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UNITED STATES v. GILBOY

February 6, 1958

UNITED STATES of America
v.
John P. GILBOY, Jr., William J. Green, Jr., Joseph Rochez, Frederick J. Raff, Robert W. Brown, John B. Kemmel, Herbert J. McGlinchey



The opinion of the court was delivered by: MURPHY

A Grand Jury duly impaneled *fn3" and sworn, inquiring into whether any violations of Federal Criminal laws occurred in the construction, by the Department of the United States Army and the Army Corps of Engineers, of the Tobyhanna Signal Depot, a military installation, in this district, *fn4" after many months of investigation, indicted all seven defendants, *fn5" charging them with conspiracy to defraud the United States, *fn6" described in great detail the modus operandi *fn7" and recited thirty-nine overt acts (two or more by each defendant, many of them in this district) to effect the object of a conspiracy. *fn8"

  The Federal Rules of Criminal Procedure designed to eliminate technicalities in criminal pleading and to be construed to secure simplicity in procedure (see Rule 2) provide in Rule 7(c), 'The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain * * * any other matter not necessary to such statement.' See United States v. Debrow, 1953, 346 U.S. 374, at page 376, 74 S. Ct. 113, 98 L. Ed. 92; United States v. Achtner, 2 Cir., 1944, 144 F.2d 49, at page 51; United States v. Amorosa, 3 Cir., 1948, 167 F.2d 596, at page 598; United States v. Martinez, D.C.M.D.Pa.1947, 73 F.Supp. 403, at pages 406-407; Berger v. United States, 1935, 295 U.S. 78, at page 82, 55 S. Ct. 629, 79 L. Ed. 1314. United States v. Debrow, supra, cites with approval from Hagner v. United States, 1932, 285 U.S. 427, at page 431, 52 S. Ct. 417, 419, 76 L. Ed. 861, 'The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S. Ct. 628, 630, 39 L. Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S. Ct. 434 (435), 480, 40 L. Ed. 606.' And see United States v. Crummer, 10 Cir., 1945, 151 F.2d 958, 962; United States v. Michener, 3 Cir., 1945, 152 F.2d 880, at page 886.

 An indictment charging a conspiracy ordinarily is sufficient if it follows the language of the statute and contains sufficient description of the object of the conspiracy and a sufficient statement of an overt act to effect the object of the conspiracy. Madsen v. United States, 10 Cir., 1947, 165 F.2d 507, at page 510, and see United States v. Amorosa, supra, 167 F.2d at page 598; *fn9" Jelke v. United States, 7 Cir., 1918, 255 F. 264, at page 275, 276-279; Rudner v. United States, 6 Cir., 1922, 281 F. 516, at page 518; Hill v. United States, 4 Cir., 1930, 42 F.2d 812, at page 814; Caywood v. United States, 9 Cir., 1956, 232 F.2d 220, 224; Potter v. United States, 1894, 155 U.S. 438, at page 444, 15 S. Ct. 144, 39 L. Ed. 214. Every element of the offense being set forth in the earlier part of the indictment, there is no necessity of repeating it. Evans v. United States, 1894, 153 U.S. 584, at page 580, 14 S. Ct. 934, 38 L. Ed. 830.

 While it is essential to the validity of an indictment that it shall advise the defendant of the nature and cause of the accusation (VI Amend. U.S. Constitution) and provide an ascertainable standard of guilt (V Amend. U.S. Constitution) and see Screws v. United States, 1945, 325 U.S. 91, at page 95, 65 S. Ct. 1031, 89 L. Ed. 1495, 'It is well settled that in an indictment for conspiring to commit an offense -- in which the conspiracy is the gist of the crime -- it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy, Williamson v. United States, 207 U.S. 425, 447, 28 S. Ct. 163, 52 L. Ed. 278, or to state such object with the detail which would be required in an indictment for committing the substantive offense, * * *. In charging such a conspiracy 'certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is necessary.' Williamson v. United States, supra, 207 U.S. 447, 28 S. Ct. 171 * * *.' Wong Tai v. United States, 1927, 273 U.S. 77, at page 81, 47 S. Ct. 300, at page 301, 71 L. Ed. 545; Thornton v. United States, 1926, 271 U.S. 414, at page 423, 46 S. Ct. 585, 70 L. Ed. 1013. *fn10"

 When the object of the conspiracy is the accomplishment of an unlawful act, the means by which the unlawful act is to be accomplished need not be set forth, Pettibone v. United States, 1893, 148 U.S. 197, at page 203, 13 S. Ct. 542, 37 L. Ed. 419; Rose v. United States, 9 Cir., 1945, 149 F.2d 755, at page 758, nor are particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy essential to an indictment. Glasser v. United States, 1942, 315 U.S. 60, at page 66, 62 S. Ct. 457, 86 L. Ed. 680. It is not necessary to set forth matters of evidence. Bannon and Mulkey v. United States, 1895, 156 U.S. 464, at page 469, 15 S. Ct. 467, 39 L. Ed. 494. As to pleading an overt act, Dealy v. United States, 1894, 152 U.S. 539, at page 543, 14 S. Ct. 680, 38 L. Ed. 545; Goldberg v. United States, 5 Cir., 1924, 297 F. 98, at page 101, the indictment is sufficient if one overt act is well pleaded. Onderdonk v. United States, 5 Cir., 1926, 16 F.2d 116; De Lacey v. United States, 9 Cir., 1918, 249 F. 625, 628, L.R.A.1918E, 1011. It need not state how the overt act tended to further the conspiracy. United States v. Westbrook, supra, 114 F.Supp. at page 199; Marron v. United States, 9 Cir., 1925, 8 F.2d 251, 258. Nor is it necessary to allege which of the various ways the government might be defrauded was in the minds of the conspirators, nor that they all were. Crawford v. United States, 1909, 212 U.S. 183, at pages 191-192, 29 S. Ct. 260, 53 L. Ed. 465.

 18 U.S.C.A. § 371 provides, 'If two or more persons conspire * * * to defraud the United States * * * 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 * * * or imprisoned * * * or both. * * *'

 'A conspiracy is a partnership in crime.' Pinkerton v. United States, 1946, 328 U.S. 640, at page 644, 66 S. Ct. 1180, at page 1182, 90 L. Ed. 1489. 'An agreement to commit a crime or to engage in criminal activities attended by one or more overt acts.' Duke v. United States, 1956, 5 Cir., 233 F.2d 897, at page 900. And see United States v. Perlstein, 3 Cir., 1942, 126 F.2d 789, at page 794. '* * * a combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means * * *.' Pettibone v. United States, supra, 148 U.S. at page 203, 13 S. Ct. at page 545; Duplex Printing Press Co. v. Deering, 1921, 254 U.S. 443, at page 465, 41 S. Ct. 172, 65 L. Ed. 349, 16 A.L.R. 196; Marino v. United States, 9 Cir., 1937, 91 F.2d 691, at page 693, 113 A.L.R. 975.

 A conspiracy is constituted by an agreement, i.e., the result thereof, not the agreement itself. It need not be explicit or in writing. It may be implicit. 'Not the form or manner in which the understanding is made, but the fact of its existence and the further one of making it effective by overt conduct are the crucial matters.' Direct Sales Co. v. United States, 1943, 319 U.S. 703, at page 714, 63 S. Ct. 1265, at page 1270, 87 L. Ed. 1674, and see Wright v. United States, 5 Cir., 1901, 108 F. 805, at pages 808, 810; United States v. Armour & Co., 10 Cir., 1943, 137 F.2d 269, at page 270; United States v. Anderson, 7 Cir., 1939, 101 F.2d 325, at page 330. It is not essential that the precise person, time and place or precise methods be agreed upon. Williamson v. United States, supra, 207 U.S. at page 449, 28 S. Ct. at page 171; Rose v. United States, supra, 149 F.2d at page 758.

 Evidence to prove it need not be direct; it may be and usually is circumstantial. American Tobacco Co. v. United States, 1946, 328 U.S. 781, at page 809, 66 S. Ct. 1125, 90 L. Ed. 1575.

 It is not necessary that all defendants come into it at one time or that they should all know each other, the complete and exact scope of the conspiracy or all of its ramifications, Marino v. United States, supra, 91 F.2d at page 696; Blumenthal v. United States, 9 Cir., 1946, 158 F.2d 883, at page 888; Duke v. United States, supra, 233 F.2d at pages 900-901; United States v. Weinberg, D.C.M.D.Pa.1955, 129 F.Supp. 514, at page 524, affirmed 3 Cir., 1955, 226 F.2d 161; United States v. Cohen, 3 Cir., 1952, 197 F.2d 26, at pages 28, 29; United States v. Perlstein, supra, 126 F.2d 789; United States v. Harrison, 3 Cir., 1941, 121 F.2d 930, at page 933; Lefco v. United States, 3 Cir., 1934, 74 F.2d 66, at page 68; Poliafico v. United States, 6 Cir., 1956, 237 F.2d 97, at pages 103, 106; that all contribute alike either to the making of the scheme or its fulfillment. It is enough if at some time during the continuance of the conspiracy there is a common design and purpose applicable to all. Wellman v. United States, 6 Cir., 1955, 227 F.2d 757, at page 768. When men enter into an agreement for an unlawful end they become ad hoc agents for one another. What one does pursuant to their common objective all do. Van Riper v. United States, 2 Cir., 1926, 13 F.2d 961; United States v. Harding, 1936, 65 App.D.C. 161, 81 F.2d 563, 567; United States v. U.S. Gypsum Co., 1948, 333 U.S. 364, at page 393, 68 S. Ct. 525, 92 L. Ed. 746; cf. Delli Paoli v. United States, 1957, 352 U.S. 232, at page 237, 77 S. Ct. 294, 1 L. Ed. 2d 278; Delaney v. United States, 1924, 263 U.S. 586, 44 S. Ct. 206, 68 L. Ed. 462. 'The fact that certain types of fraudulent practices occurred during one period and other types at different periods is without significance.' Nye & Nissen v. United States, 1949, 336 U.S. 613, at page 617, 69 S. Ct. 766, at page 769, 93 L. Ed. 919. It may be that the success of one venture depends upon the success of the whole. United States v. Cohen, supra, 197 F.2d at page 28, and see Blumenthal v. United States, 1947, 332 U.S. 539, at page 556, 68 S. Ct. 248, 92 L. Ed. 154.

 Once a conspiracy is clearly established, slight evidence may be sufficient to connect a defendant with it. United States v. Cohen, supra, 197 F.2d at page 29. Once proved the conspiracy must be deemed to continue until the contrary is established. United States v. Perlstein, supra, 126 F.2d at page 798; Hyde v. United States, 1912, 225 U.S. 347, 367, 370, 32 S. Ct. 793, 56 L. Ed. 1114. As to withdrawal, see Pinkerton v. United States, supra, 328 U.S. at page 646, 66 S. Ct. at page 1183, 90 L. Ed. 1489; United States v. Kissel, 1910, 218 U.S. 601, at page 606, 31 S. Ct. 124, 54 L. Ed. 1168; Marino v. United States, supra, 91 F.2d at page 696; United States v. Cohen, supra, 197 F.2d at page 29.

 Those having no knowledge of the conspiracy are not conspirators. United States v. Falcone, 1940, 311 U.S. 205, 210, 61 S. Ct. 204, 85 L. Ed. 128; cf. Direct Sales Co. v. United States, supra. 319 U.S. at pages 711, 713, 63 S. Ct. at pages 1269, 1270. An intention to become a party must be predicated upon some affirmative action. United States v. Harrison, supra, 121 F.2d at page 933. If one has knowledge of the conspiracy and with that knowledge intentionally does some act or thing in furtherance thereof he may be held liable. Duke v. United States, supra, 233 F.2d at page 901; cf. Interstate Circuit Inc., v. United States, 1939, 306 U.S. 208, at page 220, 59 S. Ct. 467, 83 L. Ed. 610; Martin v. United States, 10 Cir., 1938, 100 F.2d 490, at page 495, and cf. Canella v. United States, 9 Cir., 1946, 157 F.2d 470. If so, he adopts as his own the past and future acts of all his conspirators. United States v. Anderson, supra, 101 F.2d at pages 332, 333.

 The purpose of § 371 is to protect the government from impositions through conspiracy to cheat and defraud in respect of its rights and privileges, operations and functions, as well as in respect of its property. It prohibits a conspiracy "to defraud the United States in any manner or for any purpose". United States v. Keitel, 1908, 211 U.S. 370, at page 393, 29 S. Ct. 123, at page 130, 53 L. Ed. 230; Heald v. United States, 10 Cir., 1949, 175 F.2d 878, at page 880; United States v. Weinberg, supra, 129 F.Supp. at pages 523, 524; Id., 226 F.2d at page 167, and cases cited. 'The indictment charges that the United States was defrauded by depriving it of its lawful governmental functions by dishonest means; it is settled that this is a 'defrauding' within the meaning of the * * * Criminal Code. Hammerschmidt v. United States, 265 U.S. 182 (at pages 185, 188), 44 S. Ct. 511, 68 L. Ed. 968.' Glasser v. United States, supra, 315 U.S. at page 66, 62 S. Ct. at page 463. See Nye & Nissen ...


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