United States v. Suchman

• Decision Date: 27 June 1962
• Docket Number: Crim. No. 25875.
• Citation: 206 F. Supp. 688
• Parties: UNITED STATES of America v. Robert F. SUCHMAN.
• Court: U.S. District Court — District of Maryland

206 F. Supp. 688

UNITED STATES of America v. Robert F. SUCHMAN.

Crim. No. 25875.

United States District Court D. Maryland.

June 27, 1962.

Joseph D. Tydings, U. S. Atty., Arnold M. Weiner, Special Asst. to U. S. Atty., Stephen H. Sachs, Asst. U. S. Atty., Baltimore, Md., for plaintiff.

Maurice J. Walsh, Chicago, Ill., Thomas G. Gray, Baltimore, Md., for defendant.

WINTER, District Judge.

The defendant's "Motion to Dismiss Indictment for Insufficiency and Defects in Law," "Motion for Continuance of Trial to a Date Beyond the General Elections in November, 1962" and "Motion for Transfer of Proceedings to United States District Court, Northern District of Illinois" have been briefed, argued and submitted.

Notwithstanding a number of grounds alleged in support of the motion to dismiss, defendant argues only two: first, that the indictment constitutes "cryptic" pleading, so that the defendant is not fairly apprised of the crime with which he is charged and, second, that paragraph 4 of the indictment is legally insufficient in alleging that "defendant * * * caused to be placed in an authorized depository for mail matter a letter * * *," because it fails to allege that defendant "willfully caused, etc." In support of his first argument. defendant relies upon Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960); Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944); and United States v. Watson, 17 F. 145 (D.C.N.D.Miss.W.D.1883). Essentially, plaintiff argues that the failure to set forth the alleged "captious, deceptive, and misleading newspaper and direct mail solicitations," in haec verba, rather than to summarize them, as was done in the indictment, is the basic legal insufficiency.

The indictment summarizes for over two pages the pretenses and representations alleged to be false and fraudulent when made, and the manner in which it is claimed that they are false and fraudulent.

While the Kann and Parr cases, supra, were prosecutions under the mail fraud statute, they contain no discussion related to the argument made by defendant. The Russell case is quite different in its facts. It was a prosecution for the failure of a witness to answer a question before a congressional subcommittee, and it held that the omission in the indictment to allege in what regard the question was pertinent to the matter under investigation was fatal. True, the Russell case contains general language condemning generality in the language of indictments, but the purpose of specificity is stated to be not only for the protection of the defendant, but for the benefit of the prosecution, by making it possible for courts called upon to pass on the validity of convictions to bring an enlightened judgment to that task. Application of this rule to the indictment in question leads to the conclusion that it is fully subserved.

Although the Watson case, which was also not a mail fraud prosecution, states as a general principle that in criminal pleading a written document should be set out verbatim, the Court added (17 F., p. 150) "or in substance" (emphasis supplied). The indictment here complies. In any event, the Court is bound by Linden v. United States, 254 F.2d 560 (4 Cir., 1958). The Linden case was a prosecution for alleged violation of the mail fraud statute. There, the indictment summarized the alleged captious, deceptive, and misleading statements. See also United States v. Bagdasian, 291 F.2d 163 (4 Cir., 1961), cert. den. 368 U.S. 834, 82 S.Ct. 60, 7 L.Ed.2d 36 (1961). Here, since the summary is sufficiently full and complete to apprise defendant of the crime with which he is charged and to establish a standard by which the Court may determine whether there is sufficient evidence to submit to a jury, the indictment is not defective.

Defendant's second argument, likewise, is without merit. Defendant is indicted for violation of 18 U.S.C.A. § 1341. That statute imposes criminal sanctions upon a person found guilty of devising or intending to devise a fraud, inter alia, who "places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department * * *." The indictment, in addition to referring to 18 U.S.C.A. § 1341, also contains a reference to 18 U.S.C.A. § 2, the aider and abettor, accessory before the fact, statute. Section 2(b) is phrased in terms of whoever "willfully" causes an act to be done which if directly performed by him would be an offense is punishable as a principal.

The law is clear that evidence is admissible to show defendant's violation of 18 U.S.C.A. § 1341 on a theory of vicarious guilt; and, if proceeded against as an aider or abettor, it is not necessary that the defendant be indicted other than as a principal. Hence, the "willfully" adjective of 18 U.S.C.A. § 2(b) need not be alleged. Moreover, paragraph 4 of the indictment is in precisely the language of Form 3 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. While Rule 58, F.R.Crim.P., states that the forms are illustrative and not mandatory, it requires a strong showing for a court to hold that the form is legally insufficient, United States v. Bagdasian, supra. And, lastly, by its bill of particulars, the Government has stated that it proceeds against defendant in part as a principal and in part under 18 U.S.C.A. § 2(a), which does not contain "willfully" at all.

Defendant's argument relates more to the legal sufficiency of proof to be...