United States v. Sharpe, 4768.

• Decision Date: 20 June 1945
• Docket Number: No. 4768.,4768.
• Citation: 61 F. Supp. 237
• Parties: UNITED STATES v. SHARPE et al.
• Court: U.S. District Court — Eastern District of Kentucky

61 F. Supp. 237

UNITED STATES v. SHARPE et al.

No. 4768.

District Court, E. D. Kentucky.

June 20, 1945.

Claude P. Stephens, U. S. Atty., and Robert M. Stephenson, Asst. U. S. Atty., both of Lexington Ky., for plaintiff.

E. S. Wiggins, of Richmond, Ky., for defendant Vernon Kimbrough.

FORD, District Judge.

This case is submitted upon a motion filed by the defendant, Vernon Kimbrough, for correction of the judgment pronounced upon him and to vacate the consecutive sentences imposed upon him by this Court on April 28, 1941, upon the three counts of the indictment herein. The first count charged the defendants with a conspiracy to transport in interstate commerce stolen motor cars and to conceal them while moving in such commerce, with knowledge that they had been stolen, and thereby to commit offenses against the United States in violation of section 37 of the Criminal Code, 18 U.S.C.A. § 88. The second count charged the substantive offense of transporting an automobile from Atlanta, Georgia, to Owen County, Kentucky, "then and there well knowing that said automobile had been stolen", in violation of 18 U.S.C.A. § 408. The third count charged receiving, concealing and storing the same automobile with knowledge that it had been stolen, a violation of another provision of 18 U.S.C.A. § 408.

The judgment was entered and sentences imposed upon the defendant's plea of guilty.

The acts set out in count 1 as constituting overt acts to effect the object of the conspiracy are the same acts charged as substantive offenses in counts 2 and 3. Consequently the defendant contends that the same evidence required for conviction under count 1 would also establish the offenses charged in counts 2 and 3, resulting in such identity of offenses that imposition of sentences under counts 2 and 3 constituted double punishment and double jeopardy in violation of the Fifth Amendment of the Constitution of the United States.

The defendant filed a brief pro se which has had the careful consideration of the Court. He has also had the benefit of the services of able counsel appointed by the Court, at his request, who has filed a brief and presented oral arguments in support of defendant's motion.

To establish the offense charged in count 1 requires proof of a common understanding or agreement to commit the offense and an overt act in furtherance thereof, but it is not essential that the overt act be a consummation of the intended crime or in itself a criminal act. The gravamen of the conspiracy charge under count 1 is an agreement or understanding between two or more of the defendants, and "While certain evidence under the two counts is identical, much of the evidence necessary to establish conspiracy is not required nor proper for proof of the substantive charge. Conspiracy involves the element of agreement, of the existence of a single design for the accomplishment of the common purpose. There must be a combination by concerted action to accomplish an unlawful result, or to accomplish a lawful result in an unlawful manner. Such evidence may not be competent to prove the substantive offense." Schmeller v. United States, 6 Cir., 143 F.2d 544, 549.

That conspiracy to commit a crime is a separate and distinct offense from substantive offenses which are the object of the conspiracy and that the conspiracy and the substantive offenses may be separately punished are principles now so thoroughly established as to admit of no controversy. United States v. Rabinowich, 238 U.S. 78. 35 S.Ct. 682, 59 L.Ed. 1211; Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450; Blue v. United States, 6 Cir., 138 F.2d 351, 360; Westfall v. United States, 6 Cir., 20 F.2d 604, 607; and Kelly v. United States, 6 Cir., 258 F. 392.

In dealing with the question here involved, the Circuit Court of Appeals of the Eighth Circuit in Steigleder v. United States, 25 F.2d 959, 960, made the following comprehensive statement of the controlling law upon the subject:

"* * * Plaintiff in error asserts that the same criminal act, or offense, cannot be pleaded as an overt act in a conspiracy count, and also as a separate substantive offense. Or to put it another way: That the facts pleaded separately in counts 2 to 17, respectively, are the same that are pleaded collectively as overt acts in the conspiracy count, and that the same evidence required to convict under any one of counts 2 to 17 will sustain a conviction under the conspiracy count.

"This proposition, variously stated, has been made many times before in the federal courts, and always rejected, and does not justify extended discussion. There are no common-law crimes cognizable in the federal courts and the conspiracy section referred to is purely a creature of statute. It in no sense is a combination of offenses, but a distinct and separate crime. The gravamen of the offense is the formation of a conspiracy, or agreement, to commit an offense against the...