Opinion
No. 43, Docket 20709.
November 5, 1947.
Appeal from the District Court of the United States for the Southern District of New York.
Cesur Negro and Rene Bruchon were convicted of a conspiracy to violate the Narcotic Import Act, and the latter appeals.
Reversed and remanded.
An indictment against defendant Bruchon charged him and defendant Negro and "divers persons to the Grand Jury unknown" with a conspiracy to violate the narcotics import Act, 21 U.S.C.A. §§ 173 and 174. Another indictment charged Bruchon with the substantive crime of violating those provisions. A third indictment charged Negro with a similar substantive violation. Bruchon pleaded not guilty to both indictments naming him; Negro pleaded guilty to the substantive charge, and not guilty to the conspiracy charge. The conspiracy charge and the substantive charge against Bruchon were consolidated for trial which was had before a judge and jury.
The conspiracy indictment reads as follows: "That heretofore, to wit, beginning on or about the 1st day of March, 1947, and continuing to the date of the filing of this indictment at the Southern District of New York and within the jurisdiction of this Court, at Marseilles, France, and various other places, Cesur Negro and Rene Bruchon, the defendants herein, and divers other persons to the Grand Jurors unknown, unlawfully, wilfully and knowingly did combine, conspire, confederate and agree together and with each other to commit an offense against the United States, to wit, to violate the United States Code, Title 21, Sections 173 and 174.
"It was a part of the said conspiracy that the said defendants herein unlawfully, wilfully and knowingly would receive, possess, conceal and facilitate the transportation and concealment of a quantity of narcotic drugs, the exact amount and nature thereof being to the Grand Jurors unknown, after the said narcotic drugs had been imported and brought into the United States contrary to law in that the importation and bringing of any narcotic drug into the United States, except such amounts of crude opium and cocoa leaves as the Commissioner of Narcotics finds to be necessary to provide for medical and legitimate uses only is prohibited by Title 21, Sections 173 and 174 of the United States Code.
"Overt Act"1. In pursuance of the said conspiracy and to effect the objects thereof, at the Southern District of New York and within the jurisdiction of this Court, on or about the 16th day of March, 1947, in the Borough of Manhattan, City, County and State of New York,
"Cesur Negro and Rene Bruchon, the defendants herein, had a meeting in the quarters of the defendant Cesur Negro aboard the Steamship `St. Tropos' at Pier 26, East River
"Against the peace of the United States and their dignity and contrary to the form of the statute of the United States in such case made and provided (Section 88, Title 18, United States Code)."
At the trial, evidence to the following effect was introduced: On Sunday, March 16, 1947, Negro, a seaman in the crew of the S.S. St. Tropez, was stopped and searched, as he came down the gangplank of that ship, by Port Patrol Officer Murray of the United States Customs who was on duty at the time at Pier 28 New York City, where the St. Tropez was berthed. Murray found four packages of heroin tied about Negro's waist. Negro was thereupon placed under arrest and questioned later that day by Customs Agent Schug. At first he told Schug that he had received the heroin from a Chinese in Marseilles, France. When Schug expressed doubt, he retracted this story and implicated Bruchon as his supplier. Bruchon was an assistant steward on the ship and he had exclusive charge of the linen lockers, which are two adjacent rooms completely separated from each other and secured by two padlocks each requiring a different key. One room was for clean linen, and one for soiled linen. These rooms were searched by Customs men on Friday, March 14, 1947, shortly after the ship's arrival in New York, and they were searched again on Sunday, March 16, 1947 after Negro's revelation implicating Bruchon. Bruchon's quarters were also searched. No contraband was found in any of the rooms. After the Sunday search, a Customs guard was posted at the doors of the linen-rooms to prevent access to them by anyone until they could be thoroughly searched on Monday. The search of the soiled linen-room on Monday disclosed fifty packages of heroin in one of the bags of soiled linen.
Chief Steward Gallois testified that there was only one key to the soiled linen-room and that was in the continuous possession of Bruchon. Bruchon testified that the first mate had one also. The first mate was not called as a witness. The day before the ship arrived in port, Gallois borrowed the key from Bruchon, and in the presence of the ship's baker searched the linen-rooms as part of his customary routine search of the ship before her arrival. He returned the key to Bruchon immediately after the search, having found nothing of interest to him. For the Friday and Sunday searches the key was provided by Bruchon. On Monday, Bruchon having already been taken into custody, the Chief Steward Gallois apparently provided the key, although there is conflicting testimony on this point.
At the trial Bruchon testified, but Negro did not. However, two stenographic records of statements, made to Customs Agents by Negro after his arrest, were placed in evidence with the consent of defense counsel, but the jury was instructed to consider these confessions only in "determining the guilt or innocence of Negro and not at all in determining the case against Bruchon." The gist of Negro's two confessions was that Bruchon came to his quarters on the ship on Sunday, March 16, 1947 and gave him the heroin which he had failed to smuggle in later the same day. He also related that Bruchon had primed him for this job on the previous voyage and had promised him a sum of money if he delivered the heroin to his shoreside henchmen. Bruchon, according to Negro's confession, also provided and applied the elaborate bandages and wrappings which held the contraband snug to his back and stomach, but Negro did not know where Bruchon was secreting the narcotics on the ship. Negro, in his confession, also stated that he saw Bruchon coming from the vicinity of Hold 4 on the night of Friday, March 14, 1947, carrying a large package. A seaman in charge of the keys to the various holds testified that Bruchon asked him to open the hatchway to No. 4 hold for him, which he did and went ashore, not observing whether or not Bruchon entered it. Bruchon admits making this request but passed it off as a joke.
When Murray testified concerning his discovery of the heroin in Negro's possession, Bruchon's counsel asked the judge to instruct the jury that this testimony "has nothing to do with the defendant, Bruchon, and may not be used against him or considered against him in connection with the conspiracy charge." The judge refused this request.
At the close of the government's case, Bruchon's counsel moved as follows to dismiss the conspiracy charge against Bruchon:
"With respect to the conspiracy indictment first, the only overt act charged is that of a meeting between Negro and Bruchon in Negro's quarters on board the steamship Saint Tropez on the 16th of March, which was Sunday. That evidence is adduced from Negro solely after his arrest, while he was in custody. In view of the fact that the Government has to prove this overt act in order to prove anything else, and in the absence of the proof of this act, the conspiracy — and in view of the fact that that testimony must not and cannot be admitted against Bruchon, there is nothing left in the indictment with respect to Bruchon." The judge denied this motion. At the close of the entire case, this motion was renewed and again denied.
The judge, in his instructions to the jury, said in part: "The two defendants are on trial here also on a charge of conspiracy. A conspiracy is an agreement to do an illegal thing. The illegal thing in this case is to possess and to facilitate the importation or the transfer of this heroin which was put in evidence, if you believe the testimony. In order to make that more than an act of the will and make it a crime there must be an overt act, occurring openly, such an act that the senses have perceived; and the one that is pleaded here is a meeting in Negro's cabin. As far as Negro goes in the conspiracy, you may consider that statement after he was arrested. As I told you, that statement cannot be considered by you in determining the guilt or innocence of the defendant Bruchon; but that means that that also is a circumstantial evidence case from which you must make deductions from such testimony as you accept from the other witnesses, about who held the keys to the hold, and the possession of the keys to the closet in which it was found, and all the other evidence that you accept. In determining whether you accept it or not you may use any factor that appeals to you in determining the veracity or the acceptability of the testimony of any witness. You are the sole judges of the credibility of the witnesses, whether they are telling the truth or not. * * * A conspiracy involves two persons. If you find Bruchon not guilty of the conspiracy you must find Negro not guilty of the conspiracy. It may appear a bit complicated to a jury to exclude testimony that is good against one from consideration as to the other. But I do not know that you will find it an insurmountable difficulty when you actually sit down and think about the case." No exceptions were taken.
The jury retired. Subsequently, before reaching a verdict, the jury returned to the court-room. The judge then gave them supplemental instructions which, in part, were as follows: "Now I do not know whether my charge in some respects was clear. I was thinking after I left the court that you were told by one of the attorneys in summing up, for instance, that that statement of Negro could not be used to establish the overt act against the other defendant. Of course, the law is intelligent, and that proof, the proof of that act, the overt act which is alleged to be a meeting of the two of them — all the Government has to do is to prove that act. It does not have to prove it as a fact against both of them. The act itself is the meeting of the two of them. If you believe the testimony as to what Negro said, if you believe that, therefore you would find that the two of them were together. That, of course, in itself is innocent, and the meaning of my charge is not that you have to find the meeting from some other evidence. The Government has no other evidence of the commission of that overt act. Of course, if you find that one man met another, it is perfectly ridiculous on its face to say that there is any possible objection to the establishment of that as the fact. All the Government has to do is to prove that one fact. That is, not taking the statement of Negro into consideration in determining whether or not the other man is guilty, because that is a perfectly innocent act. So all the Government has to do is to prove that as against either of them, no matter which one you consider; and if the proof tends to show the two men met, it is contrary to common sense to talk about it any other way. So I hope I did not confuse you in that." Bruchon's counsel was allowed an exception to these additional instructions.
The jury found Bruchon not guilty on the substantive indictment, but found him and Negro guilty on the conspiracy charge. Bruchon's counsel moved to set aside the verdict for the reasons urged in support of his motion at the end of the government's case. The Judge denied the motion and sentenced Bruchon to a term of two years imprisonment and a fine of $10,000. Bruchon alone appeals.
18 U.S.C.A. § 88 reads as follows: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both."
John F.X. McGohey, of New York City (William M. Regan, of New York City, of counsel), for plaintiff-appellee.
Henry K. Chapman, of New York City, and Irving Rader, of Brooklyn, N.Y., for defendant-appellant.
Before, AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.
1. Defendant assigns as error the fact that the judge told the jury, "A conspiracy involves two persons. If you find Bruchon not guilty of conspiracy you must find Negro not guilty." Defendant argues thus: (a) The indictment named as the conspirators the defendants, Bruchon, Negro, and "divers other persons to the Grand Jurors unknown." (b) The record contains evidence, says defendant, from which the jury might have concluded that Negro conspired with persons other than Bruchon. (c) It was therefore a mistake to advise the jury that, if Bruchon was guiltless of conspiracy, Negro must also be, since the alleged conspirators consisted of more than the two men, Bruchon and Negro. (d) This mistaken instruction substantially injured Bruchon because it "may well have decided the jury to bring in a guilty verdict against him, even though it believed that his guilt of the conspiracy was not proved beyond a reasonable doubt and that of Negro was."
The government answers that as, on the testimony, the only persons whom the jury could have found to be participants were Bruchon and Negro, the comment by the judge was not only fair but appropriate, and favorable to Bruchon, so that the jury could not have been misled. We are strongly inclined to agree. But if we assume, arguendo, that the jury may have been misled, as Bruchon now claims, he should have called the judge's attention to the error before the jury retired. He did not do so, for he took no exception to the judge's original instructions. The error, if any, was the sort which a defendant waives by such silence, not the egregious sort which may be assigned successfully for the first time after the verdict.
2. As the record contains no evidence of the only overt act alleged in the indictment (i.e., the meeting of Bruchon and Negro, on or about March 17, in Negro's quarters aboard the boat), the government wisely concedes that the judge erred in giving his supplemental instruction. For the judge could not properly tell the jury that, on the basis of Negro's confession, inadmissible with respect to Bruchon, they might rest a finding of the occurrence of that overt act.
The government, however, urges the harmlessness of that error. It points to the uncontradicted testimony by Customs Officer Murray of another, distinct, overt act not mentioned in the indictment (i.e., Negro's attempt to smuggle in a quantity of heroin) and argues that the verdict must be taken as showing that the jury found the occurrence of that act. The short answer is that, as the judge in his instructions referred solely to the overt act alleged in the pleadings, we would, if we held this error harmless, be ignoring flagrantly the "harmless error" doctrine as expressed in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, Bihn v. United States, 328 U.S. 633, 66 S.Ct. 1172, 90 L. Ed. 1485, and Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350. It follows that we must reverse and remand for a new trial.
3. Since the following question will again arise in connection with a new trial, it seems desirable to consider it: When Murray testified to the overt act not stated in the indictment (i.e., his discovery of heroin in Negro's possession), Bruchon's counsel objected to the reception of this evidence as against his client on the conspiracy charge. Had this act been specified in the indictment, a verdict of guilty, after proper instructions from the judge, would unquestionably have supported a judgment of conviction. The question is whether it would do so, although this overt act is not named in the indictment and although defendant objected to the use of the testimony concerning this act, as evidence against him.
The answer, we think, turns on whether, under 18 U.S.C.A. § 88, an overt act is an element of the crime of conspiracy. At one time, the Supreme Court seems plainly to have held that it was not, either before or since the enactment of that statute. Thus in United States v. Hirsch, 1879, 100 U.S. 33, 34, 25 L.Ed. 539, the Court said: "The gravamen of the offense here is the conspiracy. * * * Although by the statute something more than the common-law definition of a conspiracy is necessary to complete the offense, to wit, some act done to effect the object of the conspiracy, it remains true that the combination of minds in an unlawful purpose is the foundation of the offense." This case was cited with approval in Pettibone v. United States, 1893, 148 U.S. 197, 202, 13 S.Ct. 542, 545, 37 L.Ed. 419, where it was said: "The confederacy to commit the offense is the gist of the criminality under this section, although, to complete it, some act to effect the object of the conspiracy is needed." In United States v. Britton, 108 U.S. 199, 205, 2 S.Ct. 531, 534, 27 L.Ed. 698, the Court had said: "This offence does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. The provision of the statute, that there must be an act done to effect the object of the conspiracy, merely affords a locus poenitentiae. * * *"
In Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas. 1914 A, 614, the Court seemed to shift its position. It held that venue under the Constitution (Art. III, sec. 2, clause 3, and the Fourth Amendment) could be grounded on the fact that an overt act, innocent in and of itself, occurred within the district, although none of the defendants had there been present, and although the conspiring took place elsewhere. In so holding, the Court, referring to the statute, said at page 359 of 225 U.S., at page 799 of 32 S.Ct.: "The conspiracy * * * cannot alone constitute the offense. It needs the addition of the overt act. Such act is something more, therefore, than evidence of a conspiracy. It constitutes the execution or part execution of the conspiracy. * * *" However, in Joplin Mercantile Company v. United States, 236 U.S. 531, 536, 35 S.Ct. 291, 293, 59 L.Ed. 705, the Court held that the averments in the indictment of the overt acts could not relate back to the averments of conspiracy, because overt acts, "although essential to the completion of the crime, are still, in a sense, something apart from the mere conspiracy, being `an act to effect the object of the conspiracy.'" In Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23, the Court regarded the question as still unanswered, saying: "But it is unimportant, for present purposes, whether we regard the overt act as a part of the crime which the statute defines and makes punishable * * * or as something apart from it, either an indispensable mode of corroborating the existence of the conspiracy or a device for affording a locus poenitentiae. * * *"
Holmes, J., dissented, saying (at page 388 of 225 U.S., at page 810 of 32 S.Ct.): "The cases in this court have agreed that the statute has not made the overt act a part of the crime, which still remains the conspiracy alone. * * * The overt act is simply evidence that the conspiracy has passed beyond words and is on foot when the act is done. As a test of actuality it is made a condition to punishment, but it is no more a part of the crime than it was at common law, where it was customary to allege such an act * * *."
We believe that, at least for some purposes, the overt act is not part of the crime. See United States v. Cohen, 2 Cir., 145 F.2d 82, 94. Thus if, in the instant case, there had been no proof of any overt act other than that alleged, and if the defendant Bruchon had been acquitted, we think that, under the doctrine of double jeopardy, he could not subsequently have been convicted for a conspiracy on the same facts with the single exception that, in the second trial, a different overt act was alleged and proved. We think, also, that an overt act is not part of the crime in the sense that the act alleged must be proved, where another unalleged overt act is proved. We are aided in reaching this conclusion by the new Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, especially Rule 7(c). So that, even if Fredericks v. United States, 9 Cir., 292 F. 856, was correct when decided, we think it should not now be followed.
See also Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975; Troutman v. United States, 10 Cir., 100 F.2d 628, 632.
We find no substantial support for our conclusion in United States v. Downing, 2 Cir., 51 F.2d 1030, 1031, for there, as the record shows, there was evidence of one of the two alleged overt acts. Nor does our conclusion derive from the accepted doctrine that, in order to prove intent, evidence of unalleged overt acts is admissible where there is proof of the alleged act.
This Rule reads: "(c) Nature and Contents. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice."
See also United States v. Ault, D.C., 263 F. 800, 803.
Cf. however, Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975, decided by the same circuit court.
Consequently, we think the substitution of proof of an unalleged for an alleged overt act does not constitute a fatal variance. At most, such a variance justifies a request for continuance because of surprise. In the instant case, defendant could not reasonably have claimed surprise, since Murray's testimony was virtually evidence of the conspiracy's consummation.
Reversed and remanded.