Romontio v. United States (400 F.2d 618, 1968)

HILL, Circuit Judge.

This is a direct appeal from a judgment of conviction and sentence following a jury verdict of guilty upon eleven substantive counts of an indictment for violation of the mail fraud statute, 18 U.S.C. § 1341, and upon one conspiracy count under 18 U.S.C. § 371. The indictment charged appellant, three other individual defendants and one corporate defendant on twelve substantive counts and a conspiracy count. One of the original individual defendants was acquitted on all counts at a previous trial and one of the substantive counts was dismissed as to all defendants by the Government prior to submission of the case. The jury convicted Romontio on each of the twelve remaining counts and acquitted each of the other defendants on all counts. Appellant received a three year sentence on each of the twelve counts, with those sentences to be served concurrently.

Appellant first contends that as a matter of law the judgment and sentence on the conspiracy count must be reversed because the crime of conspiracy cannot be committed by a single individual. His second contention goes to the refusal of the trial court to give two requested instructions both pertaining to certain evidence admitted during the trial with reference to the conspiracy count. There is merit to appellant’s first point, although, as we will later demonstrate, the recognition of this point as valid will afford appellant no relief from the sentence which he will have to serve.

The conspiracy conviction on the thirteenth count of the indictment must be reversed. The indictment alleged that appellant and three other specifically named individual co-defendants were the sole perpetrators of the conspiracy. One of these co-defendants was acquitted at the first trial of the case and the other two were acquitted by the jury in the trial of this case. The conspiracy statute, 18 U.S.C. § 371, by its express language and by the very nature of the offense requires some concert of plan and purpose between two or more persons. 2This question was laid to rest by this circuit many years ago and those decisions remain the law of the circuit. There are many decisions of other courts to the same effect. We should point out that the indictment did not allege that there were unknown conspirators and this is not a case in which there were other kn