It is that the conspiracy to transport must have arisen at some time after and not before the unlawful seizure. Such a contention is in our opinion contrary to one of the two reasons for the existence of the law of conspiracy. A conspiracy by reason of its character as an agreement speaks in the future. It must precede the acts agreed upon. Conspiracies are dangerous to the state because their essence is numbers and premeditation. Many wicked men plotting evil. Where, then, is the logic in shortening the period for planning or in having it begin after the harmful use instead of at any time the wickedness may happen to be agreed upon? Any contrary doctrine gives conspirators an easy out. Let them conspire with sufficient forethought and they are safe. The premeditation, which is the country's peril becomes their excuse.

There is nothing in the statute inconsistent with this common sense principle. Defendants maintain a contrary intendment because of (1) the use of the phrase "shall have been," (2) the inclusion of the prohibition against conspiracies in the statute itself, and (3) the fact that the crime is transporting in interstate commerce a person already seized. The unsoundness of the first two thoughts requires no elaborate exposition. The statute follows the most approved form of draftmanship of criminal statutes and reads in the future. Grammatical perfection and nothing else can be deduced from the use of the future perfect "shall have been." Equally no significance can be attached to the inclusion of the conspiracy section in the statute itself. It is often done (cf. U.S.C.A., title 10, § 1566; title 12, § 1138d (f); title 15, §§ 1, 2, 3, 8; title 18, §§ 6, 51, 54, 80-83, 88, 242, 252, 420a-420e, 487; title 22, § 234; title 26, § 1828(e); title 38, § 715; title 50, § 31-42) either for reasons of convenience or punishment.

Defendants' attempt to claim any legal advantage because the statute strikes at the transportation of a person already seized implies a misunderstanding and indeed a negation of the theory of federal criminal justice. This opinion is not the place to expound our hobby of comparative federalism. Suffice it to say that our Constitution differs from that of most federations in failing to allocate the definition, at least, if not the administration of criminal law to the central government. Cf. Constitution of Australia, chap. 1, art. 51, § 28; Constitution of Canada, chap. VI, § 91, art. 27; Constitution of India, List III, part I, arts. 1-3; Constitution of Germany, part I, art. 7, § 2. The pressure of events as usual has forced the filling of the gap by the convenient, but perhaps slightly shady, method of con amore interpretation. So we find the enumerated powers becoming the vehicle of the very "internal police" specifically objected to by the draftsmen who met on our Mt. Sinai (more widely known as Philadelphia). An interesting account of this process and its expansion is to be found in chapters 7 and 19 of Federal Centralization, by Walter Thompson. The learned author very pertinently observes:

"Congress is not empowered by the Constitution to legislate...