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UNITED STATES v. BARNES

January 7, 1963

UNITED STATES of America
v.
Joseph W. BARNES, Robert McDevitt, a/k/a Charles Robert McDevitt, Charles J. Doheny, Samuel Miller and Elias Dubas



The opinion of the court was delivered by: GRIM

According to the government's brief, *fn1" the defendant Barnes, employed by the First Pennsylvania Banking and Trust Company, *fn2" embezzled some $ 285,000 from his employer over a nine-month period in 1961. He used this money to gamble on sporting events, placing bets with the defendant McDevitt, a bookmaker, who learned during the period in question that Barnes was taking the money from the bank. The bets were in large amounts, many for over $ 5,000 each, and at least one for $ 20,000. Because of their magnitude, McDevitt 'laid off' the bets with the defendants Miller and Dubas in much the same way that an insurance company, finding a risk too large for it to carry alone, will divide the risk among, or reinsure it with, other insurers. Miller and Dubas also learned that the money Barnes was betting was being taken by him from the bank. At one time or another during the betting both Miller and Dubas had personal contact with Barnes.

On the basis of this alleged state of facts a fifteen-count indictment was returned against Barnes, McDevitt, Miller, Dubas and Doheny. Barnes was indicted in one count for embezzling the money, in violation of 18 U.S.C. § 656. In another count all the defendants were indicted under 18 U.S.C. § 371 for conspiracy to have Barnes embezzle the money, to have the other four defendants receive and dispose of the embezzled money, and to have the same four defendants aid, abet, and counsel and commission of those offenses.

 Defendants Miller and Dubas have moved to dismiss the indictment. *fn3"

 CONSPIRACY

 Count I of the indictment charges conspiracy. Defendants Miller and Dubas attack Count I on the grounds (a) that it is vague and uncertain and does not adequately or fully inform the moving defendant of the exact nature of the charges against him in that the allegations of fact and the overt acts alleged are insufficient, uncertain, and ambiguous, and the count is insufficient in form and substance to plead the judgment in bar in another prosecution for the same offense; (b) that the overt acts do not set forth any factual evidence of the conspiracy, do not indicate that any illegal agreement was entered into by the moving defendant and others, and fail to show that he acted in concert with the others to accomplish an unlawful purpose; (c) that the count fails to set forth the necessary facts constituting the corpus of the substantive offense which was to be the object of the conspiracy; (d) that the count and the overt acts do not indicate the commission of any criminal acts by the moving defendants; and (e) that the count is factually insufficient to charge the moving defendant with violating the statutes enumerated in the indictment.

 Does Count I stand up in the face of the attack?

 Count I charges that from August 7, 1961, to December 27, 1961, at Philadelphia, all the defendants:

 '* * * did knowingly and unlawfully conspire, combine, confederate and agree together and with each other, and with other persons to this Grand Jury unknown, to commit certain offenses against the United States of America, to wit: to violate Title 18 United States Code, Section 656.'

 Count I continues:

 'It was part of the plan and purpose of the said conspiracy that JOSEPH W. BARNES * * * embezzle and wilfully misapply the moneys, funds and credits * * * of such bank, and entrusted to its custody and care, and to the custody and care of the defendant JOSEPH W. BARNES, to wit: $ 285,800.

 'It was further part of the plan and purpose of said conspiracy that (the other four defendants) and each of them, receive, possess, conceal and dispose of said property and money belonging to and taken from, said bank, in violation of law.

 'It was further part of the plan and purpose of the said conspiracy that (the other four defendants) aid, abet and counsel the commission of said offenses.'

 Count I continues:

 '2. That at the times and places hereinafter named, in furtherance of the execution and for the purpose of carrying into effect the objects, designs and purposes of the said conspiracy (all the ...


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