Freeman v. United States , 146 F.2d 978 ( 1945 )

HAMILTON, Circuit Judge.

On March 6, 1940, appellant was convicted under a three-count indictment for a violation of the Internal Revenue Code, Title 26 U.S.C.A. Int.Rev.Code, § 2553(a), and also Title 18 U.S.C.A. § 88, Criminal Code, § 37.

On March 7, 1940, the court sentenced appellant to five years each on counts 1 and 2 and to two years on count 3, each sentence to run consecutively, and appellant was immediately incarcerated and is now confined in Alcatraz Penitentiary.

On February 17, 1942, appellant filed a motion in the original proceeding for correction of the sentence, claiming that he had been subjected to double punishment. He alleged that the two illegal sales of heroin on which counts 1 and 2 of the indictment were based were a single offense, and that the facts upon which the Government relied to prove this offense also, proved the offense of conspiracy charged in the third count and that the facts upon which the Government relied to prove the conspiracy count also proved the illegal sales counts. The trial court denied appellant’s motion and from the order of denial this appeal is prosecuted.

The evidence heard at the trial is not in the record. The premise of appellant’s contention is that from the face of the indictment there is shown the commission of only a single offense. The first two counts charged that appellant, Georgia Freeman and Blanch Williams, on October 10th and 11th, 1939, respectively, for $60 sold to Preston Robinson and Catherine Robinson, two ounces of heroin in violation of Internal Revenue Code, Title 26 U.S.C.A. Int. Rev.Code, § 2553(a). The third count charged the same defendants with violating Title 18 U.S.C.A. § 88, Criminal Code, Section 37, by conspiring to violate the above statute. The overt acts charged were the delivery of the heroin alleged to have been sold under counts 1 and 2 and the collection of the money therefor.

Separate sales of heroin, distinct from each other, although buyer and seller are the same in all the sales, not in or from original stamped packages and without written orders, are separate offenses, separately punishable. Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 76 L.Ed. 306.

Giving a fair construction to the language used in counts 1 and 2 of the indictment, each count charges a sale separate and distinct from the other. The offenses were separate and a sentence could be imposed on each count and made consecutive.

It is the general rule that a conspiracy to commit a crime is a different offense from the crime which is the object of the conspiracy. United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211; Ford v. United States, 273 U.S. 593, 619, 47 S.Ct. 531, 71 L.Ed. 793; Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450; Moss v. United States, 6 Cir., 132 F.2d 875.

There is excluded from the rule conspiracies to commit crimes which in their very nature require concerted action of all the participants. In such cases, the result has such a close connection with the objective offense as to be inseparable from it. United States v. Katz, 271 U.S. 354, 355, 46 S.Ct. 513, 70 L.Ed. 986; Lisansky v. United States, 4 Cir., 31 F.2d 846, 67 A. L.R. 67.

Clearly, the substantive offenses which were the objects of the present conspiracy did not from their nature require concerted action of two or more persons. One person could purchase, sell, dispense or distribute the drug mentioned without the aid of another.

Appellant further insists that under the facts alleged in the indictment, there was no violation of the Narcotic Act, except by those transactions which carried out the conspiracy and that under such circumstances to punish him separately for the substantive offenses and the conspiracy to commit them would be double prosecution or punishment, and that the rule applies that where the same evidence proves both the combination and the crime, which is the object of the conspiracy, only one offense is committed.

The test to be applied here is whether it was necessary in proving the sales to prove every essential element of the conspiracy. Kelly v. United States, 6 Cir., 258 F. 392.

Congress has the power to create separate and distinct offenses growing out of the same act, but whenever it appears that the proof of one offense proves every essential element of another growing out of the same act, the Fifth Amendment limits the punishment to a single act. Gavieres v. United States, 220 U.S. 338, 343, 31 S.Ct.

421, 55 L.Ed. 489.

The overt acts stated in the third count in the indictment are two in number: (1) That a defendant under counts 1 and 2 delivered the drug; (2) that another defendant collected the money. The third count of the indictment clearly alleged a conspiracy, but it is equally clear that counts 1 and 2 included every element of the conspiracy. All of the'parties to the conspiracy count were principals in the other two counts. There can be no doubt that the substantive offenses charged in the two counts required proof of joint action, just as it was required under the third count.

In the case of Krench v. United States, 6 Cir., 42 F.2d 354, appellant was indicted and convicted on three counts. The first charged the bringing of merchandise into the country in violation of the Tariff Act; the second, concealment of merchandise after it had been brought in; and third the ■conspiracy to bring into the country the merchandise mentioned in the other counts.

We there said that proof of the conspiracy was ample, but it was clear that proof of the substantive offense included every element of the conspiracy and that to impose a consecutive sentence on the third count was double punishment. The French ■case cannot be distinguished from the one at bar. It is plain from the face of the present indictment that the substantive offenses ■charged in the first two counts include ■every element of the offense charged in the third count. The United States insists that the French case is in conflict with the case of Moss v. United States, 6 Cir., 132 F.2d 87S, but we held there that the French ■case was distinguishable on the facts. It was there pointed out that the conspiracy count embraced many overt acts aside from the substantive offense.

The order of the District Court is reversed with directions to correct the sentence imposed on appellant by setting aside the sentence on count 3. The sentence on counts 1 and 2 will not be disturbed.