The opinion of the court was delivered by: KNOX
DEFENDANT'S MOTION TO DISMISS COUNT ONE OF INDICTMENT
Defendant's motion to dismiss is premised on the government's failure to prosecute the defendant's co-conspirators. Defendant argues that under the peculiar language of Section 241, one conspirator cannot alone be prosecuted and punished. Defense counsel cites the statute itself as the basis for his argument:
"If two or more persons conspire . . .
They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life." [Emphasis added]. 18 U.S.C. 241.
The defense argues that according to the statute "they" must be punished, and that since the defendant is the only person indicted, this requirement cannot be met and Count I of the indictment must be dismissed. We disagree.
The court will assume for present purposes that the defendant's alleged co-conspirators cannot or will not be prosecuted, either because they have been given immunity or for other reasons.
The defendant acknowledges the general rule in conspiracy cases that the absence of one or more co-conspirators does not prevent prosecution of the others. Co-conspirators are commonly absent because their identity is unknown or because immunity, or even a Presidential pardon, has been given. An individual can be convicted and punished for conspiracy even though his fellow conspirators may be immune from prosecution as representatives of a foreign government.
Of course, the evidence must show that there were at least two conspirators.
Where the evidence of other conspirators is insubstantial and one charged conspirator is acquitted, the conspiracy conviction of the other must fail also.
When there are two alleged conspirators, both on trial, it is proper to tell the jury that it is not proper to convict one and to acquit the other.
The conviction of some alleged conspirators, however, does not fall merely because others named are acquitted, even though the conviction of the others is logically required for the finding of guilty of those held.
Despite the authorities cited, however, defendant contends that these general principles do not control the specific question raised here under the apparently unique wording of Section 241, which as we have noted provides that " they shall be" punished.
(1) "If two or more persons [conspire] . . . each [of such persons or of the parties] shall ...