The opinion of the court was delivered by: GODDARD
This is a motion by the defendants, Philip Albanese and Rosario Albanese,
(a) To dismiss Count 1 of indictment C 143-289 on the ground that it fails to charge offenses under Title 18 U.S.C.A. § 1001 and Title 26 U.S.C.A. § 371 [sic]
(b) To dismiss the said Count 1 on the ground that insofar as it charges a violation of Title 26 U.S.C.A. § 145(b), it is identical with the 4 counts charged in indictment C 142-126 outstanding against these defendants
(c) To dismiss said Count 1 on the ground that any violation of Title 18 U.S.C.A. § 371 is barred by the three year statute of limitations
(d) To dismiss Count 2 of indictment C 143-289 on the ground that it is identical with the crime charged against these defendants in Count 2 of indictment C 142-126.
The government has consented to dismiss Count II of C 142-126. Therefore, part (d) of this motion is denied.
Indictment C 143-289 in Count 1 charges these defendants with conspiring to 'defraud the United States and commit offenses against the United States, to wit, to violate Title 26, Section 145(b), United States Code and Title 18, Section 1001, United States Code.'
It is clear from reading this indictment, Count 1, that it charges the essential elements of the offense charged and that it sufficiently informs the defendants of the charge against them. Particularity of time, place, circumstances, etc. in stating the manner and means of effecting the object of a conspiracy is not essential to an indictment. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680. Part (a) of the motion is denied.
Indictment C 142-126 charges Philip Albanese in 4 counts with attempted evasion of his income taxes, in violation of Title 26 U.S.C.A. § 145(b), and charges Rosario Albanese in two of the counts with aiding and abetting. Count 1 of indictment C 143-289 charges Rosario and Philip Albanese with conspiring with each other, and with one, Rocco Guarino, a co-conspirator, to violate Title 26 U.S.C.A. § 145(b) and Title 18 U.S.C.A. § 1001. Defendants allege that Count 1 of C 143-289 is identical with the counts of C 142-126 and so Count 1 of C 143-289 should be dismissed.
In Pinkerton v. United States, 328 U.S. 640, at page 643, 66 S. Ct. 1180, at page 1182, 90 L. Ed. 1489, the court stated that 'it has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.' It is also true that the crime of conspiracy is a separate and distinct offense from aiding and abetting the commission of the substantive offense. Louie v. United States, 9 Cir., 218 F. 36. Aiding and abetting 'makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy.' Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S. Ct. 766, 770, 93 L. Ed. 919.
Although the defendants rely on United States v. Zeuli, 2 Cir., 1943, 137 F.2d 845, as the court stated in United States v. Loew, 2 Cir., 1944, 145 F.2d 332, 333:
'The appellant misunderstands the doctrine to which we referred in United States v. Zeuli [2 Cir.], 137 F.2d 845. It is limited to cases in which the substantive crime involves the mutual co-operation of two or more persons and cannot be committed by a single individual. All of the substantive crimes, contemplated by the conspiracy charged in the indictment at bar could have been committed by one person.'
There is no doubt but that Count 1 of indictment C 143-289 charges a conspiracy which is a distinct offense from the substantive crimes charged in C 142-126. cf. Colosacco v. United States, 10 Cir., 1952, 196 F.2d 165. Part (b) of the motion is denied.
The defendants allege that Count 1 of the indictment C 143-289 is barred by the three year statute of limitations provided in Title 18 U.S.C.A. § 3282.