United States v. Valenti, Cr. No. E-4855.

• Decision Date: 16 December 1947
• Docket Number: Cr. No. E-4855.
• Citation: 74 F. Supp. 718
• Parties: UNITED STATES v. VALENTI et al.
• Court: U.S. District Court — Western District of Pennsylvania

74 F. Supp. 718

UNITED STATES v. VALENTI et al.

Cr. No. E-4855.

District Court, W. D. Pennsylvania.

December 16, 1947.

Owen Burns, U. S. Atty., of Erie, Pa., and Morris D. Canter, Asst. U. S. Atty., of Pittsburgh, Pa., and Frank H. Patton, Sp. Asst. to the Atty. Gen., for the Government.

Charles J. Margiotti and Vincent M. Casey, both of Pittsburgh, Pa., for defendant, Frank Joseph Valenti.

WATSON, District Judge.

This case is before the Court on a motion by the defendant Valenti to dismiss the indictment. The hearing on the motion was held at Harrisburg, Pennsylvania, December 3, 1947. Arguments were heard and briefs were filed.

The indictment complained of was returned in open court on the 19th day of March, 1947 at Pittsburgh, in the District Court of the United States for the Western District of Pennsylvania. The indictment in four counts appears to have been returned in proper form, and no exceptions or objections were raised as to the procedure involved therein. The objections here are to the substance of the Counts which are hereinafter described.

The first Count alleged a conspiracy to evade and avoid the provisions of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A. Appendix, § 301 et seq. It is urged by the defendant that this Count is defective in that it fails to allege an overt act. Defendant's brief states "that although it appears to have been drawn `under' the provisions of 50 U.S. C.A. Appendix, § 311, nevertheless, it was drawn strictly in accordance with the language of the General Conspiracy Statute, 18 U.S.C.A. § 88, which requires an allegation of an overt act."

The indictment in its caption and endorsement contains the citation of 50 U.S. C.A. Appendix, § 311. Nowhere does it mention 18 U.S.C.A. § 88. The absence of an allegation of an overt act should combine with the statutory reference to make it apparent that Count 1 of the indictment was not intended to indict the defendant for a violation of the so-called general conspiracy statute but for conspiracy under the provisions of the Selective Training and Service Act of 1940, where the allegation of an overt act is not required. Singer v. United States, 323 U.S. 338, 65 S.Ct. 282, 89 L.Ed. 285.

It is the opinion of this Court that Count 1 is proper and should not be dismissed.

The Circuit Court of Appeals for the Second Circuit, in the recent case of United States v. Negro, 164 F.2d 168, held that a conviction of conspiracy in violation of 18 U.S.C.A. § 88, will be sustained where an overt act, other than those overt acts averred in the indictment, was proved at the trial, and no one of those overt acts averred in the indictment was proved. By the same reasoning the conclusion could be reached in this case, that the Government would have an opportunity to prove an overt act at the time of trial, though none was averred in the indictment. However, this Court has already determined the disposition of that part of the defendant's motion on other grounds.

Counts II and III are contended to be defective in failing to charge that the defendant "knowingly" failed and neglected to report to his Draft Board. 50 U.S.C.A. Appendix, § 311 reads in part as follows: "* * * Who in any manner shall knowingly fail or neglect to perform any duty required of him under or in the execution of this Act, or rules or regulations made pursuant to this Act * * *."

In United States v. Trypuc, 2 Cir., 136 F.2d 900, the Court held: "Only a person who knowingly fails or neglects to perform a duty required of him by Selective Service Act or regulations promulgated thereunder is punishable for such non-performance of duty. * * * But we do not think the Regulations can be interpreted so broadly as to read `knowingly' out of the statute. Not every failure to perform a duty imposed by the statute or regulations is made criminal; only a person `who shall knowingly fail or neglect' his duty is to be punished."

In the case of United States v. Max, 156 F.2d 13, the Circuit Court of Appeals for the Third Circuit found an indictment to be defective which failed to aver that the defendant had knowingly possessed counterfeit ration documents. This case arose out of wartime legislation, and involved a ration order of the Office of Price Administration. Other District Court cases, United States v. Weiss, D.C., 65 F.Supp. 556; and United States v. Gallo, D.C., 50 F.Supp. 158; sustain the contention of the defendant. These latter cases do not involve the dismissal of an indictment but concern trial error.

The Government relies upon the case of Schultz v. United States, 9 Cir., 155 F.2d 721, which involved an indictment charging a violation of the Selective Training and Service Act of 1940. The Court there held that the indictment was not defective because it did not contain the words "feloniously", "wilfully", and "unlawfully". The word "knowingly" was used; therefore, the Schultz case does not support the Government's position. The Government cites also Wheatley v. United States, 4 Cir., 159 F.2d 599. This case involved the omission of the word "knowingly" from an...