Berkowitz v. United States

BRADFORD, District Judge.

The plaintiff in error and Richard W. Merrick were indicted in the court below under section 5440 of the revised statutes as amended by the act of May 17, 1879, for unlaw fully conspiring together to utter as trae certain false certificates of naturalization to five persons respectively named in the several counts of the indictment. The indictment contained ten counts, and the conspiracy charged was treated in the first five counts as one to commit an offence against the United States, and in the remaining counts as one to defraud the United States. On the above mentioned indictment, being No. 19 of the February Term, 1898, the defendant, having pleaded not guilty went to trial and was acquitted. Subsequently an indictment under section 5424 of the revised statutes, containing fifteen counts, was found In the court below against the defendant, being No. 10 of the May Term, 1898, charging him in the first five counts with unlawfully selling, in five other counts with unlawfully disposing of, and in the remaining counts with unlawfully uttering as true, certain false certificates of naturalization to five persons respectively named in the several counts of each class; all of these persons respectively bearing the names of the persons mentioned in the former indictment for conspiracy as those to whom false cerlifieates of naturalization were uttered, and all the alleged false certificates mentioned in the last indictment being -in words, letters and figures the same as those set forth in the first. The defendant upon or immediately before his arraignment on the last indictment presented to the court and caused to. be filed a verified allegation or plea, as follows:

TInitecl Staips of America -`-S. Isi~Ior Berkowitz.

May Sessions, 1808. No. 16.

Isiclor Berkowitz tlie above named being ytuly sworn according to law doth depose and say: That on the 23d day of February, A. 1). 1898, he was arraigned and acquitted on a bill of indictment No. 19 February Sessions, 1898. And that the offence to which he is now called upon io defend the facts awl circumstances is substantially and in fact the same, offence of which he was heretofore acquitted as aforesaid, and therefore prays'

Judgment of the Honorable Court. Isidor Berkowitz.

Sworn and subscribed to before me this 17th clay of May, A. D. 1898.

Charles! S. Lincoln,

Clerk District Court, United States.

It does not appear from the record that any issue was taken upon the matters of fact set forth in the allegation or plea, or that any demurrer thereto was filed; and it is admitted by counsel on 'both sides that no such issue was taken and that no demurrer was filed. It does appear, however, from the record that “arguments having been hoard and due consideration having been given thereto, the allegation or plea of the defendant” was overruled by the court. No exception was taken by the defendant to the action of the court in this regard. Thereupon the defendant pleaded not guilty and went to trial. A general'verdict of guilty was rendered, and he was sentenced to fine and imprisonment at hard labor. To reverse this judgment the present writ of error was taken.

The first and third assignments of error present the only questions before us for determ [nation. They allege error in “overruling the defendant’s plea of 'autrefois acquit,’ ” and in ''not permitting the defendant’s plea of 'autrefois acquit’ to be determined by a jury.” We find no error on the latter point. The sworn allegation of the defendant, while informal, may fairly be considered a plea of former acquittal. It was so considered by the court below. It alleges that the defendant ''was arraigned and acquitted on a bill of indictment, No. 19, February Sessions, 1898.” That indictment having been found in the court below, it was unnecessary to refer to it in the plea more particularly. The same force must be given to the plea as if it contained a copy or a particular recital of the former indictment. The plea further alleges in effect identity of offences charged in the two indictments, and identity of certificates of naturalization. and of persons alleged to have received the same. Although no demurrer to the plea was filed, the objection orally made on the part of the government to its sufficiency had the effect of a general demurrer, and the arguments, which ensued without objection on the part of the defendant as to the mode of procedure, were equivalent to a joinder in demurrer. The substantial facts alleged in the plea were thereby admitted to be true. The allegation of identity of offences charged in the two indictments, in so far as it involved matter of law, was not admitted to be true by the demurrer, such matter being solely for the consideration of the court. The counts in the former indictment were confined to alleged conspiracy to utter as true false certificates of naturalization. In the present indictment the defendant is charged in the first class of counts with unlawfully selling, in the second class with unlawfully disposing of, and in the third class with unlawfully uttering as true such false certificates. Assuming for the purposes of this case that a former acquittal or conviction of a person on a charge of unlawfully uttering as true false certificates of .naturalization to certain persons would, if properly pleaded, operate as a bar to a subsequent prosecution of the former defendant for unlawfully selling or disposing of the same certificates to the same persons in the same transaction in which the uttering occurred, we are brought to the main question.

The fifth amendment of the constitution declares “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” This constitutional guaranty by a liberal construction is held to apply to misdemeanors as well as to treason and felony. Has the defendant been twice put in jeopardy for the same of-fence? Section 5424 of the revised statutes, under which he was convicted, provides, among other things, that every person who utters, sells, disposes of, or issues as true or genuine any false certificate of naturalization “shall be punished by imprisonment at hard labor not less than one year, nor more than five years, or by a fine of not less than three hundred dollars nor more than one thousand dollars, or by both such fine and imprisonment.” Section 5440 as amended, the trial of the defendant under which resulted in his acquittal* is as follows:

, “If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all tlio parties to such conspiracy shall be liable to a penalty of not more than ten tliohsand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court.”

The words “any act to effect the object of the conspiracy” apply as well to an act which of itself fully accomplishes that object as to an act merely in furtherance of it. Offences under the above two sections are punishable with imprisonment for more than one year in a slate prison or penitentiary and are, therefore, infamous crimes within the meaning of the constitutional provision that “no person shall bo held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” &c. It is owing to the infamy of the punishment that this safeguard is extended to one accused of such an offence. But it by no means follows that every infamous crime is a felony. In Bannon v. U. S., 156 U. S. 464, 15 Sup. Ct. 467, the court said:

“Neither does it necessarily follow‘that because the punishment affixed to an offence is infamous, the offence itself is thereby raised to the grade of felony. The word ‘felony’ was used at common law to denote offences which occasioned a forfeiture of the lands or goods of the offender, to which capital or other punishment might be superadded according to the degree of guilt. * * * If such imprisonment were made the sole test of felonies, it would necessarily follow that n great many offences of minor Importance, such as selling distilled liquors without payment of the special tax, and other analogous offences under the internal and customs revenue laws, would be treated as felonies, and the persons guilty of such offences stigmatized as felons. * IS By statute in some of the States, the word ‘felony’ is defined to mean offences for which the offender, on conviction, may be punished by death or Imprisonment in the state prison or penitentiary; but in the absence of such statute the word is used to designate such serious offences as were formerly punishable by death or by forfeiture of the lands or goods' of the offender.”

At common law a conspiracy to commit a misdemeanor or a felony was only a misdemeanor. So conspiracy under section 5440, not being declared felony, is also merely a misdemeanor. Is the uttering as true a false certificate of naturalization under section 5424 a misdemeauQr, or a. felony? The doclrine of merger is not applicable as between misdemeanors. A conspiracy to commit a misdemeanor- is not merged in the misdemeanor when committed. Hence it follows that where the offence which is the object of the conspiracy amounts only to a misdemeanor against the United States there is no merger in it of the offence of conspiracy, nor is there a merger of the offence constituting such object in the offence of conspiracy. There is much contrariety of opinion on the question whether, in the absence of a statu!e, a conspiracy to commit a felony is merged in the consummated felony. 2 Whart. Or. Law (8th Ed.) § ¡ :M Í: 1 Bish. New Cr. Law (8th Ed.) § 814; 2 McClain, Or. Law, § 979. It is, however, unnecessary to decide this point. It may be observed in passing that, if the uttering of false certificates of naturaliza lion were a felony, and if Ihe commission of that felony would merge a conspiracy to commit it, the former indictment against the defendant should have charged, not a conspiracy, but its consummated object, and the defendant could not properly have been convicted on the indictment for conspiracy. The offence of uttering as true false certificates of naturalization in the United States is purely of statutory origin. It has never involved the consequences incident to felony at common law. It has never been made felony except by express legislative declaration to- that effect, and, whenever it has been so declared, it has been felony, not by reason of the essential nature of the offence, but solely by virtue of such express declaration.' Without such declaration it would be only a misdemeanor. Section 13 of the act of March 3, 1813, for “the regulation of seamen on board the public and private vessels of the United States” (2 Stat. 809), provided, among other things, that any person who should “pass, utter, or use as true, any false, forged or counterfeited certificate of citizenship” should be “deemed and adjudged guilty of felony,” &c. So, section 2 of the act of July 14, 1870, “to amend the naturalization laws and to punish crimes against the same, and for other purposes” (16 Stat. 254), provided, among other things, that any person who should “utter, sell, dispose of, or use as true or genuine,” any false certificate of naturalization should be “deemed and adjudged guilty of felony,” &c. By the act of June 22, 1874; “to. revise and consolidate the statutes of the United States, in force on the first day of December, anno Domini, one thousand eight hundred and seventy-three,” it was provided, with respect to statutes general and permanent in their nature, that “all acts of Congress passed prior to said first day of December one thousand eight hundred and seventy-three, any portion of which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof.” Rev. St. § 5596. Section 5424, while clearly defining the offences thereby made punishable, does not declare them felonies. The one thing which could have made them felonies is omitted from the section, namely, an express declaration to that effect. To assume that such omission was accidental is inadmissible, especially in view of the fact that the phraseology of section 5424 varies from that employed in section 2 of the act of July 14, 1870, indicating careful revision. While it is true that reference may be had to earlier enactments to throw light upon the legislative intent where obscure or doubtful words or phrases occur in the revised statutes, such reference is not permissible where no such doubt or obscurity exists. The omission from section 5424 of any declaration of felony shows a legislative intention that the offences therein enumerated should not be deemed felonies. U. S. v. Coppersmith, 4 Fed. 198. If not felonies, they are only misdemeanors. Indeed, it would not have required an express repeal to produce the same result. In Tracy v. Tuffly, 134 U. S. 206, 10 Sup. Ct. 527, the court said:

“While it is true that repeals by implication are not favored by the courts, it is settled that, without express words ot' repeal, a previous statute will be held to be modified by a subsequent one, if the latter was plainly intended to cover the whole subject embraced by both, and to prescribe the only rules with respect to that subject that are to govern.”

And in Ellis v. Paige, 1 Pick. 43, the Supreme court of Massachusetts used the following apt language:

“It is a well settled rule that when any statute is revised, or one act framed from another, some parts being omitted, the parrs omitted are not to be revived by construction, but are to be considered as annulled. To hold otherwise would lie to imputo to the legislamre gross carelessness or ignorance; which is altogether inadmissible.”

The offence of uttering, selling or disposing of false certificates of naturalization in viola I ion of section 5424 being only a misdemeanor, there could be no merger as between it and. a conspiracy of which it ivas the object.

The act to effect the object of the conspiracy is no part of the of-fence under section 5440. If there be a conspiracy to commit an of-fence against the United States or to defraud the United States, the offence under that section is complete, although no successful prosecution can be had without proof of an act in aid, furtherance, or accomplishment of the object of the conspiracy. The unlawful confederacy constitutes the offence. In U. S. v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, the court, in dealing with an indictment charging conspiracy under section 5440 to violate the provisions of section 5204 and 520!) relating to national banks, said:

“The offence charged in the counts o£ this indictment is a conspiracy. This offence does not consist of both the conspiracy and xhe acts done to effect the object of the conspiracy, but of the conspiracy alone. The provision of the stature, that there must be an act done to effect the object of the conspiracy, merely affords a locus penitentise, so that before the act done either one or all of the parties may abandon their design and thus avoid the penalty prescribed by the statute.”

In Dealy v. U. S., 152 U. S. 539, 14 Sup. Ct. 680, where the indictment charged conspiracy under section 5440 to defraud the United States of lands by means of false entries under the homestead laws, the court quoted with approval the above passage from the opinion in U. S. v. Britton and said:

“The gist of the offence is the conspiracy. * * * Hence if the conspiracy was entered into within the limits of the United States and the jurisdiction of the court, the crime was then complete, and a subsequent overt act in pursuance thereof may have been done anywhere.”

Section 1035 of the revised statutes provides that “in all criminal causes the defendant may be found guilty of any offence the commission of which is necessarily included in that with -which lie is charged in the indictment/'’ &c. An uttering by the defendant of false certificates of naturalization was, as we have seen, no part of the offence of conspiracy charged against him in the former indictment, nor was it necessarily included in that offence. The act to effect the object of the conspiracy need not be the act of all the conspirators, but of any one or more of them. A conviction of one on a charge of conspiracy to utter a false certificate of naturalization does not show that he uttered such certificate. It may have been uttered solely by a co-conspirator. Bo an acquittal of one on such a charge is not in the least inconsistent with his having uttered such a certificate. There may have been a failure to prove a conspiracy. The evidence on which he was convicted or acquitted on a charge of conspiracy may be wholly immaterial in a subsequent prosecution for uttering such a certificate, as not tending either to support a conviction or to secure an acquittal. If all the facts necessary to support the present indictment had been proved on the former trial they would not have warranted a conviction of the defendant under the former indictment of the offence of uttering false certificates of naturalization. Each count in that indictment charged conspiracy, which is an offence separate and distinct from that here alleged and subject to a different punishment. To hold that the defendant could have been convicted under the former indictment of the offence with which he is charged in this case would be to decide either that the former indictment did not allege conspiracy, but only the uttering of false certificates of naturalization, or that, in contravention of the rules of criminal procedure, a conviction could properly be had under a count embracing two separate and distinct offences differently punishable. If conspiracy had been insufficiently charged in the former indictment, a question might have arisen which it is unnecessary here to consider. We do not find any ambiguity or uncertainty in the former indictment as to the nature of the offence charged. Each count expressly set forth a conspiracy to utter a false certificate of naturalization, contained a copy of it, and alleged that such certificate was uttered “to carry out and effect the object of said conspiracy.” Nowhere in that indictment was the uttering of a false certificate alleged as an independent offence. The defendant had á constitutional right “to be informed of the nature and cause of the accusation,” and this right he enjoyed. He could not on his former trial have been convicted of the offence with which he is here charged without a practical nullification of that constitutional guaranty. As he could not have been so convicted, he has not for the offence of uttering false certificates of naturalization twice been put in jeopardy. There was, therefore, no error in overruling the plea of former ac; quittal. The judgment below is affirmed.