The opinion of the court was delivered by: LORD
This action is before the Court on Defendant's Motion to Dismiss Indictments 18412 and 18512.
The defendant was indicted on June 1, 1955 under indictment number 18412, with violation of 18 U.S.C.A. § 371 and 26 U.S.C.A. § 145(b). Subsequent to this, on September 20, 1955, a superseding indictment (indictment 18512) was returned by the grand jury. This latter indictment contained all the charges included in the former one; however, it also contained another offense, to wit, violation of 26 U.S.C.A. § 4047(e)(4).
Because of the overlapping of the two indictments and in the interests of brevity, I shall consider only indictment 18512 and the disposition accorded it will control both.
Indictment 18512 charges that the defendant was a Deputy Collector of Internal Revenue When the tax liability of one Francesco Mogavero was under investigation. Further, that defendant conspired with unknown persons to put Mogavero in fear of criminal prosecution and that defendant represented to Mogavero that their influence within the Internal Revenue was such that they could straighten out his difficulties by Mogavero paying defendant and his unknown associates $ 20,000.
The requisite overt acts charged in the indictment consisted of statements by both defendant and others to Mogavero that they could use their influence to procure termination of the investigation of his affairs and his tax liability reduced; demands by both defendant and another for the sum of $ 20,000 and finally receipt by defendant of that sum from Mogavero.
The issues raised by the briefs are:
1. Must an indictment charging a defendant with conspiracy in violation of 18 U.S.C.A. § 371, 26 U.S.C.A. § 145(b) and 26 U.S.C.A. § 4047(e)(4) allege an overt act to effect the object of said conspiracy?
2. Are the present indictments insufficient for failure to allege such an act?
3. Is indictment 18512 insufficient to charge a violation of 26 U.S.C.A. § 4047(e)(4) by reason of its failure to allege that the defendant was acting under the authority of a revenue law?
I will consider the issues in that order. The pertinent portions of 18 U.S.C.A. § 371 read as follows:
§ '371. Conspiracy to commit offense or to defraud United States
'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, * * *.'
It is expressly stated in section 371 that to have an actionable violation in the form of a conspiracy there must be an overt act in furtherance of the conspiracy thereby ...