United States v. Zeuli

• Decision Date: 02 August 1943
• Docket Number: No. 322.,322.
• Citation: 137 F.2d 845
• Parties: UNITED STATES v. ZEULI.
• Court: U.S. Court of Appeals — Second Circuit

137 F.2d 845 (1943)

UNITED STATES v. ZEULI.

No. 322.

Circuit Court of Appeals, Second Circuit.

August 2, 1943.

Irving Spieler and Samuel Mezansky, both of New York City (Moses Polakoff, of New York City, of counsel), for appellant.

Vine H. Smith and Harold M. Kennedy, U. S. Atty., both of Brooklyn, N. Y., for appellee.

Before L. HAND, CLARK, and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

The accused, Zeuli, was convicted of a conspiracy to steal gasoline ration books and to receive them with intent to convert them, knowing them to have been stolen. Five other defendants were indicted together with him: A nolle prosequi was entered as to one, Mignona; and four pleaded guilty to the second count of the indictment, alleging the substantive offense of receiving the ration books with intent to convert them. Zeuli was the only one who went to trial, upon which the following facts appeared. Two of the defendants, Steneck and Mignona, broke into the office of the "Long Island City Ration Board" in Long Island City, forced open a safe, and stole 120 boxes of gasoline ration books, which they carried to the house of Mignona's sister. Four or five days later Steneck telephoned Zeuli who was in Manhattan, and offered to sell him some of the stolen books. They could not agree upon the price, but on the following day, Steneck went to Zeuli's bar in Manhattan, and Zeuli agreed to buy some of the books for about $1000. Steneck then left and on the next day went again to Zeuli's bar with the books, which he delivered to Zeuli at that place. There was no evidence to connect Zeuli with the original theft of Mignona and Steneck, nor with any of the other three defendants who pleaded guilty to the second count.

Lower Federal courts have several times decided that, if a crime necessarily involves the mutual cooperation of two persons, and if they have in fact committed the crime, they may not be convicted of a conspiracy to commit it. United States v. Dietrich, C.C., 126 F. 664 (Van Devanter and Munger, JJ.); United States v. New York Central & H. R. R. Co., C.C., 146 F. 298 (Holt, D.J.); United States v. Sager, 2 Cir., 49 F.2d 725, 727, 728. Although the Supreme Court has never actually so decided, it has twice clearly approved the doctrine; and we accept it as settled law. United States v. Katz, 271 U.S. 354, 355, 46 S.Ct. 513, 70 L.Ed. 986; Gebardi v. United States, 287 U.S. 112, 122, 53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370. Therefore, if the conspiracy was confined to the transaction between Zeuli and Steneck by which the stolen books were sold, although both were guilty of the substantive crime, neither was guilty of conspiracy. The indictment was not so confined; it laid a single conspiracy which comprehended not only the disposal of the books but the original theft of them. Such a conspiracy was not within the doctrine we have just mentioned, for it covered more than the crime of receiving. The difficulty was not therefore in the indictment but in the proof, for the prosecution did not connect Zeuli with the preliminary theft, or with the books at all until after they had been stolen, and at a time when nothing more remained to be done but to dispose of them. The prosecution answers that, when a new confederate enters a conspiracy already in process of execution, he becomes a party to it as though he had been one of the original participants; and that, when Zeuli bought the books,...