United States v. Wexler, 67.

• Decision Date: 04 November 1935
• Docket Number: No. 67.,67.
• Citation: 79 F.2d 526
• Parties: UNITED STATES v. WEXLER.
• Court: U.S. Court of Appeals — Second Circuit

79 F.2d 526 (1935)

UNITED STATES v. WEXLER.^*

No. 67.

Circuit Court of Appeals, Second Circuit.

November 4, 1935.

A. M. Frumberg, of New York City (Julius I. Puente, and William H. Griffin, of Washington, D. C., of counsel), for appellant.

F. W. H. Adams, U. S. Atty., Francis A. Mahony, Asst. U. S. Atty., and Richard J. Burke, Sp. Asst. U. S. Atty., all of New York City, for the United States.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

Wexler, the accused, was indicted upon four counts; the first and third being for conspiracy to defraud the income tax; the second and fourth for an attempt to defraud it. The first and second counts were for the year 1930; the third and fourth for 1931. The allegations of the conspiracy counts were that he had been engaged in New York and New Jersey in making and selling beer, out of which he had derived a very large income, to help him to conceal which two of the conspirators, Cohen and Gurock, had deposited it in New York and New Jersey banks subject to his order. Wexler was to complete the fraud by filing income tax returns which reported only a trifling income. There were a number of overt acts, one of which was that he had in fact filed the proposed false income tax return. The substantive counts charged that Wexler, Cohen, Gurock, and one Baker attempted to defeat the income tax law by filing the returns, knowing that Wexler's income was very much larger than they disclosed. The jury brought in a verdict of guilty on all four counts, and the judge imposed a sentence of two years on count 1 and five years on count 2, to be served concurrently; and of an added two years on count 3, and five years on count 4, to be served concurrently, thus making a total term of ten years. He imposed a fine of $10,000 on count 2 and an added fine of $10,000 on count 4; of $10,000 on count 1 (to be suspended if the fine on count 2 was paid); and of $10,000 on count 3 (to be similarly suspended). He added as a fine the costs of the prosecution, $876.

The first objection is that conviction upon the conspiracy counts necessarily covered the attempts, and that for this reason the sentence was a double punishment. This argument does not go so far as to say that a conspiracy and the crime of which it is the object may not ordinarily be laid as separate counts in one indictment, or that sentence may not be imposed upon each count; and in so conceding it is clearly right. Carter v. McClaughry, 183 U. S. 365, 394, 395, 22 S. Ct. 181, 46 L. Ed. 236; Bens v. U. S., 266 F. 152 (C. C. A. 2); Morgan v. Aderhold, 73 F.(2d) 171 (C. C. A. 5); Wharton on Criminal Law (11th Ed.) § 1654. The distinction on which the appeal pro tanto goes is that among the overt acts in each conspiracy count was the filing of the return, and that that was the attempt itself. Hence the conviction upon these counts necessarily included all the facts making up the attempt and the judge imposed two sentences for the same crime. Reynolds v. U. S., 280 F. 1 (C. C. A. 6); Morgan v. U. S., 294 F. 82 (C. C. A. 4); Miller v. U. S., 300 F. 529, 534 (C. C. A. 6); Schroeder v. U. S., 7 F.(2d) 60, 64 (C. C. A. 2); Segurola v. U. S., 16 F.(2d) 563, 566 (C. C. A. 1); U. S. v. Levinson, 54 F. (2d) 363 (C. C. A. 2). While an overt act only serves to show that the venture was not mere talk, it is nevertheless as much a condition to conviction as the criminal agreement itself, and some reason must be found for distinguishing it, as regards the question of double punishment. There is such a reason. Back of the doctrine that a man should not be punished again, for a crime which is a part of another crime which he must expiate, lies the notion that the penalty for the greater crime is the measure of the social disapproval and the social vengeance exacted for the whole conduct comprised in the definition of the greater. To punish all of that once, and a part of it again, violates this implication. But the overt acts in a conspiracy have no such relation to the criminal agreement; for while it is true that they must be in execution of the agreement, they need not be acts forbidden in themselves, that is, criminal for any other reason than just because they do execute it. By themselves they may be entirely innocent, and if by chance they are otherwise, they do not on that account infect the conspiracy with their proper criminality, though it must be owned that they may influence the sentence. Were they in that sense part of the conspiracy, it would be inconsistent to fix a smaller sentence for it than is imposed for the substantive crime, though that is commonly exactly what is done.

This conclusion is borne out by those decisions which hold that an acquittal of conspiracy is not a bar to prosecution for the substantive crime, even when that was the single overt act laid in the conspiracy indictment. Kelly v. U. S., 258 F. 392 (C. C. A. 6); Bens v. U. S., supra, 266 F. 152; Moorehead v. U. S., 270 F. 210 (C. C. A. 5); Bell v. U. S., 2 F. (2d) 543 (C. C. A. 8). Acquittal of a greater crime is always a bar to prosecution for a lesser, whenever the accused could have been convicted of the lesser on the first prosecution. Ex parte Nielsen, 131 U. S. 176, 186, 9 S. Ct. 672, 33 L. Ed. 118; Reg. v. Gould, 9 Car. & P. 364; Reg. v. Bird, 2 Denison, 94; Russell on Crime, Book XII, chap. II, subd. 3; Wharton on Crim. Law (11th Ed.) § 393; Bishop, New Crim. L. § 1054. Since it is always proper to add a count for the substantive offense along with a conspiracy count, it follows from those decisions that the substantive crime when laid as an overt act is not a constituent of the conspiracy; and so indeed the opinions expressly declare.

But even if conviction for conspiracy were such a bar when the only overt act laid was the substantive crime, still the result must be otherwise when there are several. For then it is impossible to say which overt act the jury found to have been committed, or that the sentence for the conspiracy covered the substantive crime. To protect himself the accused would then be obliged to demand that the prosecution abandon the substantive crime as an overt act; and a denial of that demand might be a vital error, since it would by hypothesis expose him to the danger of double punishment. Otherwise the record remains ambiguous, and the accused who has the burden of proof on such an issue must lose. Wexler made no such demand and is therefore out of court even though the doctrine he invokes applied, as it does not, to situations where there is but one overt act. In Krench v. U. S., 42 F.(2d) 354 (C. C. A. 6), the conviction upon a conspiracy count was indeed reversed because the conspiracy was in fact involved in the commission of the substantive crime. This ruling did not concern any overt act, and, moreover, appears to us to be opposed to the general doctrine. It depended upon the fact that in that particular case the accused had not personally imported the offending liquors, but had used for that purpose those alleged in the conspiracy count to have been his confederates. The court said that if both sentences stood, he would be punished twice for the same crime. But it is not the identity of the evidence that counts, but of the elements which make up the two crimes; so that it was not material that the liquors chanced to have been imported by the confederates. Thus in Albrecht v. U. S., 273 U. S. 1, 11, 47 S. Ct. 250, 71 L. Ed. 505, the same evidence which proved the sales in fact proved the possession; but since the sale might be made without possession, that circumstance was indifferent; the elements of one crime did not include all those of the other. Cf. Blockburger v. U. S., 284 U. S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306.

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