(dissenting).
With deep deference I must dissent. I think the indictment failed with sufficient clearness to charge a conspiracy and since the defendant was tried, convicted and sentenced for conspiracy his conviction should not stand.
Stripped of language not here pertinent, the conspiracy statute reads: “If two or more persons conspire * * * to commit any offense against the United States * * * and one or more of such persons do any act to effect the object of the conspiracy * * 18 U.S.C. 371.
Similarly stripped the indictment charges that the defendants “did * * * *506conspire * * * to commit an offense against the United States, to-wit; to violate Title 8, United States Code, section 1324, that is to say, they did knowingly and wilfully conceal, harbor and shield from detection * * * in Dade County, within the Southern District of Florida (the named alien) * * * and they did transport and move * * * within the United States by means of transportation or otherwise (the said alien); in violation of Title 18, United States Code, section 371.” Then follow in usual fashion allegations of seven overt acts.
We may be sure that all that portion of the indictment which precedes the videlicet or scilicet, “that is to say” amounts to no more than the statement of a legal conclusion. (United States v. Straus, 283 F.2d 155, 158 n. 6, (5 Cir., 1960)), and is, of course, insufficient to charge any offense. Furthermore we normally look to what comes after the videlicet or scilicet to see precisely what the writer, here the draftsman of the indictment, here also the Grand Jury, has in mind. “The use of the videlicet is to point out, particularize, or render more specific that which has been previously stated in general language only; also to explain that which is doubtful or obscure” Black, Law Dictionary (4th ed. 1951). “A general expression in an indictment may be restricted and confined to a precise and definite fact by a description under a videlicet or scilicet” Beauchamp v. United States, 154 F.2d 413, 415 (6 Cir., 1946). We may be sure also that what comes after the “that is to say” does not even point toward a conspiracy, much less allege one, but charges only or at most substantive offenses.
It is basic that the allegations of overt acts cannot be looked to for aid in the charging of a conspiracy. United States v. Britton, 108 U.S. 199, 2 S.Ct. 531, 27 L.Ed. 698, Joplin Mercantile Company v. United States, 236 U.S. 531, 35 S.Ct. 291, 59 L.Ed. 705, Hamner v. United States, 134 F.2d 592, 595, (5 Cir., 1943).
“[T]here are three essentials in a conspiracy indictment: the agreement, the offense-object toward which the agreement is directed, and an overt act. The-agreement is conspiring when it is to commit an offense against the United States.” United States v. Offutt, 75 U.S.App.D.C. 344, 127 F.2d 336, 338. In the case at, bar neither the agreement nor the offense-objects, as such, are with sufficient clearness alleged.
“There is a uniformity in the decisions to the effect that in charging a conspiracy the indictment must distinctly and directly allege an agreement to commit an offense against the United States and inference and implication will not suffice.” United States v. Mathies, 203 F.Supp. 797, 801 (W.D.Penn.1962). “The general rule in reference to an indictment is that all the material facts (Fed.R.Crim.P. 7(c) says “essential facts”) and circumstances embraced in the definition of theoffence must be stated, and that, if any essential element of the crime is omitted, such omission cannot be supplied by intendment or implication. The charge-must be made directly and not inferentially or by way of recital.” Pettibone v. United States, 148 U.S. 197, 202, 13 S.Ct. 542, 545, 37 L.Ed. 419, 422.
The decision of this court in Hamner v. United States, supra, written by Judge Sibley in 1943 would seem to lay this question at rest. There the indictment charged that three defendants “did * * conspire together * * * to commit offenses against and to defraud the United States in the following manner: from and since the 1st of March, 1942, the said defendants have attempted to make many purchases of new rubber tires and tubes for the purpose of and with the intent of enabling the defendants to make sales and transfers thereof to consumers and other persons without receiving certificates from local tire rationing boards; and said defendants did make sales and transfers to consumers in violation of the statutes, orders and regulations hereinbefore referred to. And the Grand Jurors further charge that in the acquisition of said new tires and tubes said defendants made and caused to be made false, fraudulent and fictitious bills, receipts and *507vouchers relating to matters within the jurisdiction of the Office of Price Administration, being an agency of the United States.” Then follow the usual type allegations of overt acts. Of this indictment Judge Sibley, for this court, wrote:
“We * * * do not think the indictment with sufficient clearness charges a conspiring. Confused allegations of what the defendants did are by a sort of inference sought to be made allegations of what they ■conspired to do, as respects sales of tires without rationing certificates. The next sentence beginning: ‘And the Grand Jurors aforesaid do further charge and present, that in the acquisition of new tires and tubes the defendants made and caused to be made false and fraudulent and ■fictitious bills, receipts and vouchers’, takes an entirely fresh start, and charges another substantive offense rather than any sort of conspiracy. Now the gist of the charge of conspiracy is the agreement to commit an offense against or a fraud •on the United States. An overt act must be done pursuant to the agreement before, under 18 U.S.C.A. § 88, the crime is complete, but its essence lies in the agreement. That agreement must be distinctly and directly alleged. Inference and implication will not, on demurrer, suffice. Aid cannot be sought in the allegations ■of what was done in pursuance of it. 15 C.J.S., Conspiracy, § 82; 11 Am. Jur., Conspiracy, Sect. 29; Joplin Mercantile Co. v. United States, 238 U.S. 531, 35 S.Ct. 291, 59 L.Ed. 705; United States v. Britton, 108 U.S. 199, 2 S.Ct. 531, 27 L.Ed. 698. In the present case it is alleged generally that the defendants conspired to commit offenses and frauds, but it is not alleged what offenses and frauds were agreed to be committed. The pleader thenceforth alleges only what was done. What was done is often good evidence of what was1 agreed to be done, but to allege such evidence is not an allowable substitute for a clear statement of the agreement which is proposed to be proven. Such pleading invites the abuse of the conspiracy statute which has often happened by stating several subtantive joint offenses and seeking conviction not only for them but for a conspiracy besides. Such a thing is legally possible, but it emphasizes the necessity for clear pleading of the conspiracy agreement as a thing to be proved separate and distinct from the substantive crimes. Count one is not such a pleading.”
The indictment in the Hamner case is so similar to the indictment here questioned, the opinion of Judge Sibley is so clear and convincing and the principles of law he enunciated are so sound, so obviously correct, that we should need go no further.
The fatal flaws of this indictment could not have been cured by any bill of particulars. A bill of particulars cannot save an invalid indictment. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240. Beitel v. United States, 306 F.2d 665, 671 (5 Cir., 1962). Any suggestion that the error of the trial court in not sustaining the motion to dismiss this indictment should be disregarded because it did not affect substantial rights, Fed.R.Crim. 52(a), would seem to be fully answered by the decision of this court in Beitel v. United States, supra, 306 F.2d at pp. 670, 671, 672. “Conviction upon a charge not made would be sheer denial of due process.” De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278, 282.
I agree with the learned trial court’s first impression of this indictment when he said: “The language is bad. * * * If you had filed it (motion to dismiss) promptly, I would probably have dismissed it. * * * [W]hat it should have said was, ‘They conspired to commit an offense, to-wit: that they would knowingly and wilfully’ and so forth. * -x- -x- jror that, reason I probably would have taken a dim view of it.” *508But I think he was in error when he added “But I will deny the motion at this time.” The motion to dismiss was timely. Its ground 1 reads: “Indictment does not charge an offense against the United States.” Fed.R.Crim.P. 12(b) (2) reads, in part: “Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.”
The fact that the district attorney in his opening statement and the trial court in its charge to the jury stated that the defendant was being tried for conspiracy does not alter the situation. The defendant could not be tried over his protest for a felony for which he had not been indicted. “Ever since Ex parte Bain, 121 U.S. 1 [7 S.Ct. 781, 30 L.Ed. 849,], was decided in 1887 it has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.” Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252, 256. The trial court cannot materially change an indictment by jury instructions. United States v. Alaimo, 297 F.2d 604, 606 (3 Cir., 1961).
The cases of United States v. Illinois Alcohol Co. et al., 45 F.2d 145, 148 (2 Cir. 1930); Blum et al. v. United States, 46 F.2d 850, 851 (6 Cir. 1931); United States v. McKieghan et al., 58 F.2d 298, 302 (E.D.Mich.1932); United States v. J. R. Watkins Co. et al., 120 F.Supp. 154, 157 (D.Minn.1954), cited by the majority deal with indictments readily distinguishable from the indictment in the case at bar.1 The indictment most similar to the one here under discus*509sion is the indictment which this court struck down in Hamner v. United States, supra.
Granted that “The Federal Rules of Criminal Procedure were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure. Rule 2, Fed. Rules Crim.Proc.” (United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 115, 98 L.Ed. 92, 96) nevertheless Rule 7(c) “states that the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. The point at issue here is whether the essential facts of the alleged offense are charged as required by the Rule and the decisions. The older decisions of the courts on this subject are not to be disregarded because it is believed that the rule is the expression of what the law always has been on the preparation of an indictment.” United States v. Mathies, supra.
The charge that the defendants agreed “to violate Title 8, United States Code, Section 1324”, aside from stating only a legal conclusion (United States v. Straus, supra), also falls far short of specifically identifying any offense-object. This is demonstrated by the fact that section 1324 proscribes at least four separate and distinct offenses.
Even if joint action were alleged, the mere alleging of joint action would not constitute charging a conspiracy. While intentional joint action may tend strongly to prove a conspiracy, it would hardly be contended that the mere allegation that a plurality of persons committed a substantive offense is tantamount to a charge that they agreed to do so. The essence of a conspiracy lies in the agreement. Furthermore, laying to one side the overt acts, which cannot aid in the charging of a conspiracy, I have much doubt that the language “they did knowingly and willfully conceal, harbor, etc.,” charges any joint action. There is no charge that they acted jointly or that they aided or abetted one another. I am not convinced either that the offense of concealing an alien necessarily includes an agreement between the person harboring and the one being harbored. While the cooperation of the person being concealed might normally be expected no reason is apparent why the offense of concealment could not be committed without the consent of the alien just as the “white slave traffic act” can be violated without the woman’s consent. See United States v. Holte, 236 U.S. 140, 145, 35 S.Ct. 271, 272, 59 L.Ed. 504, 506 (1915).
I fully agree that the alleged duplicity, if existent, would not be a fatal defect and that a valid conspiracy indictment would lie covering the facts of this case, that is to say that there are ingredients in the conspiracy sought to be alleged which are not present in the completed crime, but for the reasons stated above I would reverse.
. In United States v. Illinois Alcohol Co. et al., 45 F.2d 145 (2 Cir., 1930) there was not even a contention that the indictment failed to charge a conspiracy. The court said: “The indictment * * * charges that the appellants conspired to ‘manufacture, possess, keep, barter, sell, transport, deliver, distribute, accept and receive intoxicating liquors to wit, alcohol,’ which contained more than one-half of 1 per cent., fit for beverage purposes other than as authorized by the National Prohibition Act. It sufficiently charges the conspiracy * * * (145). The indictment, in one count, clearly charges a continuing conspiracy to violate the terms of the National Prohibition Act, (148).” The court’s correct holding was: “If, in carrying out the (properly charged) conspiracy, the appellants committed another offense against the laws of the United States, the recitation of that offense does not make the indictment void for duplicity, nor does it affect the charge of conspiracy in the indictment (148).”
Blum et al. v. United States, 46 F.2d 850 (6 Cir., 1931) is to the same effect as United States v. Illinois Alcohol Co., supra. The district court decision in United States v. McKieghan, 58 F.2d 298 follows the Illinois Alcohol Co. case and the Blum case, and while the opinion does not fully set forth the indictment it discloses that “The indictment, first, in somewhat general language, alleges that from about April 1, 1928, to January 20, 1932, the defendants conspired to violate the National Prohibition Act in the respects specified. Then, having averred in broad terms, the formation of such a continuing conspiracy, the indictment, after a comma, proceeds: ‘All in the following manner, that is to say that the said defendants at the time and places aforesaid, * * * did enter into’ the said conspiray, ‘and the said defendants * * * did’ do the various things which the defendants now claim are there charged as separate and distinct crimes * * * (302).” (Italics supplied.) And in United States v. J. R. Watkins, Co., 120 F.Supp. 154 (D.Minn.1954) the district court held that a conspiracy count alleging that the defendants “did commit an offense against the laws of the United States of America in violation of 18 U.S.C. § 371 by conspiring together to commit offenses against the United States, and also to defraud the United States, in violation of 26 U.S.C. Sec. 3072, 3115(a) and 3116, and Sec. 182.864 of Regulations 3 Industrial Alcohol (1942 Ed.) and 26 U.S.C. Sec. 2800(a) (1) and 3111, by knowingly selling and causing to be sold a liquid medicinal preparation for internal human use * * * ” (Italics supplied) sufficiently alleged an agreement and that the unlawful agreement was to be carried out by the parties “by knowingly selling and causing to be sold a liquid medicinal preparation for internal human use.”