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May 23, 1958

Henry W. GRUNEWALD, Daniel A. Bolich and Max Halperin, Defendants

The opinion of the court was delivered by: HERLANDS

Upon the trial of this indictment, the first count of which charges a conspiracy under 18 U.S.C. § 371, the following question of law has been raised and argued by counsel: Does proof of an overt act within the statutory period of limitations (in this case, after September 1, 1951) serve to toll the statute, where such overt act is not pleaded in the indictment?

As a preliminary to the answer, it is necessary to make a sharp distinction between the pleading of an overt act in a conspiracy indictment and the proof of an overt act upon the trial.

 Title 18 U.S.C. § 371, the general conspiracy statute, relevantly provides:

 'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, * * * and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $ 10,000 or imprisoned not more than five years, or both.'

 The first count of the indictment pleads thirteen overt acts, a number of which come within the statutory period. Because the United States Supreme Court (Grunewald v. United States, 1957, 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931), had reversed the conviction of Halperin, Grunewald and Bolich, the three defendants now being re-tried, and because it is critically important for the prosecution to establish at least one overt act within the statutory period in accordance with the principles made specifically applicable by the Supreme Court, the United States Attorney has formally advised the Court and defense counsel (Trial Minutes, pages 934-939) that the prosecution intends to prove a number of overt acts which are not pleaded in the indictment but which, if established, would come within the statutory period, i.e., after September 1, 1951.

 Objecting to this line of evidence, defense counsel argue that the overt act relied upon by the prosecution to toll the statute of limitations must be one of the overt acts pleaded in the indictment; and that the prosecution's proposal to rely upon proof of non-pleaded overt acts for the purpose of tolling the statute is an invalid attempt to amend the indictment.

 That the prosecution in a conspiracy case must prove at least one of the overt acts alleged in the indictment is the rule in the New York state courts (People v. Hines, 1940, 284 N.Y. 93, 29 N.E.2d 483) and in at least one Federal circuit (Fredericks v. United States, 9 Cir., 1923, 292 F. 856). However, the decision in the Hines case, supra, is based upon an express provision of the New York Code of Criminal Procedure, 398. That section requires the prosecution not only to plead an overt act but also to prove 'one or more of the acts alleged' in order to sustain the conviction. There is no comparable Federal statutory provision.

 Moreover, the Court of Appeals for the Second Circuit has explicitly declined to follow the Fredericks case, supra, in United States v. Negro, 2 Cir., 1947, 164 F.2d 168, 173.

 In the Negro case, supra, the Court of Appeals reversed a narcotics conspiracy conviction and ordered a new trial. In laying down the principles which should guide the District Court upon the new trial, Judge Frank (writing for a unanimous court) expressly stated that the conspiracy indictment could be sustained by proof of an 'unalleged overt act.' At page 173. In reaching this conclusion, Judge Frank reviewed the various decisions which have considered the role and significance of 'overt acts' in the law of conspiracy. He also pointed Rules of Criminal Procedure, Rule 7(c), 18 U.S.C., which provides, inter alia, that the indictment shall be 'a plain, concise and definite written statement of the essential facts constituting the offense charged,' and that it 'need not contain * * * any other matter not necessary to such statement.' At page 173.

 Judge Frank took the position that proof of and reliance upon an unalleged overt act does not constitute a fatal variance between the evidence and the indictment; and that, at most, the situation might justify a defense request for an adjournment because of surprise. At page 173. In the present case, there has been no suggestion of surprise and there has been no request for an adjournment.

 Pleading in modern criminal law has become more and more simplified. Prolix indictments have been supplanted by the short form of indictment. An acknowledged authority has said that the test of the sufficiency of an indictment is 'whether the indictment adequately apprises the accused of the charge against him, and also is sufficiently definite to enable him to plead double jeopardy in the event that he should be subsequently charged with the same offense.' Holtzoff, A Criminal Case in the Federal Courts, Rules of Criminal Procedure and Criminal Code (1957 ed., West Publishing Co.) p. 10.

 In the light of this function of satisfying constitutional standards, it has been long said that the gravamen or corpus delicti of the crime of conspiracy is the agreement or combination, even where the particular conspiracy statute required an overt act. Dealy v. United States, 1894, 152 U.S. 539, 547, 14 S. Ct. 680, 38 L. Ed. 545; Hyde v. Shine, 1905, 199 U.S. 62, 76, 25 S. Ct. 760, 50 L. Ed. 90; Hyde v. United States, 1912, 225 U.S. 347, 387-388, 32 S. Ct. 793, 56 L. Ed. 1114 (Holmes J. dissenting); United States v. Downing, 2 Cir., 1931, 51 F.2d 1030, 1031; United States v. Donau, C.C.S.D.N.Y.1873, Fed.Cas.No.14,983. But see Hyde v. United States, 1912, 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, majority opinion.

 The history of the law of conspiracy going back to the 14th Century, demonstrates that, at common law, the crime of conspiracy was complete when the defendants entered into the proscribed agreement. Sayre, Criminal Conspiracy, 35 Harv.L.Rev. 393, 399 (1925); 8 Holdsworth, A History of English Law, 380 (1925), (especially n. 6); 1 Wharton, Criminal Law and Procedure (1957) section 86, and cases cited in n. 13 at p. 184.

 At common law, the corpus delicti of the crime of conspiracy was fully established by proof that the co-conspirators had actually entered into the agreement, that is, proof consisting of evidence of words or conduct establishing such agreement, as distinguished from the mere subjective meeting of the minds. There was no requirement at common law that the prosecution prove, in addition to such agreement, the doing of an overt act pursuant to the agreement. Indeed, this common law rule has been carried forward to this day in a number of Federal statutes, such as Title 15 U.S.C.A. §§ 1 and 2, Title 18 U.S.C. § 372; Title 26 U.S.C. § 4047(e)(4); and Title 18 U.S.C. § 2385. See Yates v. U.S., 1957, 354 U.S. 298, ...

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