The naked use of force and violence, and the placing in fear of imminent peril to one's physical well being by resort to hoodlum tactics, is, indeed, as efficient and calculating an artifice to achieve dominion of another's property as would be a physical and possessory seizing.
I am satisfied that the jury could have concluded, under the broad purview of the statute, that the overt acts, threats and violence on the part of defendants constituted robbery, more particularly, depriving the persons in possession of dominion and control over the vehicle and cargo. United States v. De Normand, 2 Cir., 149 F.2d 622.
An additional question arises as to Defendant Baurhenn in view of his conviction of the conspiracy count and simultaneous exoneration from guilt of the substantive offenses in Counts One and Two of the indictment.
The legal proposition posed is whether or not a verdict of guilty as to a conspiracy count predicated upon a violation of the Hobbs Act can stand when the defendant has been found not guilty of the substantive offense.
The law is well settled and universally accepted in conspiracy proceedings that as soon as a person joins a conspiracy, he is equally as guilty as he would have been if he had joined the conspiracy when it began, and he assumes responsibility for all that has been done before he joins. Also, the fact that the person plays a lesser or even a minor part in a conspiracy and is not the dominant member of a conspiracy in no way lessens his guilt.
The evidence clearly establishes that Defendant Baurhenn was present when the truck operator was beaten, and indeed held the operator while the others beat him.
The fact that defendant was acquitted as to the substantive crime would not preclude his conviction of conspiracy to commit said crime. United States v. Winters, 2 Cir., 158 F.2d 674.
Motions for judgment of acquittal will be refused.
Motion for New Trial
In addition to the contentions raised in support of judgment for acquittal, defendants premise their request for new trial upon the proposition that the court committed substantial error in not charging the jury that they could only convict upon a finding that the defendants intended to rob Moore and/or Honaker of the tractor-trailer.
No such request for additional charge was made by the defense at the close of the court's charge. Nor was such reason advanced for new trial in the written motion, and was brought to the court's attention for the first time during oral argument.
Defendants have failed to make timely request for additional charge and have failed to comply with the Rules of Federal Criminal Procedure. Rule 30, 18 U.S.C.A.; Fowler v. United States, 5 Cir., 242 F.2d 860.
Nevertheless, in this connection, the court meticulously explained the offense, presented the definition of robbery as contained in the statute, and charged with extreme caution on the issue of burden of proof and reasonable doubt as to each count of the indictment as to all defendants. The charge was clearly sufficient. United States v. Gordon, 3 Cir., 242 F.2d 122.
Upon a most detailed review of the record, I must conclude that the jury could find that the acts of defendants were attempts to obstruct, delay and affect the movement of articles or commodities in interstate commerce, and that sufficient evidence was adduced to find that this attempt was by robbery.
Furthermore, a substantial basis exists to conclude beyond a reasonable doubt that all defendants entered into the conspiracy charged to violate the Hobbs Act, that they were all part of said plan and scheme when the overt acts were committed and participated in one degree or another to effectuate the reasons for the conspiracy.
Cognizant of the prerogative of the jury to resolve issues of credibility, assuming the truth of the government's evidence and giving the government the benefit of all legitimate inferences to be drawn therefrom, and further recognizing that it is not my prerogative to weigh the evidence, it is my considered judgment that the verdict of guilty as to each count must be sustained. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680; United States v. Nystrom, supra.
Motion for new trial will be refused.
An appropriate Order is entered.