(dissenting).
I am unable to agree with my brothers of the majority.
Count I, under which appellants Lester and Buccieri were convicted, charged that they conspired with the Newport police officer Ciafardini and others to have the latter “while acting in their official capacity * * * wilfully deprive George W. Ratterman * * * of the right to be free from arrest by an officer acting arbitrarily and without legal justification of cause” and further that the plan of the conspiracy was to have Ciafardini and the other officers arrest Ratterman, charge him with a violation of law and cause his conviction “all knowing him to be innocent.”
I read this to mean that appellants conspired with the officers to have these officers wilfully, arbitrarily and without legal justification arrest Ratterman, even though the officers knew that he had done nothing to warrant such arrest. But the jury found that no such plan was carried out, nor had the officers, the alleged co-conspirators, ever so conspired with appellants.
The government, faced with the jury’s verdict acquitting the officers of all misconduct, changes the charge of the indictment to a plan by appellants to have the officers arrest Ratterman not wilfully and arbitrarily, but innocently. Its brief to us states the government’s position on appeal as follows:
“Accepting the verdict of the jury on its face, it represented a finding that appellants conspired together to deprive Ratterman of his civil rights by causing the police, as their innocent dupes, to make an unwarranted arrest of George Ratterman.” (Emphasis supplied.)
That, however, is not what the indictment charged. Neither was such a case submitted for the jury’s decision. But, even assuming the government’s right to assert such a theory, their reasoning will not support the convictions.
Another way of reciting the government’s position is to characterize appellants’ plan as one to create a situation which would cause police officers, acting innocently and with apparent cause therefor, to make an arrest. Such a plan, however, would not contemplate the accomplishment of a violation of § 242, because to be guilty of such violation it would be necessary that the officers, acting under color of law, “wilfully” subject Ratter-man to the deprivation charged. This is not to say that the plan had to be carried *75out, because 18 U.S.C. § 371 would be offended by a conspiracy “to commit any offense against the United States.” However, a § 371 conspiracy must include a plan to have someone “commit an offense against the United States.” The only “offense against the United States” which is charged as the subject of the conspiracy is a violation of .§ 242, which forbids the deprivation “under color of any law * * * of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” Since Ratterman had no right to be free from arrest on probable, though erroneous, cause, the alleged scheme of Buccieri and Lester to create a sham which would lead the officers to innocently arrest Ratterman was not a plan or conspiracy to bring about the commission of this “offense against the United States.” Such conduct would indeed be despicable and constitute a crime punishable under the Kentucky statute,1 but would not add up to the federal offense charged. If the conspiracy was to have the officers, as dupes and acting innocently, arrest Ratterman, it was not a conspiracy to cause a violation of § 242.
I am quite aware of the obviously correct rule that it was not necessary that Buccieri or Lester be themselves capable of committing the substantive offense. United States v. Inciso, 292 F.2d 374 (CA 7, 1961) cert. den. 368 U.S. 920, 82 S.Ct. 241, 7 L.Ed.2d 135; Brown v. United States, 204 F.2d 247, 250 (CA 6, 1953); United States v. Ramey, 336 F.2d 512, 514 (CA 4, 1964); Culp v. United States, 131 F.2d 93, 99 (CA 8, 1942). I find no case, however, holding that a person can be guilty of a § 371 conspiracy where the alleged plan involves no one capable of committing the proscribed act. The officers, as long as they were innocent dupes, could not arrest Ratterman wilfully and without probable cause; the appellants, as civilians, could not, acting under color of law, arrest Ratterman at all.
The government seeks to support its position by the language of 18 U.S.C. § 2(b), which is as follows:
“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.” (Emphasis supplied.)
This is merely a codification of the familiar common-law principle, discussed by the majority, that if I make another person my unwitting tool, I am equally guilty as if I had acted directly. I at once repeat, however, that the jury acquitted the appellants as well as the police officers of Count II which charged the officers with the substantive offense and the appellants with aiding and abetting them. The jury’s verdict can mean only that the offense described in § 242 was not committed. Therefore, no one caused “an act to be done” which was “an offense against the United States.” The government says that if the appellants conspired to cause “an act to be done” which if performed by “another,” (here the police officers) “would be an offense against the United States,” (18 U.S.C. § 2(b)), they were guilty of a conspiracy condemned by § 371. I agree, but the essential ingredient lacking here is the plan to have the “another” commit an “offense against the United States.” Further, this case would not even be an appropriate one for the appellee’s suggested analysis. Section 242 interposes the federal government between the private citizen and the oppressive exercise of state power. The very vice at which the statute is aimed is the conjunction of evil motive and state power in the offender. Absent this, there is no reason why the federal statute should, or could, be employed.
I recognize that to sustain the conviction of appellants we need not find ration*76ality in the jury’s acquittal of the officers and its conviction of appellants. United States v. Austin-Bagley Corporation, 31 F.2d 229, 233 (CA 2, 1929); Grant v. United States, 255 F.2d 341, 342 (CA 6, 1958). Neither of these cases, however, dealt with the statute before us, § 242, which requires the confluence of special capacity- — “color of law,” and malevolent “wilfulness” as prerequisites to the crime. As Judge Learned Hand pointed out in United States v. Austin-Bagley Corp., 31 F.2d 229, 233 (CA 2, 1929): “The verdict must not itself deny the existence of the essential facts”. I consider that the jury’s verdict acquitting the officers did “deny the existence of [one of] the essential facts,” viz: a violation of § 242 or a plan to cause such a violation.
The government speculates that the jury’s exoneration of the police officers did not necessarily exhibit a conviction that they were actually innocent of the charged conspiracy. The appellee’s brief says,
“For example, at the time of the trial one of the officers had been made Chief of Police, the jury might well have felt that his conviction, along with that of two other long-time members of the force, for an event which occurred two years in the past, might have a deleterious effect on the morale of the community, * * *. Alternatively, the jury might have been impressed with the presence of the officers’ families in the courtroom.”
However, such an argument carries the government too far since its reasoning would equally compel the abandonment of the long established rule that a jury may not convict only one of two or more alleged conspirators and exonerate those with whom the convicted one is said to have conspired. The rationale of this rule has been that with the acquittal of the other alleged conspirators, the possibility of establishing one of the “essential facts” of the conspiracy, i. e., the existence of two people who could have agreed, disappears. Cf. United States v. Austin-Bagley, supra, p. 233, and see also cases collected in Annos. 72 A.L.R. 1180, 1182, 1186; 91 A.L.R.(2) 700, 705. The Supreme Court of Tennessee took an analogous position in DeWees v. State, 390 S.W.2d 241, 244 (Tenn.1965) where it held that the acquittal of the only conspirator charged with committing an overt act required the dismissal of all alleged conspirators. Since the jury’s verdict denied an “essential fact,” i. e., the performance of an overt act by one of the conspirators, the conspiracy charge could not stand. The Tennessee court held that this was so notwithstanding that there was sufficient evidence to support a guilty verdict as to all the conspirators had the jury so found. See also Herman v. United States, 289 F.2d 362, 368-369 (CA 5, 1961). I am aware of the generality that the acquittal of some members of a charged conspiracy does not necessarily forbid conviction of others. Baxter v. United States, 45 F.2d 487, 489 (CA 6, 1930); Langley v. United States, 8 F.2d 815, 819 (CA 6, 1925) and see Anno. 91 A.L.R.2d 700, 713. But such general rule is not controlling here.
The government’s brief exposes its position by the assertion that “In the case at bar, we are assuming that the officers were not involved.” Inasmuch as there was no direct evidence of a conspiracy between appellants and the officers, the existence of it has to be inferred from what the officers did. But the jury found that the officers neither acted in violation of § 242 nor conspired to do so. Assuming a conspiracy between Buccieri and Lester to use the officers to act as innocent dupes, the direction of such conspiracy did not contemplate anyone violating § 242.
While they do not deal directly with the question before us, I consider that the United States Supreme Court decisions in United States v. Price, et al., 383 U.S. 787, 86 S.Ct. 1152 (Mar. 28, 1966) (Nos. 59 and 60, Oct. Term, 1965) and United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170 (Mar. 28, 1966) (No. 65, Oct. Term, 1965) support the view that a charge that civilians conspired to violate § 242 would not be sufficient, absent a charge of con*77spiracy or connivance by state agents. In Guest, which dealt with the parallel § 241, the Supreme Court held the indictment’s charge was good as against a challenge that it involved “wholly private action.” The Court said,
“[T]he allegation is broad enough to cover a charge of active connivance by agents of the State * * * amounting to official discrimination.”
and then went on to observe that,
“Although it is possible that a bill of particulars, or the proofs if the case goes to trial, would disclose no cooperative action of that kind by officials of the State, the allegation is enough to prevent dismissal of this branch of the indictment.” (383 U.S. 757, 86 S.Ct. 1177)
I cannot infer from this otherwise than that a lack of an allegation or proof of “connivance by agents of the state” would vitiate a conviction of violation of § 241 and that such view would apply as well to a § 242 charge. That such was the direction of the majority of the court in Guest is emphasized by the partial dissent where Mr. Justice Brennan expresses his understanding of the majority holding,
“I understand this to mean that, no no matter how compelling the proofs that private conspirators murdered, assaulted, or intimidated Negroes * * the prosecution under the second numbered paragraph must fail in the absence of proofs of active connivance of law enforcement officers with the private conspirators in causing the false arrests.” (383 U.S. 776, 86 S.Ct. 1188)
I have studied the many other authorities cited in the briefs before us. I do not discuss them because they do not provide clear precedential guidance.2 It will be sufficient to say that, in my view, the statements therein which appear to give surface support to the government’s position are inapposite because of their differing factual contexts. None deal relevantly with the special character of § 242 which permits the federal government to punish conduct normally punishable as a state matter when such conduct can be viewed as state action violative of the guarantees of the Fourteenth Amendment. I; therefore, write in dissent on the basis of the unambiguous language of the statutes involved.
I regret that I cannot join in sustaining the convictions of appellants. Appellants denied that they were the authors of Ratterman’s arrest and charged that his consumption of Scotch whiskey and a willing approach to the lady known as April Flowers brought on his woe. But there was abundant evidence from which the jury could find that they wickedly conspired to disgrace Ratterman; that Lester, as a lawyer, suborned perjury; and that both, by malicious artifice, led the officers to arrest the innocent Ratter-man. Such conduct would clearly offend state criminal statutes. Dealing with a like situation, the United States Supreme Court in Parr v. United States, 363 U.S. 370, 393, 394, 80 S.Ct. 1171, 1184, 1185, said,
“The strongest element in the Government’s case is that petitioners’ behavior was shown to have been so bad and brazen, which, coupled with the inability or at least the failure of the state authorities to bring them to justice, doubtless persuaded the Government to *78undertake this prosecution. But the showing, however convincing, that state crimes * * * were committed does not establish the federal crime * * * and, under our vaunted legal system, no man, however bad his behavior, may be convicted of a crime of which he was not charged, proven and found guilty in accordance with due process.” (Emphasis supplied.)
I would reverse the judgment of the District Court with direction to acquit and discharge the appellants.
. K.lt.S. § 437.150 Conspiracy to carry on false prosecution. Any persons who conspire, confederate or bind themselves by oath, covenant or agreement, maliciously to aid one another to carry on or institute a false prosecution in the name of the state against any other person shall be fined one hundred dollars or imprisoned for twelve months, or both.
. Among others, Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206; Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277; United States v. Holte, 236 U.S. 140, 144, 35 S.Ct. 271, 59 L.Ed. 504; Berger v. United States, 295 U.S. 78, 81, 55 S.Ct. 629, 79 L.Ed. 1314; Boushea v. United States, 173 F.2d 131 (CA 8, 1949); Kaufman v. United States, 212 F. 613 (C.C.A.2, 1914); Cohen v. United States, 157 P. 651 (C.C.A.2, 1907); Lazarov v. United States, 225 F.2d 319, 321 (CA 6, 1955); Joyce v. United States, 153 F.2d 364, cert. den. 328 U.S. 860, 66 S.Ct. 1349, 90 L.Ed. 1631; United States v. General Motors, 121 F.2d 376, 411 (CA 7, 1941); American Medical Ass’n v. United States, 76 U.S.App.D.C. 70, 130 F.2d 233, 253 (1942) ; United States v. Selph, 82 F.Supp. 56, 58, 59 (D.C. S.D.Cal., 1949); Kaplan v. United States, 7 F.2d 594, 596 (CA 2, 1925) ; Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356.