United States v. Reichert

32 F. 142, 12 Sawy. 643, 1887 U.S. App. LEXIS 2729

Opinions

On the twenty-ninth of August the court gave its decision on the demurrer, per

Mr. Justice Field,

orally, as follows:

We have had under consideration the demurrers to the several indictments against Reichert et al., for a conspiracy to defraud the United States, or to commit some other offense against the United States, and we have come to the conclusion that all the indictments are fatally defective. The first and second counts in the indictment in the above case allege a conspiracy to commit an offense against the United States, but do not allege the performance of any act in furtherance of the conspiracy, or, in the language of the statute, “any act to effect the object of the conspiracy;” nor do they allege that the surveyor general of the United States for California, to whom the alleged fraudulent and fictitious claims were to be presented, was authorized to allow arid approve them. The third count in the indictment alleges a conspiracy to defraud the United, States, but, like the other counts, fails to aver the performance of any act in. furtherance of the conspiracy, or that the United States surveyor general for California was authorized to allow and approve the claim which was to be presented to him. The fourth count alleges the performance of acts in furtherance of the “said unlawful and corrupt conspiracy,” but does not set forth what the said conspiracy was. No such direct reference to any one of the preceding counts is made as to bring the conspiracy averred in one of them within the meaning of those terms. State v. Longley, 10 Ind. 484.

The circuit judge is of opinion that the count is defective only in the last particular stated, namely, that it does not aver authority in the surveyor general to allow and approve the claim which was to be presented to him; and that where the charge is of a conspiracy to defraud the United States, by obtaining or aiding to obtain the payment or allowance of a false, fictitious, and fraudulent claim, it is not necessary to aver the performance of any act in furtherance of the conspiracy. In this respect I am unable to agree with him. I am of opinion that section 5440 Rev. St., amended by the act of May 17, 1879, (21 St. 4,) qualifies the provisions of section 5438; and that a conspiracy to defraud the United States, or to commit any other offense against the United States, is not, of itself, an indictable offense, unless the conspiracy be followed by some act in furtherance of it, — that is, to effect its object. Section 5440 applies to conspiracies to defraud the United States in any manner or for any purpose, and of course embraces the particular conspiracy mentioned in section 5438,—to defraud the government of the United States by “obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim.” As, under section 5440, the conspiracy to defraud must be followed by some act to effect that object, to constitute a public offense, it would seem that, to the extent in which the section differs in that particular from the offense of defrauding the United States mentioned in the preceding section, (5438,) it must be held to qualify and amend that section. Were this not so, we should have a general provision that in case of a conspiracy to defraud the United States in any manner, or for any purpose, it would be necessary to show the doing of some act to effect its object by one or more of the conspirators, to constitute the offense, with a previous provision that, in case of a conspiracy to defraud the United States in a specified way, there would be no necessity of showing any act to carry the conspiracy into effect. Consistency is given to the statute by treating the latter section as qualifying the preceding one. But I agree with the circuit judge that the absence of any averment of authority in the surveyor general to allow and approve the claim which was to be presented to him is, of itself, a fatal defect.

The counts in all the indictments 1'or conspiracies similar to those alleged in the indictment against Reichert are defective in one or more of the grounds stated. The demurrers to all the indictments are therefore sustained.

The Court. As the defects in which the indictments are sustained may be avoided upon new indictments, does the district attorney desire the parties to be held for further proceedings?

The District Attorney. I ask for an order that the defendants be held to answer to the next grand jury of the circuit.

The Court. An order will be entered that they be thus held.

Subsequently, on the fifth of September, the United States district attorney moved fora rehearing in three of the cases, on the alleged ground that the fourth count in the indictment in those cases was not CQvered by the decision rendered. The fourth count in the indictment against Glover and others (and the fourth count in the other three cases is similar to it) avers:

“That said Glover and the other defendants named heretofore, to-wit, on the nineteenth day of November, in the year of our Lord one thousand eight hundred and eighty-four, at the city and county of San Francisco, state and district of California, and within the jurisdiction of this honorable court, did unlawfully, corruptly, and wickedly conspire, combine, and agree together, and with divers other persons to the said grand jurors unknown, to defraud the United States, by presenting and causing to be presented a false, fictitious, and fraudulent claim upon and against the United States, in order to secure the allowance and payment to the said James R. Glover, and to divers other persons to the said grand jurors unknown, of a large sum of money, to-wit, the sum of one hundred dollars, more or less; which said false, fictitious, and fraudulent claim consisted and was to consist of a certain false, fictitious, and fraudulent survey of certain public lands of the United States, to-wit, the survey, marking, and establishing the exterior boundary lines of Tp. 1 S., R. 1 W.; Tp. 1 S.,R. 16 W.; Tp. 1S..R.17 W.; Tp.lüST., R. 16 W.; Tp. IN., R. 17 W.; Tp. 2 17., R. 16 W.; Tp. 2 17., R. 17 W., S. B. M„ — and in certain false, fictitious, and fraudulent field-notes of such false, fictitious, and fraudulent surveys of the aforesaid public lands of the United States; and which said false, fictitious, and fraudulent claim upon and against the United States was designed and intended to be presented to the United States surveyor general for the state of California, for approval and allowance. And the grand jurors aforesaid, on their oath aforesaid, do further say that the said James R. Glover, in execution and in furtherance and pursuance of the said unlawful, corrupt, and wicked conspiracy, agreement, and combination, as aforesaid, afterwards, to-wit, on the thirteenth day of July, in the year A. D. 1885, did at the state and district of California, before M. F. Reilly, a commissioner of the U. S. circuit court, Ninth circuit, district of California, make, sign, and execute a certain false and corrupt oath, affidavit, and certificate, wherein he, the said James R. Glover, then and there falsely, corruptly, and fraudulently did depose, declare, and certify in substance and effect that he had, in his own proper person, made an actual survey of certain public lands of the United States, to-wit, all those parts or portions of the south, east, and west boundary lines of Tp. 1 S., R. 1 W., of the San Bernardino base and meridian, state of California, and that the field-notes accompanying and to accompany the said false and corrupt oath, affidavit, and certificate were true and correct field-notes of such survey, and that he had marked and established the corner monuments of such survey as required bylaw, the surveying manual, and surveying instructions. Whereas, in truth and in fact, no such survey had been made, and the said pretended field-notes did mot represent a bona fide survey, and no such corner monuments had been marked and established, which said false and fraudulent oath, affidavit, and certificate, and which said false, fictitious, and fraudulent field-notes of such pretended survey, were designed and intended to be presented to, and were thereafter presented to, the United States surveyor general for California, for the purpose of securing the approval, allowance, and payment to the said James E. Glover, and to divers other persons to the said grand jurors unknown, of the aforesaid sum of money, more or less, all in furtherance and execution of the said conspiracy aforesaid. Contrary to the form of the statutes of the United States in such case made and provided, and against the peace and dignity of the United States.”