William Alfred Reno v. United States , 317 F.2d 499 ( 1963 )

RIVES, Circuit Judge.

This appeal is from a judgment finding the defendant guilty “of the offense of knowingly and willfully conspiring to harbour and conceal an alien not lawfully entitled to enter or reside within the United States, well knowing and having reasonable grounds to believe that the entry of said alien into the United States occurred less than three years prior to May 4, 1961; in violation of Title 18, United States Code, Section 371, as charged in the Indictment.” The only questions presented concern the sufficiency of the indictment, as stated in the appellant’s brief:

“1. Should the trial judge have dismissed the indictment on February 15, 1962, upon the motion of the appellant made February 13, 1962?

“2. Does the indictment charge an offense against the United States?” The indictment contains a single count which commences as follows:

“The Grand Jury charges:

“That on or about May 4, 1961, and continuing to on or about the date of this Indictment, in Dade County, in the Southern District of Florida,

WILLIAM ALFRED RENO,

ROBERT EUGENE MOORE,

PHILIP BELLA and

MARIE BELLA RUTIGLIANO,

defendants herein, did willfully, feloniously and knowingly conspire, combine, confederate and agree together and with ANGELO NICOSIA, co-conspirator but not defendant named herein, and with divers other persons to the Grand Jury-unknown, to commit an offense against the United States, to-wit: to violate Title 8, United States Code, Section 1324, that is to say, they did knowingly and willfully conceal, harbor and shield from ■detection, and did knowingly and willfully attempt to conceal, harbor and shield from detection, in Dade County within the Southern District of Florida, including various buildings and means of transportation therein, EMANUELE NICOSIA, an alien not lawfully entitled to enter or reside within the United States, well knowing and having reasonable grounds to believe that the entry of the said EMANUELE NICOSIA into the United States occurred less than three years prior thereto and they did transport and move, and did attempt to transport and move within the United States by means of transportation or otherwise, the said EMANUELE NICOSIA; in violation of Title 18, United States Code, ■Section 371.

“That in furtherance of the aforesaid ■conspiracy and for the purpose and object ■of effecting the said conspiracy, the following overt acts were committed: * * -X-»

There follow seven separately numbered charges of overt acts.

Upon arraignment on November 9, 1961, the defendant entered a plea of not guilty. The attorney then representing the defendant was permitted to withdraw from the case on February 9, 1962. On February 13, 1962, other counsel appeared and moved to dismiss the indictment on the following grounds:

“1. Indictment does not charge an offense against the United States.

“2. Indictment is duplicitous, that is to say, it charges three separate crimes in the same count.

“3. Indictment is vague and ambiguous.”

The trial commenced two days later, at which time the court denied the motion to dismiss after the following colloquy:

“MR. BOOTH (Attorney for Defendant) ; * * * I have filed a motion to dismiss and I don’t believe the indictment is good. It is duplicitous. It charges three separate crimes in the same count.

“THE COURT: Duplicity is not a fatal defect. He may have to elect, but I think it is really protected if he charges three separate crimes because he cannot reindict him on it.

“Let me look at it for a moment, Mr. Booth.

“MR. BOOTH: It is 12,334.

“MR. SAPP (Assistant U. S. Attorney) : There is one count there, your Honor. We are proceeding on the conspiracy theory that might, by some stretch of the imagination, be considered to be duplicitous. But I think those acts can be regarded as the overt acts.

“THE COURT: The overt acts have nothing to do with it, Counsel.

“MR. BOOTH: Your Honor, in the body of the opening paragraph it says first that they ‘conspired.’

“And then to violate Title 8, Section 1324, that is to say, ‘They did knowingly and willfully conceal, harbor or shield,’ et cetera.

“And then down further it says that, ‘They did transport and move,’ which is charging the substantive crime. Properly worded it would have said, ‘That is to say, to knowingly and willfully conceal — ’

“THE COURT: Yes. The language is bad. Did you write this language ? “MR. SAPP: No.

“MR. BOOTH: No, he didn’t.

“MR. SAPP: That was before my time. I have some authority that I would be glad to submit to the Court that I think hold the indictment is good, notwithstanding it could have been more properly drawn.

“Of course, the motion here comes too late. Thirty days was allowed to file motions, and that has long since expired.

“MR. BOOTH: What was the date of the arraignment on this?

“MR. SAPP: November.

“MR. BOOTH: November. Well, the reason I filed it was because—

“THE COURT: Yes, I can see your reason. If you had filed it promptly, I would probably have dismissed it.

“MR. BOOTH: I filed it the same day I entered my appearance.

“THE COURT: Of course, my objection to it is entirely different. My objection is that the English is incorrect.

“ ‘That they conspired to commit an offense, that is to say, they did knowingly and willfully conceal — ’

“MR. BOOTH: It makes it vague and ambiguous.

“THE COURT: Well, we understand it, but what it should have said was, ‘They conspired to commit an offense, to-wit, that they would knowingly and willfully — ’ and so forth. “MR. SAPP: Instead of that they actually did do it.

“THE COURT: That is right. For that reason I probably would have taken a dim view of it. But I will deny the motion at this time.”

.The trial was limited strictly to conspiracy charge. The United States Attorney began his opening statement to the jury as follows:

“As the Court explained to you in the beginning, this is a conspiracy case where the Government is charging these two men, Mr. Reno and Mr. Moore, with a conspiracy to violate the Immigration Laws; that is a conspiracy to harbor and transport an alien, the alien in this case being an Italian seaman named Emanuele Nicosia, who came into this country aboard a ship, as our evidence will show, in July of 1960.”

The same limitation was repeated several times in the court’s charge to the jury, culminating as follows: “Now, finally keep in mind this is a case charging conspiracy as I said, an agreement between two or more persons to violate the law in the respects as the indictment charges, and there is no other charge involved — just plain conspiracy.”

If it be assumed arguendo that the indictment is duplicitous, the district court was correct in observing that,. “Duplicity is not a fatal defect.” As-said in United States v. Goodman, 5 Cir., 1960, 285 F.2d 878, 380: “This error would, however, be harmless if the United States were required to elect upon which charge it would proceed. The entire count should not be dismissed when a less drastic ruling will suffice.” The-trial was limited to the charge of conspiracy and any possible duplicity of the-indictment was harmless.

In our opinion, however, the indictment is not duplicitous. The charge-of commission of the substantive offense-does not detract from the conspiracy— “* * * js pUnishable as conspiracy,, though the intended crime be accomplished.” United States v. Rabinowich, 1915, 238 U.S. 78, 86, 35 S.Ct. 682, 684, 59 L.Ed. 1211. See also Pinkerton v. United States, 1946, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489. As said in Heike v. United States, 1913, 227 U.S. 131, 144, 33 S.Ct. 226, 229, 57 L.Ed. 450,. “At all events the liability for conspiracy is not taken away by its success — that is, by the accomplishment of the substantive offence at which the conspiracy-aims.”

Several cases discussing similarly worded conspiracy indictments have held that the allegation of acts which would amount to commission of the substantive-offense was merely descriptive of the conspiracy. United States v. Illinois Alcohol-Co., 2 Cir., 1930, 45 F.2d 145, 148; Blum v. United States, 6 Cir., 1931, 46 F.2d 850, 851; United States v. McKieghan, E.D.Mich., 1932, 58 F.2d 298, 302; United States v. J. R. Watkins Co., D.C. Minn., 1954, 120 F.Supp. 154, 157. See also Millard v. United States, 5 Cir., 1945, 148 F.2d 154, 155, 156; Braswell v. United States, 5 Cir., 1952, 200 F.2d 597, 599; Beauchamp v. United States, 6 Cir., 1946, 154 F.2d 413, 415.

The appellant argues also that the indictment is so vague and ambiguous as to make it impossible to determine the meaning of a verdict of guilty, as expressed in appellant’s brief: “That is, "by its verdict did the jury mean to say that they had found the defendant guilty of the crime of conspiracy or did the jury find him guilty of concealing or transporting an alien not duly admitted.”

We do not agree. The indictment clearly charges a conspiracy alone, and was expressly limited to that charge throughout the trial and by the court’s instructions to the jury.

On question 2, the basis of appellant’s argument that the indictment does not charge an offense against the United States is summarized in his brief as follows:

“The appellant urges that inasmuch as the object of the alleged conspiracy was the commission of substantive crimes, to wit: concealment, harboring, shielding and transporting of an alien not entitled to enter or reside in the United States, the agreement of two or more persons is necessary for the completion of the substantive crime and no conspiracy may be charged. In short, a charge that the defendants concealed, harbored and transported the alien requires a concert of action on the part of the illegal alien and the named defendants. The completion of the substantive charges depends not only upon the agreement to conceal, etc., but also on the consummation thereof. Consequently, thex-e must be a plurality of criminal action ■between the alien and the named defendants to complete the substantive offenses. There is no ingredient in the conspiracy which is not present in the completed crimes. There could be no crime without this concert of action on the part of the alien and the co-conspirators named in the indictment.”

The appellant relies on the principle stated in Pinkerton v. United States, 1946, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489:

“ * * * There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355-356 [46 S.Ct. 513, 70 L.Ed. 986]; Gebardi v. United States, 287 U.S. 112, 121-122 [53 S.Ct. 35, 77 L.Ed. 206].”

See also, United States v. Holte, 1915, 236 U.S. 140, 145, 35 S.Ct. 271, 59 L.Ed. 504; Lott v. United States, 5 Cir., 1955, 218 F.2d 675, 677; Pifer v. United States, 4 Cir., 1957, 245 F.2d 704, 705; 11 Am. Jur., Conspiracy, Sec. 20; Annotations 11 A.L.R. 196, 104 A.L.R. 1430.

There are at least two sufficient answers to appellant’s argument on question 2. First, the alien would not be guilty under the substantive statute, Title 8, United States Code, Sec. 1324, of harboring himself — his action consists of being harbored. Compare May v. United States, 84 U.S.App.D.C. 233, 1949, 175 F.2d 994, 1002, 1003. Second, while only two persons are necessary for the completion of the substantive crime, the indictment charges a conspiracy between four defendants, one Angelo Nicosia who is not made a defendant, and divers other persons to the Grand Jury unknown. See Old Monastery Co. v. United States, 4 Cir., 1945, 147 F.2d 905, 907, 908; Pifer v. United States, supra. There is thus an ingredient in the conspiracy not present in the completed crime; i. e., the participation of at least one of the defendant’s co-conspirators in addition to the participation of the alien. See Pinkerton v. United States, supra.

In Hamner v. United States, 5 Cir., 1943, 134 F.2d 592, Judges Sibley, Holmes and McCord sitting, Judge Sibley speaking for the Court, with Judge McCord dissenting, said:

“-» * * we (j0 noj think the indictment with sufficient clearness charges a conspiring. Confused allegations of what the defendants did are by a sort of inference sought to be made allegations of what they conspired to do, as respects sales of tires without rationing certificates. * * * In the present case it is alleged generally that the defendants conspired to commit offenses and frauds, but it is not alleged what offenses and frauds were agreed to be committed. The pleader thenceforth alleges only what was done.” 134 F.2d at 594, 595.

In dissenting, Judge McCord quoted from United States v. Behrman, 258 U.S. 280, 288, 42 S.Ct. 303, 304, 66 L.Ed. 619-as follows:

“ ‘It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense.’ ” 134 F.2d at 597.

The indictment in the present case is much clearer than that in Hamner, supra. The present indictment specifically.identifies the offense which the defendants conspired and agreed to commit, that is, “to violate Title 8, United States Code, Section 1324.” See Wong Tai v. United States, 1927, 273 U.S. 77, 81, 47 S.Ct. 300, 71 L.Ed. 545. It then alleges that the defendants did knowingly and willfully conceal, harbor and shield from detection Emanuele Nicosia, an alien, etc. Hamner charged the purchases and sales of rubber tires without rationing certificates, which acts might possibly have been committed by the defendants separately. The present indictment charges that “they did knowingly and willfully conceal, harbor, etc.,” thus charging a joint act on the part of the defendants. Further, as is argued by the appellant on the contention just considered, the commission of the offense included an agreement between the persons harboring and the one being harbored.

If, however, this case cannot be validly distinguished from Hamner, then we think that Hamner is no longer good law. The principle espoused by Judge McCord in his dissenting opinion in Hamner was again advocated by the writer in his dissent in United States v. Debrow, 5 Cir., 1953, 203 F.2d 699, at 703, 704, and was ultimately sustained by the Supreme Court on certiorari from that decision :

“An indictment is required to set forth the elements of the offense sought to be charged.

“ ‘The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, “and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” Cochran and Sayre v. United States, 157 U.S. 286, 290, [15 S.Ct. 628, 39 L.Ed. 704]; Rosen v. United States, 161 U.S. 29, 34, [16 S.Ct. 434, 40 L.Ed. 606]. Hagner v. United States, 285 U.S. 427, 431, [52 S.Ct. 417, 76 L.Ed. 861].”

“The Federal Rules of Criminal Procedure were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure. Rule 2, F.R. Crim.Proc. Rule 7(c) provides in pertinent part as follows:

“ ‘The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged * * *. It need not contain * * * any other matter not necessary to such statement * *

“The essential elements of the crime of perjury as defined in 18 U.S. C. § 1621 are (1) an oath authorized by a law of the United States, (2) taken before a competent tribunal, officer or person, and (3) a false statement wilfully made as to facts material to the hearing.” 346 U.S. 374, 376, 74 S.Ct. 113, 115, 98 L.Ed. 92.

Again in Smith v. United States, 1959, 360 U.S. 1, 9, 79 S.Ct. 991, 996-997, 3 L.Ed.2d 1041, it was said:

“This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. E. g., Hagner v. United States, 285 U.S. 427 [52 S.Ct. 417, 76 L.Ed. 861]; Williams v. United States, 341 U.S. 97 [71 S.Ct. 576, 95 L.Ed. 774]; United States v. Debrow, 346 U.S. 374 [74 S.Ct. 113, 98 L.Ed. 92]. This has been a salutary development in the criminal law.”

Quoted in Russell v. United States, 1962, 369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed. 2d 240.

The essential elements of the crime of conspiracy are well stated by then Associate Justice Vinson of the D.C.Circuit in United States v. Offutt, 75 U.S.App.D.C. 344, 127 F.2d 336, 338:

“Thus there are three essentials in a conspiracy indictment: the agreement, the offense-object toward which the agreement is directed, and an overt act. The agreement is the conspiring when it is to commit an offense against the United States. The offense-object need not be committed, for the crime is the agreement to do it. In that sense the crime of conspiracy is analogous to the offenses of ‘attempt.’ But if the offense-object is committed, the crime of conspiracy does not vanish or merge. The statutory crime differs from common-law conspiracy in that it requires an overt act. That is made an essential to give the conspirators a time, a place, and a chance to say that although we did agree, now that we are about to start, let’s call it off. It also makes the indictment for, and the proof of, the illegal meeting of the minds more objective.”

The present indictment states the essential facts constituting all three elements of the conspiracy charged: it alleges the agreement to commit the particular specified offense, it alleges expressly, we think but if not, then by necessary implication, that the defendants did knowingly, willfully, and jointly actually commit the offense so agreed on, and it alleges the overt acts. That was enough to apprise the defendant with certainty of what he must be prepared to meet and to put him in position to plead double jeopardy to any subsequent charge of the same offense.

No error appearing, the judgment is

Affirmed.