United States v. Smith, Crim. A. No. 28835.

• Decision Date: 13 April 1964
• Docket Number: Crim. A. No. 28835.
• Citation: 228 F. Supp. 345
• Parties: UNITED STATES of America v. William James SMITH.
• Court: U.S. District Court — Eastern District of Louisiana

228 F. Supp. 345

UNITED STATES of America v. William James SMITH.

Crim. A. No. 28835.

United States District Court E. D. Louisiana, New Orleans Division.

April 13, 1964.

Louis R. Lucas, Asst. U. S. Atty., for plaintiff.

C. Paul Barker of Dodd, Hirsch, Barker & Meunier, New Orleans, La., for defendant.

Crim. A. No. 28835, Division B.

FRANK B. ELLIS, District Judge.

During the summer of 1962 a carpenter's union was attempting to organize certain employees of the American Tent Company plant in Canton, Mississippi. The defendant, William James Smith, was a representative of that union. On July 5, 1962, defendant sent a letter to the law firm of Kullman & Lang in New Orleans, La. This law firm represented the American Tent Company (company) as labor counsel. In brief, the letter informed labor counsel that defendant possessed information concerning company's supplying of sub-standard materials under a contract with the United States Army Quartermaster Corps, and, as consideration for not reporting this alleged fraud on the government, defendant requested the reinstatement of three discharged employees. A Federal Grand Jury returned a one-count indictment against the defendant under 18 U.S.C. § 873, charging blackmail. At arraignment the defendant entered a plea of not guilty and in due course filed a motion to dismiss the indictment.

Defendant bases his argument in support of the motion on two basic premises, first, that the indictment is so vague and indefinite as to violate the principles of due process by not clearly stating the alleged crime he is accused of committing, and thereby preventing him from preparing an adequate defense, and secondly, that the indictment's ambiguity fails to prevent the defendant from being subjected to possible double jeopardy. In support of these two basic contentions defendant raises several separate points each of which requires careful consideration and analysis, especially since there is only meager reported case law interpreting the federal blackmail statute.

The Supreme Court in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), has restated the basic test against which an allegedly defective indictment is to be measured.

"These criteria are, first, whether the indictment `contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet,"' and, secondly, `"in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction."'" (Citations omitted) 369 U.S. at 763-764, 82 S.Ct. at 1047, 8 L.Ed.2d 240.

Even though the old common law rules of technical criminal pleadings are obsolete and need not be followed in the federal courts,¹ it is still necessary for the indictment to include a "plain, concise and definite written statement of the essential facts constituting the offense charged." Rule 7(c), Federal Rules of Criminal Procedure, 18 U.S.C.A. Moreover, there has been no relaxation of the rule requiring an indictment to set forth all of the elements of the offense sought to be charged. United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Wilson v. United States, 158 F.2d 659 (5 Cir. 1947) cert. den. 330 U.S. 850, 67 S.Ct. 1095, 91 L.Ed. 1294. To that end, while it is essential that every ingredient of the offense must be alleged with precision and certainty², the failure to state every fact concerning the offense does not destroy the entire pleading. Hanf v. United States, 235 F.2d 710 (8 Cir. 1956) cert. den., 352 U.S. 880, 77 S.Ct. 102, 1 L.Ed.2d 81. To require any extensive recitation of facts in the indictment itself would be favoring form over substance and would ignore both the wording of Rule 7(c) and the intent to simplify the form of indictment expressed by the Advisory Committee on Federal Criminal Rules.³

Essentially then, a comparison must be made, in light of the alleged offense, between the statute and the indictment to determine whether the aforementioned tests of procedural due process have been satisfied. The statute in question is the federal blackmail provision, 18 U.S.C.A. § 873:

"Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined not more than $2,000 or imprisoned not more than one year, or both."

In analyzing this statute it is evident that it defines two distinct types of activity which constitute blackmail, one being the "receiving" of some valuable thing, and the other the mere "demand" for a valuable thing. Since the indictment fails to specify that the defendant actually received anything of value, this Court agrees with defendant's contention that he is charged with merely making a "demand". Even a cursory inspection of the indictment supports this contention:

"The Grand Jury charges: That on or about July 5, 1962, at New Orleans, Louisiana, in the New Orleans Division of the Eastern District of Louisiana, one WILLIAM JAMES SMITH did knowingly and willfully demand a thing of value as a consideration for not informing against a violation of the laws of the United States in that, to-wit: on or about the date aforesaid the said WILLIAM JAMES SMITH did request in a letter sent to New Orleans, Louisiana, to the attorneys for the American Tent Company, the re-employment of certain discharged employees of said company as a consideration for not reporting certain information concerning alleged fraud in a contract between the American Tent Company and the Quartermaster Corps of the United States Army; all in violation of Title 18 United States Code, Section 873."

To the extent, then, that the indictment charges only one of the two possible offenses under the statute, it is specific and definite.⁴

Removed of its portions herein irrelevant, the statute makes it a crime to demand any valuable thing as consideration for not informing on a violation of a law of the United States. Putting it another way, blackmail "supposes the service to be unlawful and the payment to be involuntary."⁵ Thus it appears that the elements of the crime charged under the federal blackmail statute are coercion and an unlawful consideration.⁶

This conclusion is buttressed by notable authority:

"In some jurisdictions the offense (extortion) is not described as extortion when committed by a private person, but as `blackmail', which is generally defined as the * * * obtaining of value from a person as a condition of refraining from making an accusation against him, or disclosing some secret calculated to operate to his prejudice." (Citing 18 U.S.C. § 873) 3 Anderson, Wharton's Criminal Law and Procedure, 794 § 1396 (1957 ed.)

3 Anderson, Wharton's Criminal Law and Procedure, 794, § 1396 (1957 ed.). So long as the indictment clearly charges these two elements of the crime, then, it must be held sufficient. In examining the phraseology in the indictment, the parties are in accord that the document must be read as a whole. Imperial Meat Co. v. United States, 316 F.2d 435 (10 Cir. 1963); see also 4 Barron & Holtzoff, Federal Practice and Procedure, § 1913 n. 22 (Rules Ed. 1963 Supp.).

Considering first the element of "coercion", the indictment sets forth the allegation that defendant demanded a thing of value as consideration for not informing against a violation of United States laws. Since "coercion" is the compelling of an act or choice under force, threat, or other pressure, it is clear that the element of "coercion" is charged in the indictment.

Secondly, and in addition, the consideration offered must have been unlawful. The indictment specifies that defendant's consideration was "not reporting certain information concerning alleged fraud in a contract between the American Tent Company and the Quartermaster Corps of the United States Army." The Quartermaster Corps is an agency of the United States, and any fraud perpetrated upon that agency is punishable by up to five years' imprisonment under 18 U.S.C. § 1001. Furthermore, it is a felony as defined by 18 U.S.C. § 1. Moreover, anyone having knowledge of the commission of a felony cognizable by a court of the United States must report such information as soon as possible or himself be guilty of a crime.⁷ The indictment states that the defendant had knowledge of a fraud and that he offered to withhold that information. Such consideration is thus unlawful, and comprises the second element of the blackmail here charged.

Without more then, it can be said that the indictment charged defendant with all of the necessary elements of the crime. From such a complete charge defendant should be able to adequately prepare his defense. Since the indictment also specifies with clarity and conciseness the date of the letter, and, in general terms, the addressee and contents, the defendant has ample protection in the record from any possible double jeopardy in regards this alleged blackmail.⁸ However, further discussion of defendant's specific objections is necessary to clarify the holding here that the indictment is sufficient.

Defendant alleges that the indictment is fatally defective since it charges that defendant only made a "request" when the statute requires that a person must have made a "demand" to be guilty of blackmail. Defendant, for purposes of this contention, insists that technical accuracy and concise definition are an absolute necessity when construing the indictment. However, when reading the indictment as a whole, it is obvious that in the first clause it charges defendant with having made a "demand", and only in a later "to wit" clause is there a reference to defendant having made a "request". Viewing the indictment in its entirety it is apparent that the first clause paraphrased the statute and the "to wit" clause paraphrased the letter...