UNITED STATES of America, Appellee, v. Charles E. LESTER and Edward Anthony Buccieri, Appellants.
Nos. 16093, 16094.
United States Court of Appeals Sixth Circuit.
July 8, 1966.
O’Sullivan, Circuit Judge, dissented.
J. Leonard Walker, Louisville, Ky., for appellant, Lester.
Howell W. Vincent, Covington, Ky., J. Leonard Walker, Louisville, Ky., on brief, for appellant, Buccieri.
Harry I. Subin, Dept. of Justice, Washington, D. C., Herbert J. Miller, Jr., Asst. Atty. Gen., Peter R. Richards, Atty., Dept. of Justice, Washington, D. C., on brief, for appellee.
Before O’SULLIVAN and PHILLIPS, Circuit Judges, and MATHES, Senior District Judge.
William C. Mathes, Senior District Judge of the Southern District of California, sitting by designation.
MATHES, Senior District Judge.
Charles E. Lester and Edward Anthony Buccieri appeal from the judgment entered upon a jury verdict finding them guilty as charged, in count one of an indictment, which alleged that appellants and another private citizen, one Carinci, conspired together and with three members of the police force of Newport, Kentucky, to commit an offense against the laws of the United States, in violation of 18 U.S.C. § 371.
The offense averred to be the object of this conspiracy was to violate 18 U.S.C. § 242 by willfully depriving one George W. Ratterman, under color of State law, “of rights, privileges and immunities secured to him and protected by the Fourteenth Amendment to the Constitution of the United States; namely, the right not to be deprived of liberty without due process of law, the right to be free from arrest by an officer acting * * * without legal justification * * * and the right not to be denied the equal protection of the law.” It is further alleged in the indictment that: “It was the plan and purpose of the conspiracy that [the three defendant police officers] * * *, while acting * * * under color of law, would arrest and imprison George W. Ratterman, charge him with a violation of law, and cause his conviction, all knowing him to be innocent.”
In count two of the indictment, the police officers were accused of the commission of the substantive offense which was the asserted object of the conspiracy; while appellants and Carinci were charged with aiding and abetting the police officers in their violation of 18 U.S.C. § 242. The jury convicted both appellants of the conspiracy charged in count one, but acquitted them of the substantive offense charged in count two. All other defendants, including the three police officers, were acquitted by jury verdict of all charges — both the conspiracy and the substantive offense.
As grounds for reversal of their conviction on the conspiracy count, appellants contend: (1) that the evidence was insufficient to support the conviction; (2) that in giving the jury an instruction which included reference to “persons unknown”, the trial court committed prejudicial error; (3) that the trial court likewise erred in refusing to instruct the jury: “Unless you find from the evidence that one or more of the * * * [police officers] were acting under color of law and guilty of the alleged charges * * *, then the law is for the defendant, * * * Lester, and you shall so find * * * ”; and (4) that since the police officers were acquitted on both counts, appellants’ motion after verdict for judgment of acquittal, pursuant to Rule 29(b) of the Federal Rules of Criminal Procedure, should have been granted. We shall deal with each of these contentions seriatim.
In determining whether the evidence of guilt was sufficient to sustain the verdict, it is worth recalling that “[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” [Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).]
The evidence, direct and circumstantial, in the case at bar, together with the inferences which the jury could reasonably have drawn therefrom, combined to ■warrant the jury in finding inter alia the following facts: The Glenn-Tropicana, a combination nightclub and hotel in Newport, Kentucky, across the Ohio River from Cincinnati, had been favored for many years with somewhat-less-than-vigorous enforcement of the State laws prohibiting gambling and prostitution. In April of 1961, upon the announcement of George W. Ratterman as a “reform” candidate for sheriff, defendant Carinci, a co-proprietor of the Glenn-Tropicana, telephoned one Thomas Paisley and asked him to arrange a meeting for Carinci with Ratterman.
A few days later, on April 14, appel- - lant Lester, attorney for the Glenn-Tropicana, telephoned a Newport photographer and asked him to talk to appellant Buc-cieri, another co-proprietor of the Glenn-Tropicana, about a picture. In due course, the photographer contacted Buc-cieri who told the photographer that his services would be needed “to take a picture of a man and a woman in a room”; and added the assurance: “Now, don’t worry about anything, we will protect you.” The photographer gave Buccieri a telephone number where he could be reached at night.
On May 8, 1961, Paisley came to Cincinnati and had cocktails and dinner with Ratterman, commencing at about 5:45 in the afternoon, following which they met with Carinci at a Cincinnati restaurant. After consuming several drinks in the course of the evening, Ratterman and Ca-rinci and Paisley went over to the Glenn-Tropicana for supper. Upon their arrival about 1:30 A.M., Ratterman and Paisley were ushered into Glenn-Tropicana’s suite 314 on the third floor, near which an illegal gambling operation was regularly conducted. Appellant Buccieri then sent Rita Desmond, one of the club’s showgirls upstairs to suite 314 to have a drink with Paisley and Ratterman. Shortly after Rita arrived, Ratterman, who was extremely drowsy by now, left the sitting room of the suite and lay down in an adjoining bedroom.
Carinci next directed April Flowers, another of the Glenn-Tropicana’s showgirls, to stop her striptease act and go at once to suite 314 without bothering to change her costume. When April arrived, she was asked by Rita to go into the bedroom and try to awaken Ratter-man. April did so, but her efforts failed to arouse Ratterman. Carinci then came to suite 314 and requested Rita and Paisley to go elsewhere in the club with him, leaving April and Ratterman alone in the bedroom of 314.
Meanwhile, approximately ten minutes after Ratterman had arrived at the Glenn-Tropicana, someone called the photographer’s home, and left word for him to call Buccieri at the club. However, the photographer did not return the call. At 2:20 A.M., the gambling operations on the third floor were closed substantially earlier than usual, and the patrons were asked to leave the third floor.
At 2:32 A.M., an anonymous phone call was received at the Newport police station for one of the defendant police officers, who was told: “If you want to get George Ratterman, he is in Room 314 of the Glenn Hotel.” The three defendant officers thereupon went to the Glenn-Tropicana at 2:35 A.M., where they first arrested Carinci, and then April Flowers as she emerged from the bedroom of suite 314. That done, there followed a brief scuffle between the police officers and Ratterman, and the latter was taken into custody, wrapped in a bedspread. Testimony by the police officers that he was found with his trousers off was disputed by Ratterman, who said that his trousers had been removed from him by the officers.
Appellant Lester promptly arrived at the police station, after having called a bondsman who posted bail for April Flowers and Carinci, but refused to provide bail for Ratterman. Appellant Lester admitted that he had been up since 2:00 A.M., “when the Ratterman deal broke” — well more than a half hour before the arrests occurred. At approximately 4:00 A.M. following the arrests, all six persons accused in the indictment —including the three police officers— were seen together at the Glenn-Tropicana, and at the Flamingo Club an hour later.
Examination of Ratterman the following day disclosed traces of from three to four grams of chloral hydrate [“knockout drops”] estimated to have been ingested between 10:00 and 11:00 P.M. the previous evening.
Since the jury acquitted all the accused of the substantive offense charged in count two of the indictment, it would serve no useful purpose to recount here the evidence dealing particularly with that offense; other than perhaps to record that the police-court case against Ratterman was dismissed after his attorney was able to produce the photographer, whose account of the efforts to have him take a picture of the planned bedroom scene persuaded the City Attorney of Newport that the affair was a sham.
There was ample evidence to sustain the conviction of both appellants on the conspiracy count. Indeed, we must say that the evidence was ample to sustain a conviction of all defendants on both counts.
Turning now to appellants’ objections to the instructions given to the jury the record discloses, as appellants point out, that the District Court instructed the jury in the language of the indictment at one point during the charge and, in so doing, did say that if the jury should believe beyond a reasonable doubt that the six defendants named in the conspiracy count had conspired with each other “and with other persons to the grand jury unknown”, as charged, the defendants could be found guilty. But the District Judge went on to make it crystal clear that only the six named defendants were involved under the evidence in the case, by further instructing the jury that: “[T]he conspiracy charged in the first count * * is a charge that these six defendants agreed among themselves to commit the unlawful act. * * *”
Moreover, no objection to the mention of “persons unknown” was made at the trial [see Fed.R.Crim.P. 30] and, considering the instructions as a whole, the reference to “persons unknown” of which appellants complain could not have adversely affected any of their substantial rights [see: Fed.R.Crim.P. 52(b); United States v. Walker, 313 F.2d 236, 241 (6th Cir. 1963); Conley v. United States, 257 F.2d 141, 144 (6th Cir. 1958)].
The gist of appellants’ argument in support of their remaining contentions rests upon the assumption that since they, as private citizens, were incapable of acting “under color of law”, and hence were incapable of the offense defined in 18 U.S.C. § 242, they could not be guilty of conspiring to commit that offense in violation of 18 U.S.C. § 371. [Cf.: United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (3/28/66) ; United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (3/28/66).]
This argument misconceives the function of 18 U.S.C. § 2, which provides that:
“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal, [and]
“(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” [Italics added.]
In keeping with the provisions of § 2, it has long been held that an indictment need not specifically charge “aiding and abetting” or “causing” the commission of an offense against the United States, in order to support a jury verdict based upon a finding of either. All indictments must be read in effect, then, as if the alternatives provided by 18 U.S.C. § 2 were embodied in each count thereof. [See: Nye & Nisson v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949); Remus v. United States, 291 F. 513 (6th Cir. 1923); cf. Fed.R.Crim.P. 7(c).]
In the case at bar, therefore, both the indictment and the verdict must be read in light of the acquittal of the police officers, as if it were alleged, and the jury had found, that appellants had conspired willfully to “cause” innocent police officers to act “under color of law” to deprive Ratterman of his civil rights, in contravention of 18 U.S.C. § 371. [See Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954).]
To this appellants would reply that since it is one of the essential elements of the offense defined in 18 U.S.C. § 242 that the act depriving a person of his “civil rights” be done “under color of law”, and appellants were incapable of acting under “color of law”, they may not be convicted of conspiring, in violation of 18 U.S.C. § 371, to cause innocent agents, who do have such capacity, to commit acts denounced by 18 U.S.C. § 242.
The short answer to this argument is that it was of doubtful enough validity prior to the 1951 amendment of 18 U.S.C. § 2(b), and can have no possible validity since that amendment. [See 65 Stat. 717 (1951).] For it was held long ago that even though “a defendant was incompetent to commit the offense as principal by reason of not being of a particular age, sex, condition, or class, he may, nevertheless, be punished as procurer or abettor.” [United States v. Snyder, 14 F. 554, 556 (C.C.D.Minn. 1882).]
This doctrine is an outgrowth of common law principles of criminal responsibility dating at least as far back as Regina v. Saunders, 2 Plowd. 473 (1575); and of principles of civil responsibility established, by force of the maxim qui facit per alium faeit per se, at least as early as the 14th century. [See: United States v. Gooding, 25 U.S. (12 Wheat.) 460, 6 L.Ed. 693 (1827); Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L.Rev. 689 (1930).]
Although a literal reading of the predecessor of present 18 U.S.C. § 2(b) only made punishable as principal one who willfully caused an act to be done “which if directly performed by him” would be an offense against the United States [62 Stat. 684 (1948)], it was declared that a person incapable of committing a particular offense against the United States was nonetheless punishable as a principal, if he willfully caused an innocent person, capable of doing so, to commit the proscribed act. [See United States v. Selph, 82 F.Supp. 56 (S.D.Calif. 1949); cf. Boushea v. United States, 173 F.2d 131 (8th Cir. 1949).] This view as to the scope of § 2(b) is buttressed by the fact that in 1951 the Congress, as if in anticipation of appellants’ argument here, amended the above-quoted phrase of § 2 (b) to read: “which if directly performed by him or another”. [65 Stat. 717 (1951); italics added.] The Congressional purpose in enacting this amendment was “to * * * make certain the intent to punish [persons embraced within § 2] * * regardless of the fact that they may be incapable of committing the specific violation. * * * ” [1951 U.S.Code Cong.Service pp. 2578, 2583.]
It has been beyond controversy, then, at least since the 1951 amendment to 18 U.S.C. § 2(b), that the accused may be convicted as causer, even though not legally capable of personally committing the act forbidden by a Federal statute, and even though the agent willfully caused to do the criminal act is himself guiltless of any crime. [See:. Unitea States v. Inciso, 292 F.2d 374 (7th Cir. 1961) ; United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, 250 F.Supp. 412 (N.D.Tex.1966).]
Finally, it is said that since acquittal of the police officers negatives any contention that they acted “willfully”, it was impossible for appellants as civilians to commit the conspiracy offense of which they stand convicted. [See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).] True it is, of course, that criminal intent is an essential element of each crime charged in the indictment; indeed an essential element of every felony.
It is but to quote the hornbook to say that in every crime there must exist a union or joint operation of act, or failure to act, and intent. However, this is far from suggesting that the essential element of criminal intent must always reside in the person who does the forbidden act. Indeed, the latter may act without any criminal intent whatever, while the mens rea — “willfulness”—may reside in a person wholly incapable of committing the forbidden act. When such is the case, as at bar, the “joint operation of act and intent” prerequisite to commission of the crime is provided by the person who willfully causes the innocent actor to commit the illegal act. And in such a case, of course, only the person who willfully causes the forbidden act to be done is guilty of the crime.
We can perceive no basis in reason or policy to distinguish a case of willfully causing innocent police officers, “acting under color of law”, to deprive another of his civil rights, from a case of willfully causing an innocent bank clerk to mail a fraudulently obtained check [Pereira v. United States, supra, 347 U.S. 1, 74 S.Ct. 358], or causing a lender to make a false report of prices paid for homes [United States v. Selph, supra, 82 F.Supp. 56], or causing a union representative to receive money unlawfully from employers [United States v. Inciso, supra, 292 F.2d 374], or causing a licensed dealer in firearms to fail to maintain required records [United States v. One 6.5 mm. Mannlicher-Car-cano Military Rifle, supra, 250 F.Supp. 410],
Nor do we discern any rationale for refusing, as appellants suggest, to apply the conspiracy statute [18 U.S.C. § 371] to crimes made punishable by 18 U.S.C. § 2(b). So long as anyone who “willfully causes an act to be done” which, “if directly performed by him or another would be an offense against the United States”, is punishable as a principal, it follows a fortiori that when two or more persons conspire willfully to “cause” an act forbidden by § 2(b), they ex necessitate conspire to “commit [an] offense against the United States” within the meaning of 18 U.S.C. § 371.
We read- the charge in its entirety and find that the trial judge adequately instructed the jury that, under the evidence in the case, appellants could properly be convicted of conspiring willfully to cause the police officers, acting “under color of law”, to deprive Ratterman of his civil rights.
Of no consequence here is the fact that one reading the record before us might find it difficult, perhaps even impossible, to comprehend how the jury could have acquitted all the police officers of the conspiracy offense. It is not the province of the Court to inquire by what course of reasoning the jury may have reached seemingly inconsistent verdicts. Inconsistency of verdicts as to various defendants in a particular case has always been an exclusive prerogative of the jury. [See: United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943); Lazarov v. United States, 225 F.2d 319 (6th Cir. 1955); United States v. Austin-Bagley Corp., 31 F.2d 229 (2d Cir. 1929); cf. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); Grant v. United States, 255 F.2d 341, 342 (6th Cir. 1958).]
By acquitting the police officers, while convicting appellants of the conspiracy offense, the jury necessarily found that appellants conspired willfully to cause the police officers to act “under color of law” and, while so acting, to make an unlawful arrest of Ratterman, and attempt to bring about a false conviction— albas charged in the conspiracy count of the indictment.
We hold that the evidence in the case fully supports this verdict.
Appellants were fairly tried and fairly convicted. The judgment of the District Court is affirmed.