Vannata v. United States

• Decision Date: 05 March 1923
• Docket Number: 120.
• Citation: 289 F. 424
• Parties: VANNATA v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

289 F. 424

VANNATA v. UNITED STATES.

No. 120.

United States Court of Appeals, Second Circuit.

March 5, 1923

Morris Kamber, of Brooklyn, N.Y. (William Paul Allen and Otho S Bowling, both of New York City, of counsel), for plaintiff in error.

Ralph C. Greene, U.S. Atty., of Brooklyn, N.Y., and Guy O. Walser Atty. U.S. Atty., of New York City, opposed.

Before HOUGH, MANTON and MAYER, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

The 'amended assignment of errors' is open to all the objections enumerated in Fraina v. United States, 255 F. 28, 30, 166 C.C.A. 356. It is therefore disregarded as was a similar document in Schonfeld v. United States (C.C.A.) 277 F. 934, 939.

The errors assigned in accordance with rule at the time of taking writ of error do not present in proper form any arguable point, and we have therefore examined this record for plain error not assigned, in accordance with the practice often set forth, but last stated in Gruher v. United States, 255 F. 474, 478, 166 C.C.A. 550.

In respect of proving that Vannata sold the whisky, that Farrell and that several other persons were actively concerned with Vannata in doing on a considerable scale what is now called 'bootlegging,' the record is full, and very far from containing any error that would result in 'serious injustice.'

A matter of considerable importance, however, is presented by the manner of indictment, considered in connection with the now uncontradicted facts. The question is whether Vannata and Farrell, the vendor and vendee of the whisky, can, either alone or in conjunction with others, be treated as members of a conspiracy to effect an unlawful sale, when the proof is clear that the sale, its preliminary bargaining and actions of agents or servants of both seller and buyer, constituted the entire transaction.

It is not material that Vannata alone was indicted; one conspirator may be singly indicted and convicted, if it appear that the basis of a charge remains against a plurality, which includes the accused. Feder v. United States, 257 F. 694, 168 C.C.A. 644, 5 A.L.R. 370.

Nor does it avoid the result below that proof of this conspiracy consisted in proving its success, which here means that the agreement to sell and the consequent sale was the conspiracy; for 'liability for conspiracy is not taken away by its success-- that is, by the accomplishment of the substantive offense, at which the conspiracy aims. ' Heike v. United States, 227 U.S. 131, 144, 33 Sup.Ct. 226, 229 (57 L.Ed. 450, Ann. Cas. 1914C, 128).

Neither is it a good objection to this prosecution for conspiracy to commit a crime that only one of those named, or indicated by the phrase 'others to the grand jurors unknown,' could possibly perform the ultimate illegality; i.e., the sale by Vannata. It is confederation that constitutes the crime of conspiracy at common law; our statute adds an overt act, whether as an ingredient of crime or as a condition precedent to indictment, is a mere piece of metaphysics. The fact remains that the necessary overt act need not be criminal per se, and that inability to commit the substantive offense is not a disability to conspire. The doctrine is traced to its origin in United States v.

Bayer, Fed. Cas. No. 14,547, by Dillon, J., and also in Johnson v. United States, 158 F. 69, 85 C.C.A. 399, 14 Ann.Cas. 153.

Nor can the offense of conspiracy be said to have merged in the criminal sale. Under the present Code, conspiracy is a felony, while the sale is but a misdemeanor. These historic words have now only their statutory meaning, and the application of reasoning based on their common-law signification to modern conditions is very unsatisfactory. Nevertheless it is plain that conspiracy (a crime authorizing two years' imprisonment) is not merged in the sale (an offense authorizing but six months), and, although the evidence proving confederation proves also the actual sale, a conviction for conspiracy cannot be set aside for that reason. State v. Setter, 57 Conn. 461, 18 A. 782, 14 Am.St.Rep. 121, is an instance of grosser disparity between the punishment for substantive offense and that for conspiracy than is the case at bar. The classic doctrine of merger is found in Whar. Cr. Law (10th Ed.) Sec. 1346; its application to this cause is quite impossible.

But a flavor of novelty is given this case by the suggestion that it is one for applying the rule that, when the concerted actions of a plurality of agents are necessary elements of the substantive offense, an indictment will not lie against such actors for conspiring to commit the offense they actually did commit. This is not a part of the merger doctrine; it is a special regulation of conspiracy, based on the thought that, if the aggregate actions of a plurality must be added together to make one crime, with one name given it by the law, it cannot be called by another name, and treated as another thing. Wharton, ut supra, Sec. 1339; 12 Corp.Jur. 554. The simplest illustration is adultery, and the rule probably grew out of sexual offenses, to which its application is very evident.

The present novelty is in attempting to apply the rule to a case of sale. This substantive offense is selling, and (without attempting definition) the word 'sale' necessarily imports concurrence or...