United States v. Tornabene
Citation | 222 F.2d 875 |
Decision Date | 07 June 1955 |
Docket Number | 11476.,No. 11402,11402 |
Parties | UNITED STATES of America v. Regis Gary TORNABENE, Appellant. UNITED STATES of America v. Jacob Joseph CAPLAN, Appellant. |
Court | U.S. Court of Appeals — Third Circuit |
Elliott W. Finkel, Pittsburgh, Pa. (David Roth, Kaplan, Finkel & Roth, Arthur H. Thompson, Pittsburgh, Pa., on the brief), for appellants.
W. Wendell Stanton, Asst. U. S. Atty., Pittsburgh, Pa. (John W. McIlvaine, U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.
Before GOODRICH, KALODNER and STALEY, Circuit Judges.
Regis Gary Tornabene and Jacob Joseph Caplan have appealed judgments of conviction entered against them after separate trials in the Federal District Court for the Western District of Pennsylvania. The appeals are treated in one opinion since an identical question of law governs our decision in both cases.
Both appellants moved to quash their respective indictments for failure to state an offense. Each appellant contends that the refusal to quash the indictment was error.
Caplan's indictment contained six counts. He was convicted on the first five counts and acquitted on the sixth. Tornabene was indicted and convicted on ten counts. Count 1 of the Caplan indictment, which is typical1 in all essential respects to all counts in both indictments, reads as follows:
The government contends that the above can be read to charge either a violation of Section 656, Title 18, U.S.C.2 or a violation of Section 2(a), Title 18 U.S.C.3
We will first consider whether Count 1 charges a crime under Section 656. That section distinctly limits the class of persons who can violate its provisions, i. e., officers, directors, agents, employees, etc. See United States v. Weitzel, 1918, 246 U.S. 533, 38 S.Ct. 381, 62 L.Ed. 872. The government concedes this much. It is not alleged that either Caplan or Tornabene fall within any of the designated classes. But this does not end the matter, according to the government.
The government says that since Section 2(a) is not confined to a limited class, both Caplan and Tornabene were capable of aiding and abetting in a violation of Section 656. So far, the government is correct, Coffin v. United States, 1895, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481, and with this phase of the government's theory, the appellants agree.
The government then argues that if A can commit a crime by aiding and abetting B in doing an act, it is sufficient to indict A for doing the principal act, even if at trial the proof shows that A only aided and abetted in the commission of the act which constituted the crime. As an abstract principle, this is good law, and we have been referred to many cases relied upon by the district court and cited by the government, i. e., United States v. Klass, 3 Cir., 1948, 166 F.2d 373; Von Patzoll v. United States, 10 Cir., 163 F.2d 216, certiorari denied 1947, 332 U.S. 809, 68 S.Ct. 110, 92 L.Ed. 386; DiPreta v. United States, 2 Cir., 1920, 270 F. 73.
But there is a distinct and essential...
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