NICHOLSON v. UNITED STATES, 79 F.2d 387

BOOTH, Circuit Judge. This is an appeal from a judgment entered after a plea of guilty to an indictment charging a conspiracy by defendant Nicholson (appellant here) with others, to injure, threaten, and intimidate Cortez T. Harrison, a citizen of the United States, in the free exercise and enjoyment of rights and privileges secured to him, by the Constitution and laws of the United States; and to injure, threaten, and intimidate him because he had exercised such rights. The charging part of the indictment is set out in the margin. The statute under which the indictment was drawn reads as follows: “Section 51. (Criminal Code,

section 19.) Conspiracy to injure persons in exercise of civil rights.

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States. (R.

S. § 5508; Mar. 4, 1909, c. 321, § 19, 35 Stat. 1092.)” The defendants, other than Nicholson, pleaded not guilty and were tried. Two of them were convicted. The present appeal is by Nicholson only. There are fifteen assignments of error. The general ground of attack is that the indictment does not state facts sufficient to make a case within the jurisdiction of the federal court. This general ground is particularized in the assignments of error.

Before taking up the particular contentions, it may be well to state one or two of the established rules relative to the construction of indictments such as the one in the present case. An indictment is construed more liberally after judgment than before. Hagner v. United States, 285 U. S. 427, 433, 52 S. Ct. 417, 76 L. Ed. 861; Dunbar v. United States, 156 U. S. 185, 191, 15 S. Ct. 325, 39 L. Ed. 390; United States v. Goldsmith (C. C. A.) 68 F.(2d) 5; Patterson v. United States (C. C. A.) 62 F. (2d) 968; Coates v. United States (C. C. A.) 59 F.(2d) 173; Musey v. United States (C. C. A.) 37 F.(2d) 673; Goode v.

United States, 12 F.(2d) 742 (C. C. A. 8); Irvin v. United States (C. C. A.) 298 F. 297. And this applies when judgment is entered on plea of guilty as well as on verdict. See Pellegrino v. Aderhold (C. C. A.) 55 F.(2d) 1074; Malinow v. United States (C. C. A.) 42 F.(2d) 374. In conspiracy cases, the gist of the crime is the agreement. The offense to be committed need not be alleged with such particularity as the agreement. Wong Tai v. United States, 273 U. S. 77, 81, 47 S. Ct. 300, 71 L. Ed. 545; Thornton v. United States, 271 U. S. 414, 423, 46 S. Ct. 585, 70 L. Ed. 1013; Williamson v. United States, 207 U.

S. 425, 447, 28 S. Ct. 163, 52 L. Ed. 278; Enrique Rivera v. United States (C. C. A.) 57 F.(2d) 816; Hill v. United States (C. C. A.) 42 F.(2d) 812; Carnahan v. United States, 35 F.(2d) 96, 100, 67 A. L. R. 1035 (C. C. A. 8) ; Williams v. United States (C. C. A.) 3 F.(2d) 933; Anderson v. United States, 260 F. 557, 558 (C. C. A. 8). But the defendant who pleads guilty to an indictment still has left to him the objection that the indictment docs not allege the essential ingredients of the crime with which he is charged. Oesting v. United States (C. C. A.) 234 F. 304.

No question is raised by appellant in the case at bar relative to the sufficiency of the indictment in so far as the allegations touching the conspiracy are concerned. But contentions are made that the allegations of the indictment are insufficient touching the offense which was the object of the conspiracy.

Grounds of attack, such as failure to give the names of the investigators, failure to allege that the investigators were officers of the United States and had authority to receive information, and the contention that there were no such officials as investigators of the Department of Justice, are covered by the rules above stated, considered in connection with the Act of May 27, 1930 (46 Slat. 427 [19 USCA § 523; 27 USCA §§ 42, 101 and note 102-108; 38 USCA §§ 38b-38d]), which created a Bureau of Prohibition in the Department of Justice and imposed certain duties in connection therewith upon the Attorney General.

See, also, Hoffman v. United States (C. C. A.) 68 F.(2d) 101, where the name of the federal agent was not given. The same rules dispose of the grounds of attack on the indictment that there was failure to plead impending violation involving untaxpaid distilled spirits, and failure to plead that said distilled spirits had been removed from a distillery and brought to premises which were not a distillery. See, also, McDonald v. United States, 9 F.(2d) 506 (C. C. A. 8); United States v. Pleva (C. C. A.) 66 F.(2d) 529; Roberts v. United States, 283 F. 960 (C. C. A. 8).

The ground of attack that the indictment was too vague in stating the object of the conspiracy is disposed of by such cases as Montoya v. United States, 262 F. 759 (C. C. A. 8); Hood v. United States, 23 F.(2d) 472 (C. C. A. 8); Smith v. United States, 157 F. 721 (C. C. A. 8); Oesting v. United States, supra. The ground of attack that the right and privilege claimed by the informer were not secured to him by the laws and Constitution of the United States has been settled adversely to appellant’s contention. Motes v. United States, 178 U. S. 458, 20 S. Ct. 993, 44 L. Ed. 1150; In re Quarles, 158 U. S. 532, 15 S.

Ct. 959, 39 L. Ed. 1080; see, also, Hawkins v. United States (C. C. A.) 293 F. 586. In its opinion in the Quarles Case, the Supreme Court said (158 U. S. 532, page 535, 15 S. Ct. 959, 960, 39 L.

Ed. 1080): “It is the duty and the right, not only of every peace officer of the United States, hut of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States. ijs % “The right of a citizen informing of a violation of law, like the right of a prisoner in custody upon a charge of such violation, to be protected against lawless violence, does not depend upon any of the amendments to the constitution, but arises out of the creation and establishment by the constitution itself of a national government, paramount and supreme within its sphere of action. * * * “The right of the private citizen who assists in putting in motion the course of justice, and the right of the officers concerned in the administration of justice, stand upon the same ground. * * * “The necessary conclusion is that it is the right of every private citizen of the United States to inform a marshal of the United States or his deputy of a violation of the internal revenue laws of the United States; that this right is secured to the citizen by the constitution of the United States; and that a conspiracy to injure, oppress, threaten, or intimidate him in the free exercise or enjoyment of this right, or because of his having exercised it, is punishable under

section 5508 of the Revised Statutes [18 USCA § 51].” We think the indictment was sufficient, and that" the judgment should be affirmed. It is so ordered. “That Willie Nicholson, Jamos Lee, Lillie Heed and Arnett Bowers, whose true names other than as herein set forth, arc to the Grand Jurors unknown and for that reason cannot be inserted herein, all charged, indicted and named as defendants herein, and who are hereinafter referred to as defendants, and divers other persons whose names, are to the Grand Jurors unknown, did on or about tho 1st day of November, A.

D. 1833, and continuously thereafter until the return and filing of this indictment, within the Eastern Division of the Eastern Judicial District of iYEssouri, and within the jurisdiction of the Court aforesaid, Unlawfully, Wilfully, Knowingly and Feloniously conspire, combine, agree and confederate together, among themselves, and with each other, to injure, oppress, threaten and intimidate a certain citizen of the United States, to-wit: Oortez T.

Harrison, alias Tracy Harrison, in the free exercise and enjoyment of rights, and privileges secured to him by the constitution and laws of the United States, and that the said defendants did conspire together as aforesaid to injure, oppress, threaten and intimidate the said Cortez T. Harrison, alias Tracy Harrison because he, the said Cortez T.

Harrison, alias Tracy Harrison, had s,o exercised as. a citizen of the United States a right and privilege secured to him by the Constitution and laws of the United States, to-wit: the right and privilege to report to and inform certain investigators of the Department of Justice of the United States, and which said investigators were then and there duly and legally acting in the discharge of their official duties as such officers, that distilled spirits, to-wit: alcohol would be unlawfully removed to and brought to the premises numbered 3055 Dickson Street, St.

Louis, Missouri, on November 23, 1933, in violation of the laws of the United States, and that thereafter and on the said 23rd day of November, A. D. 1933 the s.aid Willie Nicholson and James Lee, named as defendants in this indictment, did remove and bring distilled spirits to the said premises numbered 3065 Dickson Street, St.

Louis, Missouri; and the Grand Jurors afo'resaid, upon their oaths aforesaid, do further charge and present that in pursuanee to and in furtherance of and in the execution of and for the purpose of carrying out and to effect the object and purpose of said conspiracy, combination, confederation and agreement aforesaid, the said Willie Nicholson did on or about the 2Sth day of November, A.

D. 1933, intimidate and threaten to physically injure the said Harrison, and that thereafter and in furtherance of the said conspiracy and to effect the object and purpose of the said conspiracy the said defendants Willie Nicholson, James Lee, Lillie Reed and Arnett Bowers, and divers, other persons whose names are to the Grand Jurors unknown, did on or about the 29th day of November, A. D. 1933 and at or near premises numbered 3055 Dickson Street, in the City of St. Louis, in the State of Missouri, unlawfully and feloniously assault, beat, injure and threaten to kill the said Oortez T.

Harrison, alias Tracy Harrison, and did then and there aid and abet in assaulting, beating, injuring and threatening to kill the said Oortez T. Harrison, alias: Tracy Harrison; “And so the Grand Jurors aforesaid, upon their oaths aforesaid, do say that said defendants, throughout sjaid period of time, at the places and in the manner aforesaid, unlawfully, wilfully, knowingly and feloniously did conspire, confederate, and agree together to injure, oppress, threaten and intimidate the said Oortez T.

Harrison, alias Tracy Harrison, because he, the said Harrison, had s,o exercised a right and privilege secured to him by the Constitution and laws of the United States.”