The opinion of the court was delivered by: KNOX
This case involving the possession and sale of counterfeit United States gold coins presents two questions. First, does the acquittal of defendant's only named co-conspirator necessitate that defendant be acquitted also? Secondly, does the newly discovered evidence, consisting of various airline, motel and gasoline receipts, justify a new trial in which defendant may show an alibi defense based on those documents? Under the facts of this case, we answer both questions in the negative.
Defendant Walter Kruse was convicted by a jury of Counts I and VI of the indictment. Count I alleges a conspiracy with Patricia Waldman and "others to the grand jury unknown" to possess and sell certain counterfeit United States gold coins in various specified transactions. Count VI, a substantive count, charges a sale to Melvin Schoener on March 9, 1976. Patricia Waldman was charged only under Count I and was acquitted. Defendant Kruse now moves for Judgment of Acquittal, in Arrest of Judgment, and for a New Trial.
Count I of the indictment alleges that defendants Walter Kruse and Patricia Waldman conspired together, along with persons unknown to possess and sell with intent to defraud certain counterfeit coins. The overt acts state specific sales to Melvin Schoener on five different occasions and a sale to Edward DeHaas and Kathleen Hays on another occasion. The indictment also lists as overt acts certain actions taken by defendants to complete the latter transaction. As previously stated, the jury convicted Walter Kruse on this count, but acquitted Patricia Waldman.
The record does not disclose any other conspirators specifically taking part in the overt acts stated in the indictment. Nor do the overt acts listed disclose any specific actions taken by other unknown co-conspirators in furtherance of the conspiracy.
In support of the conspiracy charge, however, the government produced Exhibit No. 15.This Exhibit is a yellow sheet of paper seized from Walter Kruse's wallet at the time of his arrest. The writing on Exhibit 15 is in two columns. The left-hand side is in Italian, and the right-hand side appears to be an English translation. Rather than being in complete letter form, the exhibit consists of a series of phrases and sentences, and appears to be a much-abridged Italian-English dictionary.
By definition two or more persons must combine together to commit the crime of conspiracy. It is well established, however, that the conviction of other named members of a conspiracy is not needed to sustain the conviction of one member. One person alone can be convicted of conspiring with persons known or unknown. Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344 (1951); United States v. Fox, 130 F.2d 56 (3d Cir. 1942); United States v. Crum, 404 F. Supp. 1161 (W.D.Pa.1975). Of course, the evidence in such cases must show that there were at least two conspirators. United States v. Gardner, 475 F.2d 1273 (9th Cir. 1974) cert. den. 414 U.S. 835, 94 S. Ct. 178, 38 L. Ed. 2d 70; United States v. Whitfield, 378 F. Supp. 184 (E.D.Pa.1974) aff'd 3 Cir., 515 F.2d 507. Where the evidence of additional conspirators is insubstantial and one of two charged conspirators is acquitted, the conspiracy conviction of the other must fail also. Gardner, supra. Likewise, where one of three conspirators is acquitted by the jury and another by the court in post-trial motions, the third must be acquitted too, where there is no indication in the record of any unindicted co-conspirators. Whitfield, supra. As stated by the United States Supreme Court, "It is impossible in the nature of things for a man to conspire with himself" and conspiracy "imports a corrupt agreement between not less than two with guilty knowledge on the part of each". Morrison v. California, 291 U.S. 82, 54 S. Ct. 281, 78 L. Ed. 664 (1934).
Conversely, the conviction of some alleged conspirators does not fall merely because others named are acquitted, even though the conviction of those acquitted is logically required for the finding of guilty of those held. United States v. Robinson, 503 F.2d 208 (7th Cir. 1974) cert. den. 420 U.S. 949, 95 S. Ct. 1333, 43 L. Ed. 2d 427; U.S. v. Fox, supra; United States v. Austin-Bagley Corp., 31 F.2d 229 (2d Cir. 1929).
The case at bar falls somewhere between these rules. The jury acquitted Patricia Waldman of Count I of the indictment, but convicted only Walter Kruse of conspiracy. With characteristic form, the indictment charges conspiracy not only between the two named defendants, but also as between them and "others to the grand jury unknown". The question, then, is whether there is sufficient evidence of other co-conspirators to allow the conviction of Walter Kruse to stand.
The Third Circuit spoke on this same legal question in Pomerantz v. United States, 51 F.2d 911 (3d Cir. 1931) as follows:
"The claim that the charge of conspiracy collapsed with the acquittal of the other defendants tried with the appellant is unsound, for the reason that the indictment alleges that he and his co-defendants conspired ' with divers other persons unknown ' to commit the crime charged. The testimony supports the charge in the indictment, and is sufficient to prove that unknown persons assisted the appellant in carrying out the conspiracy. ...