United States v. Quinn, Cr. No. 43081.

• Decision Date: 17 November 1953
• Docket Number: Cr. No. 43081.
• Citation: 116 F. Supp. 802
• Parties: UNITED STATES v. QUINN et al.
• Court: U.S. District Court — Eastern District of New York

116 F. Supp. 802

UNITED STATES v. QUINN et al.

Cr. No. 43081.

United States District Court E. D. New York.

November 17, 1953.

Corcoran & Kostelanetz, New York City, by Boris Kostelanetz, Millard & Greene, New York City, by Myron Greene, New York City, and Henry G. Singer, Brooklyn, for defendants, for the motion.

F. Kirk Maddrix & Victor Woerheide, Sp. Assts. to Atty. Gen., for the United States, in opposition.

RAYFIEL, District Judge.

On April 9, 1953, I denied a motion by the defendants to dismiss an eight-count indictment charging the defendant T. Vincent Quinn with violating section 281 of Title 18, U.S.C., and his codefendants, Martin Schwaeber and James D. Saver, with aiding and abetting him in such violation. The grounds urged on said motion were: (1) that the indictment does not state facts sufficient to constitute an offense against the United States, and (2) that the statute on which the indictment is based is vague and ambiguous, and hence unenforceable.

Thereafter the defendant Quinn sought and obtained leave to re-argue the motion, urging, inter alia, that the indictment is defective since it contains neither a specific averment of criminal intent nor words charging or signifying scienter. The remaining points raised by the defendant on the re-argument were repetitious or in amplification of those advanced on the original motion, all of which, counsel's apparent doubt notwithstanding, were carefully weighed and considered in the determination of the original motion. Those not specifically referred to in the decision were deemed to be lacking in merit. It then was and still is the Court's opinion that the statute involved is not vague and indefinite, as claimed by the defendant, and that the indictment sets forth with more than adequate particularity and clarity the "matters" pending in the Government agencies and departments in which the defendant Quinn is alleged to have appeared for compensation. Further, the averments set forth in the indictment cover all of the essential elements contained in the statute. This Court's probably gratuitous observation that the statute does not prohibit the appearance by the defendant Quinn, a lawyer-congressman, in a "case or proceeding" is not inconsistent, as counsel intimates, with the opinion that the indictment is adequate, since there is nothing therein to indicate that the "matters" involved were in fact "cases or proceedings".

The defendant, again apparently relying on that observation, argues that the indictment is defective in that it does not state that the "matters", etc., involved in the defendant Quinn's appearances before the agencies or departments in question were not "cases or proceedings". Such an averment would be necessary only if the statute contained an applicable exceptive provision, as was the situation in the cases cited by the defendant in support of his position.

The defendants, in contending that the language of the indictment is lacking in adequate detail and fails to meet the requirements of Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S. C.A., ask the Court to "compare the sparse allegations (of the instant indictment) * * * with the meticulous details set forth in the indictment * * * in Burton v. United States," (a mail fraud case) 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057. The latter indictment, in the opinion of this Court, is unnecessarily prolix, a situation so common in such cases as to have prompted the observation by the late Judge Medalie, when discussing Rule 7(c), that the "typical mail fraud indictment reads on interminably".

The only point raised on the re-argument which had not been urged on the original motion was the claim that the indictment contains no averment of intent, and hence is defective. The defendant stated that he had conferred with Mr. McInerney, then chief of the criminal division of the office of the Attorney General of the United States, as to his right to appear before an agency or department of the Government, and had been assured that such an appearance would not be an impropriety. Neither the substance of such a conference nor even the fact that it was held could be considered by this Court since it was obliged to confine itself to the facts set forth in the indictment.

The defendant cites the case of U. S. v. McMillan, D.C., 114 F.Supp. 638, in support of his position that intent is a necessary element of the crime charged under section 281 of Title 18, U.S.C. In that case Judge Kennedy (trial by jury was waived) did not hold that intent was a necessary ingredient of the offense. He found, rather, that since the indictment, perhaps unnecessarily, charged the defendant with criminal intent, the Government was obliged to prove it on the trial.

In the...