Williams v. United States , 179 F.2d 644 ( 1950 )

SIBLEY, Circuit Judge.

This appeal from a conviction and sentences to penitentiary imprisonment and fine under Criminal Code, Sec. 19, 18 U.S. C.A. § 51, 1926 Ed. [now § 241], for conspiracy to deprive of rights secured by the Constitution and laws of the United States, presents novel, interesting and important questions. Those principally argued are: Does the indictment charge a crime ? Does Section 19 as -here applied afford legislative due process in defining the crime ? Did the charge of the court rightly present the essentials of the crime in refusing to charge that “wilfulness” was an essential? Was a former acquittal of substantive offenses involving the same transactions an adjudication that the acts there charged were not done or counselled, aided or abetted by appellants? Was there error in refusing a mistrial because of newspaper publications during the trial? Was due process denied by the institution of an oppressive prosecution for perjury in the former trial, which intimidated appellants from testifying in this trial? Motions for acquittal were also made by each appellant and overruled.

Very briefly stated the main facts and the course of the prosecution were these: The corporate appellant, Dania Supply Company, doing a lumber business, thought that thefts of lumber were being committed by unknown persons, and in the spring of 1947 it employed the appellant Williams, who headed a detective agency, to work on the case. Williams had working with him the appellants Bombaci and Perry, and also one Giroux, whom he placed on Dania Supply Company’s payroll as its employee in the lumber yards to spy on other employees. Yuhas, an office employee of Dania Supply Company, though not an officer, was present during beatings and abuses testified about. Appellant Ford was and is a policeman of the City of Miami, Florida, and was at the request of the County Solicitor for an officer, directed by the Chief of Police to assist in the investigation. Ford was present at some of the beatings, but neither he, nor Yuhas nor Perry did any violence, and according to some of the witnesses for the prosecution remonstrated against it. He did at some time during the proceedings arrest the persons beaten and did take them all except one to the jail and “book” them,, and they were kept in jail from Friday night till Monday afternoon, when they were released on bond. It does not appear whether they.were ever prosecuted. Since the arrests .apparently were based on written confessions extorted from them and repudiated on their release, we assume there was no prosecution. Williams was the head and front of the misconduct, his associates calling him “Chief”. He directed what was done and he and Bombaci delivered the blows. Four employees of the corporation were, one by one over a period of three days, brought, not under arrest, into a small building on the corporation’s premises, Yuhas being present, interrogated as to any theft, and each denying participation in or knowledge of any, each separately was cursed, threatened, kicked or beaten, required to face a brilliant light and questioned for hours, till in exhaustion each signed what was asked of him, and save one, each was arrested and jailed as above stated. .The matter was reported to federal authorities and an indictment found in eight counts, four under Criminal Code Sec. 20, 18 U.S.C.A. Sec. 52 [now § 242], charging deprivation of his rights under the Fourteenth Amendment as to each of the four beaten persons, and four counts under Sec. 19, 18 U.S.C.A. Sec. 51, [now § 241], charging conspiracy as to each such person’s rights. Giroux, the spy, pleaded guilty, turned State’s evidence, and received a suspended sentence. The corporation not having been included in .this indictment, another similar indictment was found, omitting Giroux and including the corporation as a defendant. This went to trial, and the jury convicted Williams on the counts under Sec. 20, but acquitted the other defendants; and made a mistrial on the counts under Sec. 19 which charged a conspiracy. The defendants (except the corporation) had testified in their own behalf, and they were indicted for perjury. A new indictment was also found, being that now before us, which, has four counts under Sec. 19, substantially like’ the' four counts on which the mistrial occurred. On this last indictment each defendant was convicted and sentenced, none of them testifying, and Williams, Bombad, Perry and Ford appeal.

1. The indictment in each count charges that the defendants conspired to injure, oppress, threaten and intimidate a named person in the free exercise and enjoyment of rights and privilges secured to him by the Fourteenth Amendment of the Constitution, towit, the right not to be deprived of liberty without due process of law; the right to be secure in his person while in the custody of the State of Florida; and to be immune from illegal assault and battery while in the custody of persons acting under color of the laws of Florida, by persons exercising the authority of the State of Florida; and the right to be tried and punished, if guilty, by due process of law under the laws of Florida. Ford, Williams and Perry were alleged to 'have, and to have conspired to use, authority under the State of Florida. Details were alleged as to intended assaults, 'beatings and torture to get confessions, or testimony against others, concerning thefts from Dania Supply Company.-

The indictment follows the statute in its generalities, and is sufficient in its specifics to be a good criminal pleading, and if it fails to allege a crime it is because the statute fails validly to create such a one. The failure lies in the application of the statute to the provision of the Fourteenth Amendment, “Nor shall any State deprive any person of life, liberty, or property, without due process of law”, because of the extreme vagueness of the quoted clause. Reference is made to the discussions of a similar question touching Sec. 20 in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, 162 A.L.R. 1330, wherein by a closely divided court that statute was upheld because it provided that “wilful” violations only were to be crimes, and that meant that the accused, exercising the power of the State, not .only deprived another of a federally secured right, but knew it was such, and wilfully flouted the Constitution and laws of the United States. This indictment does not charge these defendants with “wilfulness”, nor does the statute mention it, and the judge refused to give the jury on request charges that “wilfulness” was a necessary element of the case.

- 2. The Congress and the federal court are themselves faced here with the provision of the Fifth Amendment that “No person shall * * * be deprived of life, liberty, or property, without due process of law”, and it is found right in the midst of provisions in the Fifth and Sixth Amendments about federal prosecutions for crime. It is well understood that “due process” applies not only to court procedure, but also to legislation, especially in criminal matters. There are no common law federal crimes, but all are created by statute, though common law words in the statute may take their intended meaning from the common law. Not only must the accusation inform the accused for what he is to be tried, but due process requires that the statute must inform the citizen in advance by a reasonably ascertainable standard what the crime shall be. A judge may not establish the standard, save by reasonable interpretation, after the deed is done, for that is in substance to give the statute life ex post facto, which the Constitution forbids also. All this we understood to be admitted by all the justices in the opinions in the Screws case. The word “wilful” in Sec. 20 was held by the maj ority to mean that the accused knew that the federal right existed and intentionally and purposely violated it, and his knowledge and wilfulness made him a criminal. This court, so understanding, held in Pullen v. United States, 5 Cir., 164 F.2d 756, that the word wilful, or its equivalent, was indispensable in an indictment under Sec. 20.

Sec. 19 differs much from Sec. 20, though both have to do with federally secured rights. Sec. 20 creates a misdemean- or offense; it speaks of color of law, and of “inhabitant of any State”, and of discrimination in punishment on account of alienage or color or race. It punishes acts. Sec. 19 punishes only conspiracy; it makes no reference to Sec. 20, or to color of law, or to State, or to race or color; it adds also a separate and independent crime, the act of two or more persons going in disguise on the highway or premises of another with the bad intent named; and the punishment is that of felony, and ineligibility to hold office. Wilfulness is not mentioned, nor is “intent” in the defining of the crime of conspiracy. It does not protect “inhabitants”, but only “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”. In the conspiracy provision, the Congress had in mind the federal rights and privileges which appertain to citizens as such and not the general rights extended to all persons by the clause of the- Fourteenth Amendment. The citizen’s rights are specifically stated in the Constitution and statutes, and in them may be found a standard of conduct. Such was the case in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, when the right of the citiz'en to vote for a Congressman was involved. Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274, like the Classic case, involved the right of a citizen to vote; the Fifteenth and not the Fourteenth Amendment was rested upon. We are of opinion that this provision of Sec. 19 was not intended to include rights under the due process clause of the Fourteenth Amendment secured not to citizens only, but to everyone. The trouble about the vagueness of the Fourteenth Amendment as a standard of individual conduct is thus escaped. By eliminating the vague clause of the Fourteenth Amendment, which is addressed to the States alone, we escape also the question about the defendant’s acting under State authority, or col- or of State law.¹

We do not doubt the power of Congress to make it a crime of conspiracy -to violate this clause of the Fourteenth Amendment. Under Art. 1, Sec. 8, cl. 18, it has the power to protect by' criminal sanctions any violation of federal rights, because necessary and proper to their preservation. The Fourteenth Amendment gives expressly power to enforce it by appropriate legislation. But Sec. 19 contains no reference to the Fourteenth Amendment, and we do not think the Amendment was contemplated in the provision for the protection of citizens in their rights.

But if we are wrong in this view, and the Fourteenth Amendment is contemplated by Sec. 19 as it is in Sec. 20, we are faced by the absence of the word “wilful” to help the vagueness. It would certainly be strange that in the same Act of 1870 the Congress should punish the consummated deprivation of rights by such acts as are here charged only when wilfully done, and only as a misdemeanor; but should punish as a ten year felony with deprivation of the power to hold federal office, the bare conspiring to do such a thing though not wilfully, and with nothing more in fact done.

3. This conclusion should end this case, but since it may be overruled, we will express an opinion on the other questions before us. The word “conspire” indeed has some connotation of criminality, and there was in the plan alleged abundant criminality under the State law, ranging from assault and battery and false imprisonment to subornation of perjury, but we do not think the word has the force or effect of “wilfully” in Sec. 20. But if it has, the court erred in not giving the requests to charge that wilful deprivation of a known federal right was meant and was a necessary element of the conspiracy. The judge struck the word wilful everywhere. He did charge that a “specific intent” to deprive of the constitutional rights alleged was necessary, which might be understood as meaning that the rights were known to be such. But the judge forestalled that understanding by charging at the request of the prosecution: “All that is required in order for a conspiracy to exist is that the defendants should have acted in concert and with an express or implied understanding to produce a desired result. * * * No formal agreement between the parties is essential to the formation of the conspiracy, for the agreement may be deemed to have been established if there be concert of action, all the parties working together understandingly with a single purpose. * * * This does not mean that they would understand that what they were doing would be a violation of law. All that is necessary is that they should understand what they were doing. If what they thus understandingly cooperate to do is a violation of law, in this case a deprivation of Constitutional rights, then the conspiracy will have been established even though the participants did not know that what they were doing would in fact be deemed to have been a deprivation or violation of any person’s constitutional rights.” (Emphasis added.) This charge clearly states that knowledge that constitutional rights would be violated is not necessary to the establishment of this crime, but the conspiracy would be established if the parties cooperated in a common purpose and understood what they were doing. The court’s attention was called to the inconsistency of these charges, but neither was withdrawn. The contradiction stood. The jury were not told that “conspire” means with wilful intent to deprive of known constitutional rights, which in the Screws case was held would justify making deprivation under this vague clause of the Fourteenth Amendment a crime under a general reference to rights secured by the Constitution and laws. The charge, and the refusals to charge, were erroneous, even if the indictment be sustainable.

4. As to the effect of the former acquittal of appellants, except Williams, on counts under Sec. 20 which appear to state the very same acts and transactions which the present indictment charges a conspiracy to perform, we are of opinion that there was no former jeopardy or former acquittal which would bar a trial of the conspiracy counts in the present indictment. A former jeopardy or an acquittal to be thus effective must be of the same offense, and it is well established that a conspiracy to do an unlawful act is not the same offense as the doing of it. No overt act is eyen required to complete a conspiracy under Sec. 19, but the crime is completed by the agreement. If the thing conspired to be done is not done it does not prevent conviction for the conspiracy, and a jury’s finding that it was not done does not adjudicate that there was no agreement to do it. Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489; United States v. Rabinowich, 238 U.S. 78, 85, 35 S.Ct. 682, 59 L.Ed. 1211; Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362; Woodman v. United States, 5 Cir., 30 F.2d 482. But the claim is also made here, that if there is no complete bar to this prosecution there is an adjudication of a fact issue involved in it, to-wit that these defendants did not commit or counsel or aid or abet the beating and other mistreatment of the four persons named in the counts of the indictments. Proof was offered that the transactions were the same and that the court in the former trial charged the jury that if the defendants did the things charged, or counseled or commanded or aided and abetted the doing of them, they were severally guilty. Only Williams was found guilty, and the others not guilty. While an adjudication in a civil case is in general of no force in a criminal prosecution, and vice versa, either as a complete bar by res judicata or as settling some issue actually tried, 50 C.J.S., Judgments, § 754(b), it is otherwise as to two criminal cases prosecuted by the same government against the same defendant or defendants, and the principles of adjudication are applied, and are not supplanted by the Constitution’s provision against former jeopardy. 50 C.J.S., Judgments, § 754(a), citing Collins v. Loisel, 262 U.S. 426, 43 S.Ct. 618, 67 L.Ed. 1062; United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161, 3 L.R.A. 516. A question or issue determined by a prior' acquittal may not be relitigated in a criminal proceeding against the same person. ' It has been so held where one prosecution was for the substantive offense and the other for conspiracy to commit it. United States v. McConnell, D.C., 10 F.2d 977; United States v. Meyerson, D.C., 24 F.2d 855; United States v. Morse, D.C., 24 F.2d 1001; United States v. De Angelo, 3 Cir., 138 F.2d 466. Where, as here, conspiracy was the issue in one case and aiding and abetting in the other, the two issues were thought so nearly identical as to prevent a retrial: Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180. In the present case the direct evidence of conspiracy is slight, and absent as to some defendants, reliance being put on evidence that they were all present when the beatings and other things were done and did not try to stop them, but some did some things to help. The adjudication that only Williams did the wrong and the others did not counsel, aid or abet him in doing it, would be very helpful to these others in rebutting the inference that there was a previous conspiracy to do it. For this evidentiary purpose the record and the charge of the court to show what was tried before, were admissible and it was error to exclude them.

5. The indictment for perjury may have discouraged these defendants from testifying again and thus embarrassed their defense, but there was no cause therein for mistrial and no want of due process. The perjury indictment was not before the jury, and so far as appears, unknown,to them. Any witness may be indicted for perjury if he swears falsely. He ought to fear nothing if he swears truthfully. The risk of unjust prosecution is present when any witness.testifies. We think the pendency of a perjury indictment against a defendant does not prevent his being tried on some other charge, notwithstanding his former testimony would be pertinent in the present cáse. Mistrial for newspaper comments does- not seem to have been required.² The same thing would not probably occur again, if there should be a new trial.

The judgments appealed from are reversed, and direction given to quash the indictment.

WALLER, Circuit Judge concurred in the foregoing and also filed the following opinion.

1 . In the Classic case, 313 U.S. at pages 331 and 332, 61 S.Ct. at pages 1045, 1046, the dissenting justices forcefully stated the necessity that a federal statute creating a crime shall define what is to he punished, and they cited some of - the cases. The majority thought that the right to vote effectively for Congressman, though in a primary election which would control the final election, was so clearly a constitutional right of a citizen that the broad words of the statute were definite enough to cover that case. The negative words of the due process clause of the Fourteenth Amendment do not create or mention citizens’ rights, though for some purposes they may cover and protect them. They are insufficient to define a crime.

2 . The comments related only to Dania Supply Company, who is not an appellant. It does not appear that any juror read them. In the charge the court twice instructed the jury to consider only the evidence in the case and nothing that they may have heard outside the court or read in the newspapers.