these, the Pennsylvania defendants would have to know that each of the non-residents was, in fact, a non-resident and did, in fact, travel interstate. Thus, the knowledge that would support the conspiracy conviction would not necessarily support a conviction for the substantive crimes alleged in Counts 3 through 26. Only if the particular travel by the named traveler could be reasonably foreseen by the non-traveling defendants could the jury convict on the count alleging that travel.
In United States v. Andolschek, 142 F.2d 503 (C.A. 2, 1944), Judge Learned Hand, in speaking of the scope of the conspiracy for which one can be convicted, said at page 507:
'* * * That is of course an error: the scope of the agreement actually made always measures the conspiracy, and the fact that B. engages in a conspiracy with others is as irrelevant as that he engages in any other crime. It is true that a party to a conspiracy need not know the identity, or even the number, of his confederates; when he embarks upon a criminal venture of indefinite outline, he takes his chances as to its content and membership, so be it that they fall within the common purposes as he understands them. Nevertheless, he must be aware of those purposes, must accept them and their implications, if he is to be charged with what others may do in execution of them. * * *'
See also United States v. Crimmins, 123 F.2d 271, 273 (C.A. 2, 1941). Cf. United States v. Anderson, 101 F.2d 325, 332-333 (C.A. 7, 1939).
The jury was not instructed that knowledge or foreseeability of the particular act of interstate travel was a necessary element of conviction for each substantive count. Hence, the jury might have convicted those non-traveling defendants named in Counts 3 through 26 without finding the existence of the omitted element. Whether the jury's finding of guilt of the Pennsylvania defendants was based on the aiding and abetting portion of these counts or the Pinkerton charge, we will never know. Because it may have relied upon the Pinkerton charge, the conviction under the substantive counts of the non-traveling defendants, Barrow, Loscalzo, Bonanno and Pillo (those counts where he was not charged with traveling) must be vacated if this motion is timely. See Grunewald v. United States, 353 U.S. 391, 415, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957).
Defendants took no exception to this part of the charge nor did they suggest any modification or amplification. However, this omission in the charge was plain error and can be recognized by this court and the Court of Appeals despite the failure of defense counsel to object or except. The foreseeability of the substantive crime is a necessary prerequisite to holding all the conspirators guilty of the substantive crime. United States v. Andolschek, supra.
In Barry v. United States, 109 U.S. App.D.C., 301, 287 F.2d 340 (C.A.D.C., 1961, the trial judge, in defining the essential elements of the crime, had failed to charge that the government must establish that the defendant had knowledge that the check was forged. The error was not even raised by counsel on appeal. The court said, at page 341 of 287 F.2d:
'* * * But the responsibility of instructing the jury upon the essential elements of a crime rests upon the court. Failure to meet this special responsibility of the court itself need not be overlooked by an appellate court because overlooked by counsel. * * *'
See also United States v. Max, 156 F.2d 13 (C.A. 3, 1946).
We can find no case which holds that the failure to charge on essential elements is not plain error. United States v. Malfi, 264 F.2d 147 (C.A. 3, 1959), is a different case. There the trial court charged the jury in the words of the statute. There is no indication that any of the essential elements of the crime were there omitted from the charge.
The motions of defendants Barrow, Bonanno and Loscalzo for a new trial on Counts 3-11 and 15-26 inclusive, will be granted.
The motion of defendant Pillo for a new trial on Counts 5-11 and 15-26 inclusive, will be granted.
The remaining motions for a new trial will be denied.
The defendants' motions for judgment of acquittal will be denied.
Counsel for the government will prepare an appropriate order consonant with the opinion.