Craig v. United States (81 F.2d 816, 1936)

GARRECPIT, Circuit Judge.

On December 19, 1934, an indictment was returned in the court below ■ against the appellants and Plelen Werner. This accusation, which will be hereinafter referred to as the first indictment, contained two counts, each charging a violation of 18 U.S.C.A. § 88. The first count alleged that the defendants had conspired to secure, by corrupt means, dismissal of an indictment and prosecution in which John McICeon and others were charged with violations of 18 U.S.C.A.'§ 338, or using the mails in execution of a scheme to defraud, and with a violation of 18 U.S.C.A. § 88, the conspiracy statute. The judgment of conviction in the prosecution under the postal laws, hereinafter referred to as the -Italo Case, was reversed by this court in a decision handed down on November 8, 1935. Wilkes v. United States, 80 F.(2d) 285.

The second count of the first indictment charged the same defendants with conspiring to obstruct justice by unlawfully securing the dismissal of the Italo Case, referred to in the first count; such dismissal • to be brought about by giving money and other things of value to the same federal officials as those named in the first count. The second count alleged the same overt acts that were set out in the first count.

At the trial under this first indictment, after all the evidence had been introduced and both sides had rested and before the arguments of counsel to the jury, the defense moved -to require the government to elect upon which count it would proceed. In that connection, the following occurred:

“Mr. Herron: I, at this time, desire to renew the motion made to compel the Government to elect to further proceed upon one or the other count of the indictment, rather than upon both counts.

“The Court: What do you say about that, Mr. Carr?

“Mr. Carr: Why, if your Honor

please, I think there might be some merit in that, and there might be some question that the two counts are very similar, and for that reason, the Government would be willing to proceed on the second count.

“The Court: The Government elects to proceed on the second count?

“Mr. Carr: Yes, sir.

“The Court: The Government proceeds on count 2, and count 1 is dismissed.

“Mr. Herron: I now desire—

“The Court: (Interrupting) Or, rather, instead of dismissing, judgment entered in favor of the defendants on count 1.

“Mr. Herron: That is, the jury will be instructed to do that, or—

“The Court: (Interrupting) No, that is not necessary.

“Proceed.”

The jury failed to agree on a verdict on the second count, and was discharged.

On March 14, 1935, the grand jury returned another indictment against the same defendants in the court below. This charge, to which we will hereinafter refer as the second indictment, involved the same transaction as the first indictment. There had been an indictment preceding the one to which we are referring as the first, but it is not here necessary to consider that earlier indictment.

The second indictment, which is the one involved in the present appeal, was likewise in two counts. The first count charged the defendants with conspiring to obstruct the due administration of justice in the Italo Case by corruptly securing the dismissal of that prosecution by influencing, etc., government officials to dismiss the indictment in that case, etc. It was upon this first count that the conviction now appealed from was had.

The secpnd count charged each of the defendants with doing certain acts in an endeavor to procure corruptly the dismissal of the Italo Case, etc.

Each of the defendants pleaded not guilty, filed a demurrer, both general and special, to both counts of the indictment, entered a plea in bar and a plea of former jeopardy to the first count, and made a motion to quash both counts.

The trial court granted the appellee’s motion to strike the plea in bar and of former jeopardy, sustained the defendants’ demurrers to the second count, overruled them as to the first count, and denied the defendants’ motions to quash the first count, upon which trial was accordingly thereafter had. The jury returned a verdict of not guilty as to Helen Werner and of guilty severally as to the appellants herein. From a judgment entered in accordance with the verdict, the present appeal has been taken.

Arguing in support of their plea in bar and their plea of once in jeopardy, under which they urge the cognate defense of res judicata, the appellants contend that the action of the trial judge in the first case, in entering a judgment in their favor on the first count of the first indictment, was, in effect, an instruction for a verdict in favor of the appellants; that “the mere abandonment of the charge was equivalent to an acquittal”; that the abandonment of count 1 was without the appellants’ consent; and, finally, that, since count 1 of the first indictment was the same as count 1 of the present indictment, on which the appellants were convicted, the above-mentioned pleas should have been sustained.

The appellants, however, are in error when they state that count 1 of the first indictment was dismissed or abandoned without tlieir consent. The very portion of the record quoted by the appellants, and set out above, shows that their counsel renewed “the motion made to compel the Government to elect to further proceed upon one or the other count of the indictment, rather than upon both counts.”

When a nolle prosequi as to one count is entered with the consent of the defendant, even after -all the evidence is in, such dismissal does not operate as a bar to a subsequent indictment for the same offense. United States v. Shoemaker, 27 Fed.Cas. pp. 1067 and 1069, No.16,279; United States v. Earring, 25 Fed.Cas. p. 1052, No.15,075; 16 C.J. § 391, pp. 248, 249; 8 R.C.L. §§ 140, 141, pp. 152, 153.

Count 1 of the first indictment was abandoned by the appellee because it was “very similar” to count 2. The jury was unable to agree as to count 2. In other words, as the appellee points out, the issue of fact between the appellee and the appellants as to count 2 was not settled by the jury in that case. The appellants now contend that, since counts 1 and 2 of the first indictment charged the same offense as that charged by the first count of the present indictment, a dismissal of count 1 of the first indictment is a bar to a prosecution under count l of the present indictment, even though the first jury was unable to agree on the count that was in fact submitted to it. If this rule were adopted, a defendant confronted by an indictment containing similar counts could wait until the taking of testimony had begun, could then insist upon an election, and, in the event of the jury’s disagreement on the count elected, could block a second trial on a similar count on the ground that the former count had been abandoned after jeopardy had commenced. We do not think that such an application of the rule as to former jeopardy is a reasonable one, and we decline to adopt it.

In 8 R.C.L. § 141, supra, the following language is used:

“It may be stated as a general rule that where an indictment is quashed at the instance of the defendant, though after jeopardy has attached, he cannot thereafter plead former ■ jeopardy when placed on trial on another indictment for the same offense. His action in having the •indictment quashed constitutes a waiver of his constitutional privilege.”

We believe that the court below was-correct in granting the appellee’s motion to strike the plea' in bar and the plea of once in jeopardy.

We turn next to an examination of the demurrers to count 1 of the present indictment, on -which the appellants were convicted.

Succinctly stated, the allegations of the count, which is lengthy, are as follows:

On December 15, 1931, there was pending in the United States District Court at Los Angeles, an indictment against John McKeon and others, charging them with violations of sections 37 and 215 of the Federal Penal Code. The appellants and Helen Werner conspired with each other and with John McKeon and Fred L. Wilke, who were not indicted, and with other persons, to endeavor corruptly to influence, obstruct, etc., the due administration of justice in the McKeon proceeding. The conspiracy was to be carried out as follows: The three defendants were to approach McKeon and state to him that they could and would, for a large sum of money, bring about corruptly a dismissal of the indictment against him; that the three defendants “could and would, by means of political influence, things of value, sums of money, or gratuitously, corruptly influence or cause other persons to corruptly influence the decision and action of the persons acting on behalf of the United States in an official function, * * * before whom” the McKeon Case was pending, such influence to be directed toward causing a decision and an action favorable to McKeon and others, without regard to whether or not McKeon and the others were guilty of the crime charged in the pending indictment, and against the interests of the United States; that the three defendants would represent to Mc-Keon that they, could and would corruptly bring about a dismissal of the pending indictment, by corruptly influencing and causing others to influence the decision and action of each of .such government officials “to do acts in violation of their lawful duty * * * and prevent the conduct and presentation of said criminal prosecution, without regard to the merits thereof; that said defendants would represent * * * to John Mc-Keon and other persons * * * that the defendants could and would, for a large sum of money, corruptly endeavor to, and corruptly influence Samuel M. Shortridge, then United States Senator, to influence said * * * officers to * * * bring about, or permit to be brought about, the dismissal of said prosecution,” etc.; that the three defendants would corruptly induce McKeon and others to agree to pay large sums of money to them, so that the defendants might corruptly endeavor to influence, or corruptly cause other persons to endeavor to influence, the decision and action of such officers to do acts in violation of their lawful duty and bring about the dismissal of the prosecution, without regard to its merits; that McKeon and others “would pay to said defendants * * * $50,000.00”; that the three defendants and Fred L. Wilke, an unindicted coconspirator, and others, “would corruptly bring about, or cause to be brought about, the dismissal of said criminal prosecution”; that the three defendants and Wilke and others “would corruptly, endeavor to influence, corruptly influence, corruptly cause other persons to endeavor to influence, and to corruptly influence by means of political influence, things of value, sums of money, or gratuitously, and gratuitously, the decision and action of” such officers, in favor of McKeon and others, without regard to the merits, “that is to say, to cause said hereinbefore mentioned officers to dismiss, or cause to be dismissed, said indictment and to do other acts in violation of their lawful duty as such officers.”

Ten overt acts are set out in connection with count 1.

The federal conspiracy statute, 18 U.S.C.A. § 88, under which the appellants were indicted, reads as follows:

“If two or more persons conspire either . to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.”

The offense that the appellants are charged with having conspired to commit, the obstruction of the due administration of justice, is denounced in 18 U.S.C.A. § 241, in the following language:

“Whoever corruptly, or by threats or force, or by any threatening letter or communication, shall endeavor to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or officer acting as such commissioner or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or officer acting as such commissioner, in the discharge of his duty, or who corruptly or by threats or force, or by any threatening letter or communication, shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein, shall be fined not more than $1,-000, or imprisoned not more than one year, or both.”

The appellants’ demurrers set forth nine special grounds of objection against count 1, in addition to the general statement that the indictment does not state facts sufficient to constitute an offense against the United States. In the first assignment of error, which deals with the demurrer, each appellant specifies seven special grounds of objection. In the brief of the appellant Craig, which is adopted, with some additions,. by the appellant Weinblatt, the argument against the indictment is divided into three headings. We will consider the points urged in support of the demurrers according to the grouping adopted in the brief.

It is first urged that count 1 is insufficient because it fails to charge that the appellants conspired to do any acts that would constitute an obstruction to the administration of justice. We believe that a mere reading of the count at once discloses that it charges a conspiracy to commit an offense against public justice. It alleges that the three defendants conspired with one another and with other persons to endeavor to obstruct, “corruptly,” the due administration of justice in the McKeon Case, by stating to McKeon that, for a large sum of money, they could and would bring about corruptly a dismissal of the indictment against him, that they could and would accomplish this in various ways, which are specified, and that they would corruptly -influence Senator Shortridge to aid in the plot. The count further sets forth that the alleged conspirators were in fact planning to bring about, by corrupt means, the dismissal of the prosecution.

In this connection, the appellants complain that, contrary to “an elementary principle of criminal pleading,” the indictment fails to state the statutory offense in other than the “generic” terms used in the statute itself. Our view is that, on the contrary, the count in question descends to almost tedious minutiae in detailing the terms of the conspiracy.

Furthermore, it should be borne in mind that the offense which it is charged the appellants conspired to commit need not be stated with that particularity which would be required in an indictment charging the offense itself. Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct., 300, 71 L.Ed. 545; Ford v. United States (C.C.A.9) 10 F.(2d) 339, 343, affirmed, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793; Coates v. United States (C.C.A.9) 59 F.(2d) 173, 174; Enrique Rivera v. United States (C.C.A.l) 57 F.(2d) 816, 819.

The details of a conspiracy are worked out and unfolded during its course. It would be holding a pleader to an inordinate degree of exactitude to compel him to allege each step with mathematical accuracy; for, when a plan is hatched, the conspirators themselves do not foresee all its ramifications. In the words of lago—

“’Tis here, but ’tis confused:

Knavery’s plain face is never seen till used.”

It is next contended that the indictment does not allege a “completed and unconditional conspiracy to endeavor to obstruct the due administration of justice,” in that the “obtaining of a large sum of money” or an agreement to pay such sum to the appellants and Mrs. Werner, “was a condition precedent that must be fulfilled before he [Craig] would agree to endeavor to obstruct the due administration of justice,” etc. It is then argued that it nowhere appears in the indictment that the sum of money was ever paid or that any agreement that it would be paid was ever made.

The text of count 1, however, clear-* ly shows that an unconditional conspiracy is charged, the steps for the accomplishment of which are set out with great particularity. It is unqualifiedly alleged that the appellants and Mrs. Werner-“conspired” to obstruct justice, and that the conspiracy was to be “carried out” in certain ways, including the payment of $50,-000 by McKeon. The fact that McKeon did not in fact pay the appellants the money does not affect the existence of the conspiracy, but simply indicates that the plans of the appellants miscarried as to McKeon’s part in the scheme.

“Conspiracy is essentially a crime of intent.” Britton v. United States (C.C.A.7) 60 F.(2d) 772, 773, certiorari denied, 287 U.S. 669, 670, 53 S.Ct. 314, 77 L.Ed. 577. The crime here charged was completed when the appellants agreed on the scheme detailed elsewhere in count 1. That agreement is unequivocally alleged, and it is “earmarked” by the subsequent particulars to “identify” the specific offense charged, “sufficiently to distinguish it from other similar offenses.” Flood v. United States (C.C.A.10) 43 F.(2d) 353. The complete details of the plan, although they need not have been stated, could not possibly have prejudiced the substantial rights of the appellants. Hosier v. United States (C.C.A.5) 64 F.(2d) 657, 658, certiorari denied, 290 U.S. 677, 54 S.Ct. 100, 78 L.Ed. 584.

Nor does the alleged fact that Mc-Keon entered the conspiracy after it was formed by the appellants affect the existence of the general scheme. “Such a conspiracy may be a continuing one; actors may drop out, and others drop in; the details of operation may change from time to time; the members need not know each other, or the part played by others; a member need not know all the details of the plan or the operations; he must, however, know the purpose of the conspiracy and agree to become a party to a plan to effectuate that purpose. A conspiracy is bottomed on an agreement to accomplish an illegal act, and without such agreement there can be no conspiracy; a conspiracy ‘is a partnership in criminal purposes.’ ” Marcante- v. United States (C.C.A.10) 49 F.(2d) 156, 157; Johnson v. United States (C.C.A.9) 62 F.(2d) 32, 34.

Finally, it is urged against count 1 That it “charges nothing more than that defendants, without regard to the merits of the Italo Case * * * conspired to bring about the dismissal of the indictment, but without the use of bribery or any other unlawful means.” This objection seems to be based chiefly upon the allegation that the appellants were to represent to McKeon that they could corruptly influence the action of United States officials in favor of McKeon and others, in the Italo prosecution, “by means of political influence, things of value, sums of money, or gratuitously,” and upon a similar allegation, also in count 1, that the appellants would in fact so influence such action, which allegation also contains the words "and gratuitously” as well as “or gratuitously.”

What we have already said regarding microscopic criticism of the details of a conspiracy also applies here. Furthermore, influence may be corruptly exerted upon public officials by means other than political pressure, money, or “other things of value.” In a government of laws and not of men, motives of personal favoritism, on whatever grounds such motives may be based, are to be deemed corrupt in the administration of public justice.

Finally, the words “gratuitously” can well be disregarded as surplusage, since enough is “left to make a valid and substantial charge of the crime intended to be charged, no essential part of the case being omitted after the striking out occurs.” State v. Currier, 225 Mo. 642, 125 S.W. 461, 463.

Even if an essential averment in an. indictment is faulty in form; yet, if it may by fair construction be found within the text, it is sufficient. Miller v. United States (C.C.A.3) 50 F.(2d) 505, 508, certiorari denied, 284 U.S. 651, 52 S.Ct. 31, 76 L.Ed. 552. See, also, 18 U.S.C.A. § 556, Supp., and Louis Piquett v. United States (C.C.A.7) 81 F.(2d) 75, decided on January 2, 1936.

Taking the first count by its four corners, we find that it sufficiently apprises the ajppellants of the offense charged. Accordingly, we hold that the court below was correct in overruling the demurrers, both general and special.

Next to be considered are the specifications of error dealing with the lower court’s denial of motions for a directed verdict in favor of the appellants, made at the close of the appellee’s case, and renewed at the close of all the evidence.

Viewed in a light most favorable to the appellee, the gist of the evidence adduced against the appellants was as foílows:

On December 4, 1931, an indictment was returned in the United States District Court for the Southern District of California, Central Division, against MeKeon, Alfred G. Wilkes, John M. Perata, James V. Westbrook, and others, charging them with using the mails in execution of a scheme to defraud. Wilkes v. United States, supra. The indictment was pending in that court up to and in-eluding May 1, 1933, and is herein referred to as the Italo Case.

John McKeon and his two brothers had formed the McKeon Oil Company. In 1927 and 1928 that company merged with the Italo Petroleum Corporation, of which the McKeon brothers became the dominating factors. They lent the Italo company $270,000; the loans being evidenced by promissory notes. In 1932, Clay Carpenter, the receiver of the Italo Corporation, had been directed by the District Judge to bring action “to cancel the $400,-000 worth of notes held by the McKeons.”

Thomas Wilkes, a brother of A. G. Wilkes, one of the defendants in the Italo Case, had known the appellant Weinblatt for perhaps twenty years. Shortly after the return of the Italo indictment, Thomas Wilkes and Weinblatt had a talk about the affairs of A. G. Wilkes. Thomas Wilkes had started talking about his brother’s case with Weinblatt early in the autumn of 1931, when it was before the grand jury. In a conversation held within a month after the return of the Italo indictment, Weinblatt told Wilkes that he could “arrange to fix this matter up so that the case would never come to trial. In answer to Wilkes’ question as to how much it would cost, Weinblatt replied, “Approximately $125,000 to $150,000. Weinblatt said that he would like to have a talk with McKeon first. Wilkes asked Weinblatt how the latter was going to hanrile it, and Weinblatt replied:

“Thru Judge Craig. You know Judge Craig is very strong politically down here, and managed Senatoi Shortridge s campaign and so forth.

At that time the appellant Craig was a justice of the District Court of Appeal of California.

Wilkes testified that he saw Weinblatt during the first week in January, and that the latter said Judge Craig would handle the matter through Senator Shortridge in Washington, “and that he stood very strong with Judge Craig.” Wilkes’ testimony continues:

“Later on there was conversation between myself and Weinblatt about communications with Washington, and people going there, and what not. He said on one of my meetings with him that things were getting along all right with Jack McKeon and that a couple of people were getting ready to go to Washington and they had some telephone conversations with Washington,” etc.

On one occasion, according to Wilkes’ testimony, Weinblatt told him that Craig was in a Mr. Behr’s office, and asked Wilkes to drop in there and meet the judge. Wilkes went into Behr’s office and was introduced to Craig. Wilkes continued:

“* * * We walked out of the ofgce alKj down the hallway and they dropped into Mr. Meyers’ office; the door was open and Joe and the Judge stepped jn the door. I stuck my head in and said, ‘Hello’ and' ‘See you later’ to Meyers.”

John McKeon had known the appeljant Weinblatt for several years. Weinblatt called to see McKeon at the latter’s 0gice, jn the early part of January, 1932, and stated that he could be of some assistance to McKeon in the matter of the indictments. Weinblatt said that he believed that his friend, Judge Craig, might be of help in getting the indictments dismissed. McKeon asked Weinblatt to make an appointment lor McKeon to see Craig, jn a day or two Weinblatt reported that would see McKeon.

McKeon went with Weinblatt to call on Judge Craig in his chambers. It was McKeon’s first mceting with Craig. After introducing McKeon to Craig, Weinblatt retired from the room. As to the conversation that followed, McKeon tesf-jged-

then gaid