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United States v. Same

decided: August 21, 1947.

UNITED STATES
v.
JOHNSON (TWO CASES). SAME V. MEMOLO. SAME V. GREENES.



Author: Goodrich

Before MARIS, GOODRICH, and KALODNER, Circuit Judges.

GOODRICH, Circuit Judge.

Ten defendants were indicted on the charge of a conspiracy*fn1 to obstruct the administration of justice.*fn2 The indictment was dismissed as to two of the defendants;*fn3 one died prior to trial; one was granted a severance because of illness; two were found not guilty; the remaining four were convicted,*fn4 sentenced, and have appealed to this Court. While a separate appeal is docketed for each appellant the majority of the points raised are common to the cases of all and this opinion will dispose of all four appeals.

The theory of the Government's case was that all the defendants were engaged in a continuing general conspiracy to debase the administration of justice. The conspiracy allegedly operated over a number of years and the prosecution sought to prove that the conspiracy existed by a showing of misconduct by the defendants with reference to specific pieces of litigation in the Middle District of Pennsylvania. The prosecution is not against any defendant for misconduct in a particular case however, nor is it for conspiring to do something illegal in an individual case. The theory is that a general conspiracy existed, which lasted over a period of time, and which is shown by what the parties did regarding the individual lawsuits. In some instances more than one of these cases was in the Court at one time. In others, only one such case was pending and sometimes there was a period during which the record is silent as to activities of the alleged conspirators.

We think there was sufficient evidence to support the Government's contention of a continuing conspiracy. The statute of limitations, therefore, runs only from the time of the last overt act. United States v. Kissel, 1910, 218 U.S. 601, 31 S. Ct. 124, 54 L. Ed. 1168; Brown v. Elliott, 1912, 225 U.S. 392, 32 S. Ct. 812, 56 L. Ed. 1136; Culp v. United States, 8 Cir., 1942, 131 F.2d 93. The period of limitations for the prosecution on a conspiracy charge is three years.*fn5 The indictment in this case was returned on September 11, 1945. The conspiracy existed over a period of fourteen years. Some of the acts necessarily occurred earlier than September 11, 1942, but these acts could be proved to show the existence and continuance of the conspiracy even though there could have been no prosecution for any substantive offense charged as an overt act. Shaw v. United States, 5 Cir., 1930, 41 F.2d 26. Appellants concede that this is correct but say that there are no overt acts proved which occurred within the period of the statute of limitations. If this is true, the point is of decisive importance. But an examination reveals certain acts which were committed after the crucial date. One was the sending of the $350.00 check by the defendant Greenes' brother, at Greenes' direction, to Donald Johnson. This occurred in October, 1942. Another was the filing by one Michael of the final account in the Central Forging case on July 9, 1943.

In this connection it is to be borne in mind that it is not necessary that an overt act in furtherance of conspiracy necessarily be a criminal act.*fn6 Indeed, an innocent act by a third party, if caused by previous act or contact on the part of one of the conspirators, would be enough.*fn7 Therefore, the filing of the trustee's report above referred to, while itself a perfectly legal act, may be an overt act in furtherance of a conspiracy if such filing is part of the general plan of the conspirators with regard to the subject-matter in which the report is filed. Since Donald Johnson is to have the benefit of the Trial Judge's instruction that nothing which occurred that was connected in any way with the Central Forging case should be considered in determining his guilt, Michael's filing in the Central Forging case cannot be used against Donald Johnson. But the $350.00 check transaction is certainly evidence admissible against Donald Johnson and it was within the province to believe that such transaction had as its purpose the covering up of an illegal transaction rather than a payment of an attorney's fee as Johnson testified. The Koppleman and Kizis incidents were overt acts which also occurred after September 11, 1942. These incidents, proved only by the admissions of Greenes and Memolo before the Grand Jury, are, of course, limited to those two defendants. But as to them they tend to show that the conspiracy still existed and do constitute overt acts.

The other major question involved in this appeal is whether there was sufficient evidence to sustain the verdict. The verdict necessarily involved a finding that the charge of a general continuing conspiracy was upheld and that the defendants found guilty were involved in it. The first point the appellants make in this connection is that the prosecution's whole case falls to the ground because the person alleged to have been the most important figure in the conspiracy and to whom all the acts of the other defendants headed, was acquitted. This defendant was a former District Judge. At the trial the presiding Judge pointed out to the jury that "the heart and core of the indictment in this charge" is that this Judge entered into an understanding with others, that he would be influenced in his administration of the law by other considerations than the law and the facts brought before him.*fn8 Nevertheless, the jury, thus apprized of the importance of this one figure in the alleged conspiracy, acquitted him, but convicted others who are said by the defendants to be of lesser importance.

There are two answers to the argument that the fact of this acquittal causes the whole case to collapse. One is that the jury could reasonably have found that persons around the Judge were conspiring to obtain illegal advantages, but that it did not necessarily follow that the Judge, himself, was concerned in the transactions. Cf. Joyce v. United States, 8 Cir., 1946, 153 F.2d 364. Appellants' contention that only court officials are capable of corruptly administering justice and that, therefore, persons cannot be guilty of a conspiracy to procure its corrupt administration unless the court official is corrupt is untenable. Cf. Glasser v. United States, 1942, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680. The second point is that the action of the jury in convicting some alleged conspirators and acquitting others is not required to be consistent in order to be legal.*fn9 If the defendants had been tried separately and separate juries had convicted some and acquitted others, the argument the defendants make on this point would be deprived of practically all its force. We know that one jury does not have to reach a result consistent with what some other jury has reached.Nor is the same jury required to be consistent in order to be effective. As Judge Learned Hand pointed out: "* * * the appellants of their fellows, however guilty. punishment of their fellows, however guilty. * * * we have nothing to do with the rational enmeshing of the two findings; * * * each need only bear its own defects." United States v. Austin-Bagley Corporation, 2 Cir., 1929, 31 F.2d 229, 233, certiorari denied 1929, 279 U.S. 863, 49 S. Ct. 479, 73 L. Ed. 1002. The case as to each one of the convicted defendants, therefore, must stand or fall according to its own strength or weakness, not because of what the jury did to some other defendant.*fn10

The case was complicated for the jury and for us by the fact that a great deal of important testimony, due to the various exclusionary rules of evidence, was not available against all of the defendants. Thus, some very damaging testimony of previous statements to a Grand jury was available only as against defendants Memolo and Greenes. Again, defendant Donald Johnson had previously been acquitted of charges growing out of one of the particular incidents which was part of the Government's case. He was entitled to such protection as the law gives him by the fact of that acquittal. His claim that he did not receive this protection will be considered later in the course of this opinion. The jury had to consider the testimony given in the course of a long trial and its different bearing upon different defendants. In this it was aided by the charge of the Trial Judge which, in this respect, was so clear that it has escaped criticism on the part of the appellants.

No desirable function is served by reiteration of testimony with regard to those defendants as to whom we concluded the evidence was sufficient to bring them into the general conspiracy charge. As to the appellants, Memolo and Greenes, the evidence is not only clear, but overwhelming.There is sufficient evidence in the record to permit the introduction of their admissions made before the Grand Jury; once these admissions are considered we virtually have a confession of guilt. As to the defendant Donald Johnson, there is not so strong a case because the damaging Grand Jury admissions were available only against those who made them, that is, the defendants Memolo and Greenes. Nevertheless, we think there is sufficient testimony so that the jury could have found, as they did, that the defendant Donald Johnson was included in the conspiracy.

With regard to the defendant Miller Johnson the case is much more difficult. There was testimony that indicated participation in one transaction among those charged to involve irregularities. It was to the effect that Miller Johnson approached one Townsend, who had been appointed coreceiver of the Williamsport Wire Rope Company and asked Townsend to pay half his monthly fees to Albert Johnson, Jr., and that the payments were so made. There are only two other incidents which appeared in the evidence. One was told by Judge Johnson's Secretary, to the effect that Miller Johnson came into the Judge's office while the latter was examining a financial statement which the Secretary had prepared for the Judge. The latter is alleged to have said to his son that "We would have to account in some way for this money." The third piece of testimony is to the effect that Miller Johnson and his brother, Donald Johnson, had dinner with one Michael in May, 1944,*fn11 On this occasion they were alleged to have told Michael that they had been subpoenaed and were being investigated and asked Michael whether he had been.

This is all which a careful combing of the record by Government counsel has produced concerning Miller Johnson. We very much desire to refrain from invading the province of a jury, whose business it is to find facts. Nevertheless, in this case, it is our obligation to state that the conclusion of guilty in Miller Johnson's case is not warranted by the testimony taken in the most favorable light for the Government. The participation in the Williamsport Wire Rope case, if the allegations were believed, has substance. But Miller Johnson was not being prosecuted for anything irregular he may have done in that case. He was being prosecuted for participation in a continuing conspiracy to obstruct justice and the learned Trial Judge told the jury that the fact that a defendant participated in one incident was not enough to prove him an actor in the play as a whole.*fn12

The second two incidents seem to us completely trivial and not to prove anything. This is a conclusion and not a reason. But if the conclusion is not supported by the recital of the incidents set out above, we do not think adding words as argument in support of our conclusion will give it any more weight.

The result of the above discussion is that we decide that the evidence was insufficient to establish Miller Johnson's participation in the conspiracy charged. Therefore, as to him, there must be a reversal with directions to enter a judgment of acquittal in his favor. Other reasons ...


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