The opinion of the court was delivered by: KRAFT
The defendants, Klosterman, Deeney and Stafford, were jointly indicted in one indictment of two counts. The first count charged conspiracy,
in this and other judicial districts, (a) to defraud the United States, (b) to commit the offense of bribery
against the United States. Of the three overt acts described in this count, only one, by Klosterman, was alleged in this judicial district. The second count of the indictment charged bribery of one King, a Special Agent of the Intelligence Division of the Internal Revenue Service.
Defendant Deeney was also separately indicted for conspiracy,
in this and other judicial districts, to defraud the United States as an employee of the United States acting in connection with the revenue laws. This indictment, which alleged the same overt acts as the first count of the other indictment, named but did not indict Klosterman and Stafford as Deeney's fellow conspirators.
At the close of the Government's case the defendants' motions for judgment of acquittal were denied. Each defendant closed without offering evidence and moved again for judgment of acquittal. The court reserved decision on the latter motions and submitted the case to the jury which acquitted Klosterman of conspiracy but, otherwise, found all the defendants guilty of the charges against them. Timely renewals of the motions were made including, in the alternative, motions for new trial.
In support of their motions for judgment of acquittal upon the conspiracy counts on which they were respectively found guilty, Deeney and Stafford contend that this court is without jurisdiction, under the evidence, because the conspiracy was not formed nor was any act to effect its object done in this judicial district.
18 U.S.C. § 371 provides:
'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, each shall be fined * * *.'
Though the jury, by its verdict of guilty on the substantive bribery count, determined that Klosterman committed the act of bribery in this district, it nevertheless acquitted him of conspiracy. The defendants, conceding that inconsistency in a verdict, per se, affords them no legal basis for relief, urge that this verdict was so patently inconsistent as to impel a court to grant a new trial in the interest of justice. We reject the premise of inconsistency. The indictment charged that Klosterman, Deeney and Stafford were all conspirators and the Government by its evidence tried so to convince the jury. The jury was not obliged to accept or reject, in toto, the Government's theory. From the evidence the jury was warranted in concluding that the actual conspiracy was between Deeney and Stafford, whose prime motive was to procure for themselves a substantial cash payment from Klosterman as a reward for the successful solution of his tax problems by the bribery of King.
The statute explicitly requires the overt act to be done by one or more of the conspirators. Klosterman's acquittal of conspiracy determined that the only alleged overt act done in this district was done by one who was not a conspirator. All other evidence related to events in the State of New Jersey. Since it is now resolved that only Deeney and Stafford were the conspirators and that they neither conspired nor did any overt act within this district their prosecution in this district upon the conspiracy counts cannot be sustained.
The motions of Deeney and Stafford for judgment of acquittal upon the bribery count are founded essentially upon the contentions that (1) this court lacked jurisdiction because they committed no act within this district, (2) the evidence obliged the court to determine, as a matter of law, that the defense of entrapment was established. Klosterman's motion rests on the latter contention alone.
Klosterman concedes that, except for his defense of entrapment, the evidence establishes his guilt of bribery. The bribery occurred in the Hotel Bartram, Philadelphia. Neither Deeney nor Stafford was present when Klosterman paid the $ 5,000 bribe to King. No evidence established the presence of either in this district before, at or after the bribe was paid. The evidence showed only that they were in New Jersey and that whatever they did was done there.
Jurisdiction of this court must rest, therefore, on 18 U.S.C. § 2(a)
and Rule 18, Federal Rules of Criminal Procedure;