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UNITED STATES v. COGAN

March 14, 1967

UNITED STATES of America
v.
David COGAN, Defendant



The opinion of the court was delivered by: COOPER

COOPER, District Judge.

 Defendant is charged with conspiracy (18 U.S.C. § 371), bribery (18 U.S.C. § 201) and aiding and abetting the receipt of those bribes (26 U.S.C. § 7214(a)(2)). He moves to dismiss part of the indictment, to compel an election between various counts and for a bill of particulars. We treat each motion separately.

 Motion to Dismiss Count 1

 Count one of the indictment charges that defendant conspired with Sol Myers, defendant's employee, and eight Internal Revenue agents. It is alleged: (1) the agents received fees not provided by law, (2) defendant offered the agents fees, other than provided by law, in recognition of acts performed by the agents and (3) defendant, through Myers, offered money to the agents to influence their official actions.

 Defendant contends: "It is well recognized that in a crime where the participation of at least two persons is necessary and concert of action is essential to the offense, an indictment will not lie charging a conspiracy to commit such offense." *fn1" While defendant correctly states the law, we do not believe that this case falls within its provisions.

 The proposition enunciated by defendant appears to have been first set forth by Wharton in his treatise on criminal law:

 
When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a nature that it is aggravated by a plurality of agents can not be maintained. 2 Wharton, Criminal Law § 1604, at 1862 (12th ed. 1932).

 There are at least two exceptions to the rule and we believe that this case falls within both. The first is that, "This rule does not apply when the offense could be committed by one of the conspirators alone." 1 Anderson, Wharton's Criminal Law and Procedure § 89, at 192 (1957). *fn2" The conspiracy count in this case charges not only the giving and the receipt of a bribe, but also that the defendant offered a bribe. An offer does not require concert of action; it is an action capable of performance unilaterally. *fn3" Accordingly, the indictment as pleaded survives dismissal.

 The second exception to the so-called Wharton rule is:

 
The principle is also limited to cases where the essential participants are the only conspirators. When those whose cooperation is necessary for the commission of the substantive crime conspire with another person to commit the offense, all are guilty of conspiracy. 1 Anderson, Wharton's Criminal Law & Procedure, supra at 193.

 The policy behind this rule is to avoid double punishment. When the substantive offense itself contemplates an illegal agreement, the parties thereto should not be punished a second time for entering into the same agreement called a conspiracy. *fn4" When, however, there are more who participate than are necessary to commit the substantive offense, no longer is there a problem of double punishment. Such a situation actually presents two agreements, the first constituting the agreement between the parties and essential to the offense, and the second constituting the broader agreement between all those involved.

 In the present case we can not discard the possibility of an agreement between defendant and Myers whereby Myers was the intermediary through whom the bribery scheme was executed; an agreement between defendant and all the Internal Revenue agents covering the general nature of the bribery scheme; and finally an agreement between defendant and each co-conspirator that constituted the specific bribery agreements charged in the indictment. Each agreement would be of a different nature and would require appropriate proof to establish.

 Accordingly, defendant is properly chargeable with both bribery and conspiracy.

 There is a second reason making inapposite the application of the Wharton rule - when there are more parties who collaborate than are necessary to commit the substantive offense. The general rational of the concept of conspiracy is that "* * * collective action toward an antisocial end involves a greater risk to society than individual action toward the same end." Developments - Criminal Conspiracy, 72 Harv.L.Rev. 920, 923-24 (1959). Likewise, when more than two people participate in a bribery scheme, the risk to society is correspondingly increased.

 In the instant case, for example, if each of the eight Internal Revenue agents entered into the conspiratorial agreement and had knowledge of the participation by the others, they would probably be more confident in carrying forward their illegal acts, more likely to continue their illegal deportment and encouraged to rationalize their actions. Thus, to an increased degree their combined efforts become more emphatically ...


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