The opinion of the court was delivered by: TAMM
The defendants in this case have filed a motion to dismiss the indictment and for other relief. The main contentions advanced by the defendants are:
1. That Count One of the indictment is duplicitous,
2. That there is a misjoinder of offenses and defendants,
3. That the counts of the indictment are vague and indefinite, and
4. That the Grand Jury acted illegally in indicting Bernard S. Bachman since it had required him to appear and give testimony.
Each of these points will be treated in order and separately.
Point 1. Count One of the Indictment is Duplicitous.
Briefly, Count One of the indictment charges the named defendants and others who are not defendants in this case with having 'unlawfully, wilfully and knowingly' conspired to violate the National Firearms Act (T. 26 U.S.C. § 5801 et seq.) and certain rules and regulations thereunder, and the Federal Firearms Act (T. 15 U.S.C.A. § 901 et seq.) and certain rules and regulations thereunder, and as a conspiracy is alleged, this count is based on violation of T. 18 U.S.C. § 371. 'Conspiracy to commit offense or to defraud United States.' Count One then states in eight paragraphs the different parts of the conspiracy which parts, the Government contends, make up the whole of one offense -- the conspiracy.
Eleven overt acts involving the defendants and others are also recited.
There is no doubt, or dispute, that each count of an indictment must contain no more than one offense, and if there are two or more separate and distinct offenses charged in one count, the indictment becomes subject to a motion to dismiss.
The defendants contend that Count One of the indictment which charges a conspiracy does not allege only one such conspiracy but rather a multiplicity of conspiracies and that thus the indictment should be dismissed. The Government contends that Count One charges one offense only, namely, the conspiracy.
As there is no dispute as to the applicable law, the solution must rest with an application of that law to the alleged facts in Count One. At the outset, it must be remembered that a conspiracy to commit a crime is a crime itself (T. 18 U.S.C. § 371) and is a separate offense from the crime that is the object of the conspiracy. Marx v. U.S., 8 Cir., 1936, 86 F.2d 245. Also, the fact that several crimes are alleged in a single count which charges a conspiracy does not make the count duplicitous Braverman v. U.S., 317 U.S. 49, 54, 63 S. Ct. 99, 87 L. Ed. 23, for 'the conspiracy is the crime, and that is one, however diverse its objects.' Frohwerk v. U.S., 249 U.S. 204, 210, 39 S. Ct. 249, 252, 63 L. Ed. 561.
In the case of Braverman v. U.S., supra, the defendants were indicted on seven counts, each count charging a conspiracy to violate a separate and distinct Internal Revenue law of the United States. The defendants contended that the proof did not establish more than one conspiracy and that the Government should, accordingly, elect one of the seven counts upon which to proceed. Counsel for the Government, however, contended that 'the seven counts of the indictment charged as distinct offenses the several illegal objects of one continuing conspiracy, that if the jury found such a conspiracy it might find the defendants guilty of as many offenses as it had illegal objects and that for each such offense the two-year statutory penalty could be imposed.' 317 U.S. at page 51, 63 S. Ct. at page 100. The case was submitted to the jury upon the theory advanced by the Government. The jury returned a verdict, 'guilty as charged,' and the Court sentenced each defendant to eight years imprisonment. The case was affirmed by the Court of Appeals for the Sixth Circuit. The Supreme Court of the United States, in reversing the judgment of conviction for proper resentencing because of proof of but one conspiracy, stated: 'Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. The allegation in a single count to commit several crimes in not duplicitous for 'The conspiracy is the crime, and that is one, however diverse its objects'.'
The defendants have placed much reliance upon the case of Kotteakos v. U.S., 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557, to support their position. The ...