United States v. Catrow

7 F.2d 510, 1922 U.S. Dist. LEXIS 772

• Court: District Court, S.D. New York
• Decided: August 29, 1922
• Status: Published

Opinion

AUGUSTUS N. HAND,

District Judge. The foregoing defendants demur to an indictment for conspiracy .to defraud the United States. Section 37, Criminal Code (Comp. St. § 10201). The indictment charges that Steckler, who had a basic permit as a druggist, should apply to Catrow, who was an assistant federal prohibition director, through Silver, McGowan, and Fallon, for the withdrawal of intoxicating liquor for nonbeverage purposes; that the applications would be approved and withdrawal permits issued by Catrow to Steckler in amounts exceeding the quantity to which Steckler was entitled under the conditions and limitations of the basic permit and the regulations of the department; that Catrow would approve the applications without proof that the excess quantity was required for the business of Steckler, although an inspection was required of the business of the applicant, and although he and the other defendants knew Steckler was not legally entitled to withdraw it; that Steckler would make four applications for permits to purchase liquor, and it was part of the conspiracy that the vendor would present the applications to Catrow for verification at his office, instead of sending them by registered mail, as required by the regulations; that Catrow would immediately verify them, and would not report the granting of the permits to the federal Commissioner of Prohibition, and retain a copy of the notification in his office; that it was a part of the conspiracy that Steckler would thereby procure intoxicating liquor and that same would be sold for beverage purposes.

Section 37 embraces:

(1) Conspiracy to commit an offense against the United States.

(2) Conspiracy to defraud the United States.

A conspiracy to commit an offense against the United States is pleaded when it is shown that the plan was to violate the rules of the department made to guard against the liquor traffic. The authority to make such regulations as are pleaded is given by section 13 of tide 3 of the Volstead Act (Comp. St. Ann. Supp. 1923, § 10138%!), and section 15 (section 10138%n) prescribes the penalty for the violation.

(3) There was a conspiracy to defraud when the purpose was to have permits issued contrary to the regulations, for the purpose of withdrawing intoxicating liquor for beverage purposes.

It is alleged that the defendants knew that the purchases were to exceed the amount of whisky to whieh Steckler would be entitled under his basic permit and under the regulations, and demurrants criticize the indictment for not setting forth just what he was entitled to purchase. While the amount of overpurehase would have to be shown in proof, and possibly in the pleading of a substantive offense, I eannot see why it is necessary to allege this in an indictment for conspiracy. Suppose the parties got together and formally agreed “to secure the delivery of more than the regulations allowed,” and nothing more was 'said, it ought to ho sufficient proof of an illegal conspiracy, if followed by an overt act. If it would be sufficient proof, the pleading should be adequate.

The demurrers are overruled.