Anderson v. United States , 94 S. Ct. 2253 ( 1974 )

Mr Justice Marshall

delivered the opinion of the Court.

Petitioners were convicted of violating 18 U. S. C. § 241, which, in pertinent part, makes it unlawful for two or more persons to “conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . . Specifically, the Government proved that petitioners engaged in a conspiracy to cast fictitious votes for candidates for federal, state, and local offices in a primary election in Logan County, West Virginia. At the trial, a question arose concerning the admissibility against all of the petitioners of certain out-of-court statements made by some of them. In considering the propriety of the District Court’s decision to admit this evidence, the Court of Appeals thought it necessary to resolve the question whether a conspiracy to cast false votes in a state or local election, as opposed to a conspiracy to cast false votes in a federal election, is unlawful under § 241. The Court of Appeals affirmed petitioners’ convictions, concluding that § 241 encompasses “conspiracies, involving state action at least, to dilute the effect of ballots cast for the candidate of one’s choice in wholly state elections.” 481 F. 2d 685, 700-701 (CA4 1973). We granted certiorari to consider this question. 414 U. S. 1091 (1973). It now appears, however, that the out-of-court statements at issue were admissible under basic principles of the law of evidence and conspiracy, regardless of whether or not § 241 encompasses conspiracies to cast fraudulent votes in state and local elections. Accordingly we affirm the judgment of the Court of Appeals without passing on its interpretation of § 241.

I

The underlying facts are not in dispute. On May 12, 1970, a primary election was held in West Virginia for the purpose of nominating candidates for the United States Senate, United States House of Representatives, and various state and local offices. One of the nominations most actively contested in Logan County was the Democratic nomination for County Commissioner, an office vested with a wide variety of legislative, executive, and judicial powers.¹ Among the several candidates for the Democratic nomination for this office were the incumbent, Okey Hager, and his major opponent, Neal Scaggs.

Petitioners are state or county officials, including the Clerk of the Logan County Court, the Clerk of the County Circuit Court, the Sheriff and Deputy Sheriff of the County, and a State Senator. The evidence at trial showed that by using the power of their office, the petitioners convinced three election officials in charge of the Mount Gay precinct in Logan County to cast false and fictitious votes on the voting machines and then to destroy poll slips so that the number of persons who had actually voted could not be determined except from the machine tally.² While it is apparent from the record that the primary purpose behind the casting of false votes was to secure the nomination of Hager for the office of County Commissioner, it is equally clear that about 100 false votes were in fact cast not only for Hager, but also for Senator Robert Byrd and Representative Ken Hechler, who appeared on the ballot for renomination to their respective chambers of the United States Congress, as well as for other state and local candidates considered part of the Hager slate.³

The conspiracy achieved its primary objective, the countywide vote totals showing Hager the winner by 21 votes, counting the Mount Gay precinct returns. About two weeks after the election, on May 27, 1970, the election results were certified. After that date, Scaggs filed an election contest⁴ challenging certain returns, including the Mount Gay County Commissioner votes. No challenge was made, however, to the Mount Gay votes for either of the federal offices, and they became final on May 27.

A hearing was held in the County Court on the election contest at which petitioners Earl Tomblin and John R. Browning gave sworn testimony. The prosecution in the § 241 trial sought to prove that Tomblin and Browning perjured themselves at the election contest hearing in a continuing effort to have the fraudulent votes for Hager counted and certified. For example, one of the key issues in the election contest was whether sufficient voters had in fact turned out in Mount Gay precinct to justify the unusually high reported returns. Tomblin testified under oath at the election contest that he had visited Mount Gay precinct on election day and had observed one Garrett Sullins there as Sullins went in to vote. The prosecution at the § 241 trial, however, offered testimony from Sullins himself that he was in the hospital and never went to the Mount Gay precinct on election day.

At trial, the other defendants objected to the introduction of Tomblin’s prior testimony on the ground that it was inadmissible against anyone but Tomblin. The District Court overruled the objection but instructed the jury that Tomblin’s testimony could be considered only as bearing upon his guilt or innocence, unless the jury should determine that at the time Tomblin gave this testimony, a conspiracy existed between him and the other defendants and that the testimony was made in furtherance of the conspiracy, in which case the jury could consider the testimony as bearing upon the guilt or innocence of the other defendants. A similar objection was made to the introduction of Browning’s election contest testimony and a similar cautionary instruction given when that objection was overruled.

In oral argument before the Court of Appeals, petitioners for the first time⁵ sought to link their objection to the introduction of this evidence to a particular interpretation of § 241. See 481 F. 2d, at 694. Specifically, petitioners argued that § 241 was limited to conspiracies to cast false votes in-federal elections and did not apply to local elections. Accordingly, they contended that the conspiracy in the present case, so far as federal jurisdiction was concerned, ended on May 27, 1970, the date on which the election returns were certified and the federal returns became final. Statements made after this date by one alleged conspirator, the argument continued, could not, as a matter of law, have been made in furtherance of the conspiracy charged under § 241 and therefore should not have been considered by the jury in determining the guilt or innocence of the other defendants.

The Government countered before the Court of Appeals that, whether the federal conspiracy had ended or not, the election contest testimony of Tomblin and Browning was admissible under the principles enunciated in Lutwak v. United States, 344 U. S. 604 (1953). The Court of Appeals, however, decided not to tarry over this point and instead, in its own words, chose “to meet directly the contention that federal jurisdiction over the alleged conspiracy ended with the certification in the federal election contests . . . .” See 481 F. 2d, at 698. We think it inadvisable, however, to reach out in this fashion to pass on important questions of statutory construction when simpler, and more settled, grounds are available for deciding the case at hand. In our view, the basic principles of evidence and conspiracy law set down in Lutwak are dispositive of petitioners’ evidentiary claims.

The doctrine that declarations of one conspirator may be used against another conspirator, if the declaration was made during the course of and in furtherance of the conspiracy charged, is a well-recognized exception to the hearsay rule which would otherwise bar the introduction of such out-of-court declarations. See Lutwak v. United States, supra, at 617. See also Krulewitch v. United States, 336 U. S. 440 (1949). The hearsay-conspiracy exception applies only to declarations made while the conspiracy charged was still in progress, a limitation that this Court has “scrupulously observed.” ⁶ See Krulewitch v. United States, supra, at 443-444. See also Lutwak v. United States, supra, at 617-618; Fiswick v. United States, 329 U. S. 211, 217 (1946); Wong Sun v. United States, 371 U. S. 471, 490 (1963).

But, as the Court emphasized in Lutwak, the requirement that out-of-court declarations by a conspirator be shown to have been made while the conspiracy charged was still in progress and in furtherance thereof arises only because the declaration would otherwise be hearsay. The ongoing conspiracy requirement is therefore inapplicable to evidence, such as that of acts of alleged conspirators, which would not otherwise be hearsay. Thus the Court concluded in Lutwak that acts of one alleged conspirator could be admitted into evidence against the other conspirators, if relevant to prove the existence of the conspiracy, “even though they might have occurred after the conspiracy ended.” 344 U. S., at 618. See also United States v. Chase, 372 F. 2d 453 (CA4 1967); Note, Developments in the Law — Criminal Conspiracy, 72 Harv. L. Rev. 920, 988 (1959).

The obvious question that arises in the present case, then, is whether the out-of-court statements of Tomblin and Browning were hearsay. We think it plain they were not. Out-of-court statements constitute hearsay only when offered in evidence 'to prove the truth of the matter asserted.⁷ The election contest testimony of Tomblin and Browning, however, was not admitted into evidence in the § 241 trial to prove the truth of anything asserted therein. Quite the contrary, the point of the prosecutor’s introducing those statements was simply to prove that the statements were made⁸ so as to establish a foundation for later showing, through other admissible evidence, that they were false.⁹ The rationale of the hearsay rule is inapplicable as well. The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence.¹⁰ Here, since the prosecution was not contending that anything Tomblin or Browning said at the election contest was true, the other defendants had no interest in cross-examining them so as to put their credibility in issue.¹¹ Cf. Pointer v. Texas, 380 U. S. 400 (1965); Barber v. Page, 390 U. S. 719 (1968); Bruton v. United States, 391 U. S. 123 (1968).

Since these prior statements were not hearsay, the jury did not have to make a preliminary finding that the conspiracy charged under § 241 was still in progress before it could consider them as evidence against the other defendants. The prior testimony was accordingly admissible simply if relevant in some way to prove the conspiracy charged. See Lutwak v. United States, 344 U. S., at 617.

As we read the record, there can be no doubt that the evidence of perjury by petitioners Tomblin and Browning in the election contest was relevant to make out the Government’s case under § 241, even assuming, arguendo, that the petitioners’ conspiracy ended, for purposes of federal jurisdiction, on May 27, 1970, with the certification of the federal election returns. For even if federal jurisdiction rested only on that aspect of the conspiracy involving the federal candidates, the proof at trial need not have been so limited. The prosecution was entitled to prove the underlying purpose and motive of the conspirators in order to convince the jury, beyond a reasonable doubt, that petitioners had in fact unlawfully conspired to cast false votes in the election. See Lutwak v. United States, supra, at 617. As it was never suggested that either Senator Byrd or Representative Hechler needed or sought the assistance of an unlawful conspiracy in order to win his respective nomination, a key issue in this prosecution, accepting for the sake of argument petitioners' view of § 241, was whether and why petitioners conspired to have false votes cast for these federal candidates. The fact that two of the petitioners perjured themselves at an election contest in which the Mount Logan votes for Hager were at stake helped prove the underlying motive of the conspiracy, by demonstrating that the false votes for federal officers were not an end in themselves, but rather part of a conspiracy to obtain Hager’s nomination through unlawful means. The jury could have inferred that the petitioners were motivated in casting false federal ballots by the need to conceal the fraudulent votes for Hager, since the casting of large numbers of false ballots for County Commissioner would likely have aroused suspicion in the absence of the casting of a similar number of false votes for the other offices at issue in the election.

Even if the federal conspiracy ended on May 27, then, the Tomblin and Browning election contest testimony was relevant to prove the offense charged. Accordingly, in order to rule on petitioners’ challenge to the admissibility of this evidence, there was no need for the Court of Appeals, and there is no need for us, to decide whether petitioners’ conspiracy ended on May 27 for purposes of federal jurisdiction or whether § 241 applies to conspiracies to cast fraudulent votes in local elections.

II

Petitioners argue, however, that the evidence at trial was insufficient to show that they had engaged in a conspiracy to cast false votes for the federal officers and that their convictions under § 241 can stand only if we hold that section applicable to a conspiracy to cast false votes in a local election.¹² Our examination of the record leads us to conclude otherwise.

Two principles form the backdrop for our analysis of the record. It is established that since the gravamen of the offense under § 241 is conspiracy, the prosecution must show that the offender acted with a specific intent to interfere with the federal rights in question. See United States v. Guest, 383 U. S. 745, 753-754 (1966); Screws v. United States, 325 U. S. 91 (1945). Moreover, we scrutinize the record for evidence of such intent with special care in a conspiracy case for, as we have indicated in a related context, “charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning ... a dragnet to draw in all substantive crimes.” Direct Sales Co. v. United States, 319 U. S. 703, 711 (1943). See also Ingram v. United States, 360 U. S. 672, 680 (1959).

Even with these caveats in mind, we find the record amply bears out the verdict that each of the petitioners engaged in the conspiracy with the intent of having false votes cast for the federal officers. The Government’s chief witness was Cecil Elswick, an unindicted coconspir-ator who served as the Republican election officer at the Mount Gay precinct and who actually cast most of the fraudulent votes. Elswick testified that he was first approached by petitioner Red Hager, the son of Okey Hager, who told Elswick to go along with them to win the Mount Gay precinct or else he, Red Hager, would cause Elswick trouble. When asked on direct examination for whom he was told to win the precinct, Elswick testified: “For the Okey Hager slate and Senator Byrd and Ken Hechler.” App. 40. When Elswick expressed an interest in going along, Red Hager arranged for a meeting between Elswick and Tomblin at which Tomblin confirmed an offer of a part-time deputy sheriff job for Elswick as a reward for his help in the election fraud. Elswick later met with petitioner W. Bernard Smith in Tomblin’s office, and Smith then instructed him on how to proceed to win the election. The night before the election, Elswick met with all five of the petitioners. At this meeting cash payments for the false votes were discussed and petitioners Smith and Hager emphasized the need for( putting “all the votes” on the machine. Later that evening, Elswick accompanied Tomblin to visit Garrett Sullins, a candidate for justice of the peace listed on the Hager slate. Tomblin told Sullins not to worry about his election because they had him “slated,” so long as Sullins’ wife, another Mount Gay precinct election official, would go along with the illegal voting.

Elswick then testified as to how he actually put the fraudulent votes on the machines. When a voter came into the precinct and asked for help in using the machines to vote the Neal Scaggs slate, Elswick and Mrs. Sullins would join the voter in the voting machine and, aligning their bodies so as to conceal what they were doing, would put votes on the machine for the entire Hager slate. In addition, Elswick simply went into the voting machine on his own and cast many fictitious ballots. Through a comparison between the reported returns and the number of persons who actually voted, false votes were shown to have been cast for every office — federal, state, and local. See n. 3, supra.

We think this evidence amply supported the jury’s conclusion that each of the petitioners knowingly participated in a conspiracy which contemplated the casting of false votes for all offices at issue in the election. The evidence at trial tended to show a single conspiracy, the primary objective of which was to have false votes cast for Hager but which also encompassed the casting of false votes for candidates for all other offices, including Senator Byrd and Representative Hechler. True, there was little discussion among the conspirators of the federal votes per se, just as there was little discussion of the Hager votes in and of themselves, but the jury could believe this was only a reflection of the conspirators’ underlying assumption that false votes would have to be cast for entire slates of candidates in order to have their fraud go undetected.

In our view, petitioners err in seeking to attach significance to the fact that the primary motive behind their conspiracy was to affect the result in the local rather than the federal election. A single conspiracy may have several purposes, but if one of them — whether primary or secondary — be the violation of a federal law, the conspiracy is unlawful under federal law. See Ingram v. United States, 360 U. S., at 679-680. It has long been settled that § 241 embraces a conspiracy to stuff the ballot box at an election for federal officers, and thereby to dilute the value of votes of qualified voters; see United States v. Saylor, 322 U. S. 385 (1944). See also United States v. Mosley, 238 U. S. 383 (1915). This applies to primary as well as general elections. See United States v. Classic, 313 U. S. 299 (1941).

That petitioners may have had no purpose to change the outcome of the federal election is irrelevant. The specific intent required under § 241 is not the intent to change the outcome of a federal election, but rather the intent to have false votes cast and thereby to injure the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots. See United States v. Saylor, supra, at 386. As one court has stated:

“The deposit of forged ballots in the ballot boxes, no matter how small or great their number, dilutes the influence of honest votes in an election, and whether in greater or less degree is immaterial. The right to an honest [ count] is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and Constitution of the United States.” Prichard v. United States, 181 F. 2d 326, 331 (CA6), aff’d due to absence of quorum, 339 U. S. 974 (1950).

Every voter in a federal primary election, whether he votes for a candidate with little chance of winning or for one with little chance of losing, has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes. And, whatever their motive, those who conspire to cast false votes in an election for federal office conspire to injure that right within the meaning of § 241.¹³

While the District Court’s jury instructions did not specifically focus upon the conspiracy to cast false votes for candidates for federal offices, no objection was made at trial or before the Court of Appeals with respect to this aspect of the instructions. See Johnson v. United States, 318 U. S. 189, 200 (1943); Adickes v. S. H. Kress & Co., 398 U. S. 144, 147 n. 2 (1970). And, even assuming, arguendo, that § 241 is limited to conspiracies to cast false votes for candidates for federal offices, we could find no plain error here. The prosecution’s case, as indicated earlier, showed a single conspiracy to cast entire slates of false votes. The defense consisted in large part of a challenge to the credibility of the Government’s witnesses, primarily the three unindicted coconspirators. The case therefore ultimately hinged on whether the jury would believe or disbelieve their testimony. Given the record, we think it inconceivable that, even if charged by more specific instructions, the jury could have found a conspiracy to cast false votes for local offices without finding a conspiracy to cast false votes for the federal offices as well.

This case is therefore an inappropriate vehicle for us to decide whether a conspiracy to cast false votes for candidates for state or local office, as opposed to candidates for federal office, is unlawful under § 241, and we intimate no views on that question.

Affirmed.

1 The County Commissioner sits on the County Court which is the central governmental body in the county. See State ex rel. Dingess v. Scaggs, — W. Va. —, —, 195 S. E. 2d 724, 726 (1973). See also W. Va. Code Ann., §7-1-3 et seq. (1969).

2 The participation of the election officials was secured by threats of indictment or arrest, or promises of county jobs and money.

3 Of the 541 persons listed as eligible to vote at the Mount Gay precinct, the Government proved that 222 did not vote and that 13 more were either dead, in the hospital, or in prison. This left a maximum of 306 who could have voted. Observers at the precinct throughout election day estimated that about 275 persons had actually voted. Nevertheless 348 votes were recorded as cast for candidates for the nominees for United States Senator, 328 for Congressman, 358 for State Senator, 458 for House of- Delegates, 375 for County Commissioner (long term), 365 for County Commissioner (short term), 371 for Justice of the Peace, and 371 for Constable.

4 The election contest, at which candidate Hager was one of the two presiding judges, was concluded on August 25, 1970. Although the court was required by statute to rule on the contest by September 17, 1970, see W. Va. Code Ann., § 3-7-7, it failed to enter a final order within the statutory period. Scaggs appealed to an intermediate appellate court, which granted an appeal. The Supreme Court of Appeals of West Virginia, however, ruled that the intermediate appellate court lacked jurisdiction since no decision had been rendered by the County Court within the statutory time allowed. See State ex rel. Hager v. Oakley, 154 W. Va. 528, 177 S. E. 2d 585 (1970).

5 Other gounds for exclusion argued before the District Court and in the briefs before the Court of Appeals have not been pursued here. These include a contention that introduction of the prior testimony had the effect of putting Tomblin and Browning on the witness stand in violation of their constitutional right to stand mute, a suggestion that since the testimony was given in a judicial hearing there might be Miranda problems, and the argument that the prior testimony of Tomblin and Browning was inadmissible impeachment evidence since both had exercised their constitutional right not to testify. See 481 F. 2d 685, 694.

The Court of Appeals recognized that it need not ordinarily consider grounds of objection not presented to the trial court. See Hormel v. Helvering, 312 U. S. 552, 556 (1941). This rule is not without its exceptions, however, particularly in criminal cases where appellate courts can notice errors seriously affecting the fairness or integrity of judicial proceedings. See United States v. Atkinson, 297 U. S. 157, 160 (1936). See also Hormel v. Helvering, supra, at 557. In view of the fact that petitioners did challenge the admissibility of the Tomblin and Browning testimony at trial, we think it was proper for the Court of Appeals to consider all grounds related to that underlying objection.

6 The rationale for both the hearsay-conspiracy exception and its limitations is the notion that conspirators are partners in crime. United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 253 (1940); Fiswick v. United States, 329 U. S. 211, 216 (1946). As such, the law deems them agents of one another. And just as the declarations of an agent bind the principal only when the agent acts within the scope of his authority, so the declaration of a conspirator must be made in furtherance of the conspiracy charged in order to be admissible against his partner. See Krulewitch v. United States, 336 U. S. 440, 442-443 (1949); Fiswick v. United States, supra, at 217; Wong Sun v. United States, 371 U. S. 471, 490 (1963). See generally 4 J. Wigmore, Evidence §§ 1077-1079 (Chadbourne rev. 1972).

7 See 5 J. Wigmore, Evidence § 1361 (3d ed. 1940); C. McCormick, Law of Evidence 460 (1954).

8 Of course, evidence is not hearsay when it is used only to prove that a prior statement was made and not to prove the truth of the statement. See Dutton v. Evans, 400 U. S. 74, 88 (1970) (opinion of Stewart, J.). See also Creaghe v. Iowa Home Mut. Cas. Co., 323 F. 2d 981 (CA10 1963); General Tire of Miami Beach, Inc. v. NLRB, 332 F. 2d 58 (CA5 1964); Safeway Stores, Inc. v. Combs, 273 F. 2d 295 (CA5 1960); Ford Motor Co. v. Webster's Auto Sales, Inc., 361 F. 2d 874 (CA1 1966).

9 Thus, in his opening argument the prosecutor said: 'T believe the evidence will show, frankly, that that election contest was full of perjurious testimony, full of lies. Some of it, the evidence will show, was solicited and caused by these defendants.” App. 22. The same point was made in closing argument. Tr. 1851-1852.

10 See 5 J. Wigmore, supra, n. 7, at § 1362. See also Colorificio Italiano Max Meyer, S. P. A. v. S/S Hellenic Wave, 419 F. 2d 223 (CA5 1969); Rossville Salvage Corp. v. S. E. Graham Co., 319 F. 2d 391 (CA3 1963); Superior Engraving Co. v. NLRB, 183 F. 2d 783 (CA7 1950), cert. denied, 340 U. S. 930 (1951).

11 Technically, of ccurse, the proffered evidence was hearsay in that the Government sought to prove the prior testimony of Tomblin and Browning by reading a transcript of the election contest hearing into evidence at the § 241 trial, rather than by calling as a witness a person who himself heard the Tomblin and Browning testimony. A well-recognized exception to the hearsay rule, however, permits the introduction of certified court transcripts to prove the testimony given at a prior proceeding. See generally 5 J. Wigmore, supra, n. 7, at § 1681. Nor is there any right-of-confrontation problem here, since petitioners did not suggest below that the transcript read at the § 241 trial did not accurately reflect the testimony actually given at the election contest hearing.

12 In briefing this case, all parties appear to have assumed that this sufficiency-of-the-evidence claim was properly before this Court. It seems clear, however, that this issue was presented neither to the Court of Appeals nor to us in the petition for a writ of certiorari. As indicated earlier, the § 241 question arose below only with respect to the admissibility of the prior testimony of Browning and Tomblin, and not in connection with any claim that the evidence was insufficient to support a verdict under the statute. We nevertheless consider the sufficiency-of-the-evidence claim here. We recognize that petitioners did raise before both the District Court and the Court of Appeals, and in the petition for a writ of certiorari a claim that the indictment was unconstitutionally vague, and the gist of their argument on this point was that the Government had charged a conspiracy to cast false votes for both federal and local candidates in order to survive a motion to dismiss the indictment, but had turned around at trial and proved only a conspiracy to cast false votes for the local candidates. This argument therefore raised the substance of petitioners’ present contention that the evidence was insufficient to show a conspiracy to cast false votes for federal candidates. Moreover, as we have had occasion to note, a claim that a conviction is based on a record lacking any evidence relevant to crucial elements of the offense is a claim with serious constitutional overtones. See, e. g., Thompson v. Louisville, 362 U. S. 199 (1960); Johnson v. Florida, 391 U. S. 596 (1968). See also Adderley v. Florida, 385 U. S. 39, 44 (1966). Accordingly, even though the sufficiency-of-the-evidence issue was not raised below with any particularity, we think the interests of justice require its consideration here. See Screws v. United States, 325 U. S. 91, 107 (1945) (opinion of Douglas, J.). Cf. Lawn v. United States, 355 U. S. 339, 362 n. 16 (1958).

13 We also find no merit in petitioners’ contention that the indictment was unconstitutionally vague. The indictment states that on May 12, 1970, a primary election was held in Logan County, West Virginia, for the purpose of nominating candidates for the offices of United States Senator, Representative to Congress, and various state and county public offices. It then charges each of the defendants with conspiring to injure and oppress the qualified voters of Mount Gay precinct in the free exercise and enjoyment of their “right to vote for candidates for the aforesaid offices and to have such vote cast, counted, recorded, and certified at their full value and given full effect The indictment further specifies that it was a part of the conspiracy “to cause fraudulent and fictitious votes to be east in said precinct ....’’ Pet. for Cert. 3b. We think it plain that the indictment gave petitioners adequate notice of the specific charges against them. We also note, and petitioners themselves concede, that the form of the indictment was similar to those used in other § 241 prosecutions. See United States v. Saylor, 322 U. S. 385 (1944); United States v. Kantor, 78 F. 2d 710 (CA2 1935); Walker v. United States, 93 F. 2d 383 (CA8 1937); Ledford v. United States, 155 F. 2d 574 (CA6), cert. denied, 329 U. S. 733 (1946).