Mullen, Katharine Curnen

English

St. John's University School of Law

St. John's Law Review Volume 20 Number 1 Volume 20, November 1945, Number 1 Article 5 July 2013 Varying Elements of Conspiracy Under Federal Law Katharine Curnen Mullen Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Mullen, Katharine Curnen (1945) "Varying Elements of Conspiracy Under Federal Law," St. John's Law Review: Vol. 20 : No. 1 , Article 5. Available at: https://scholarship.law.stjohns.edu/lawreview/vol20/iss1/5 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. NOTES AND COMMENTperiod of one to four years sorely needs an opportunity to refurbishhis rusty skills and should be assured that for one year he need notcompete in the labor market with those who may have become moreproficient in the course of these years. It is, however, significant tonote that due to an omission by the legislature to account for WorldWar I veterans, and their widows and dependents, these too can besupplanted by a veteran of World War II. Simple legislation canremedy such defect.SAUL STEPHAN DAVIS.VARYING ELEMENTS OF CONSPIRACY UNDER FEDERAL LAWTwo recent cases, in the Federal District Court for the Districtof New Jersey were prosecutions for conspiracy. One was for con-spiracy in restraint of trade,' the second for conspiracy to violate aregulation or order of the Emergency Price Control Act.2 In one,the court dealt with the question of reentry into a conspiracy, in theother, whether conspiracy is a crime apart from the Act sought tobe violated or a crime under such Act. Both cases show that con-spiracy is not a well defined crime, the essentials of which are uni-form, but rather one in which they vary somewhat with each charge.In United States v. National Wholesale Druggists' Associationo3the corporate defendant had participated in agreements for priceschedules which allegedly constituted a conspiracy in restraint oftrade. The corporation later filed a voluntary petition in bankruptcy.From December 8, 1938 until July 1, 1941, the corporation was inthe custody and control of the court, whose trustee was in exclusivepossession and management. During this time the corporate officersremained the same but under the control of the court. Throughoutthis period the purchase and sale of drug products were continuedat prices in accord with the schedules established under the agree-ment or alleged conspiracy. On July 1, 1941 the trusteeship wasterminated and the original officers of the defendant corporation werereinstated. The question was whether upon resumption of legalcontrol of the business and assets of the defendant corporation bythe same officers and agents, their compliance with the prices previ-ously established constituted a reentry into the conspiracy.'United States v. National Wholesale Druggists Association, 61 F. Supp.590 (D. C. N. J. 1945).2United States v. Schenley Distillers Corporation, 61 F. Supp. 601 (D. C.N. J. 1945).3United States v. National Wholesale Druggists Association, 61 F. Supp.590 (D. C. N. J. 1945), cited supra note 1. %1945 ]ST. JOHN'S LAW REVIEWThe court held that the defendant reentered a conspiracy, indi-cated that the trustee could not be held for conspiracy and passedthe question whether identity of officers would be necessary in everycase to constitute reentry into a conspiracy.Tracing and analyzing the conspiracy we can agree with thecourt on the question of the defendant's guilt but would hold thatthe court should also find the trustee a participant in the conspiracy,and that identity though not necessary to hold the defendant forconspiracy might be necessary if the charge were to be limited toreentry into a conspiracy.The conspiracy consisted of fixing a schedule of prices in viola-tion of the Sherman Anti-Trust Act. The plan contemplated wouldnaturally require each conspirator after adoption to adhere to theschedule. The conspiracy, therefore, had two aspects: forming theschedule, and continuing to maintain the schedule. This was a singlecontinuing conspiracy. "When the plot contemplates bringing topass a continuous result that will not continue without the continuouscooperation of the conspirators to keep it up, and there is such con-tinuous cooperation it is a perversion of natural thought and of nat-ural language to call such continuous cooperation a cinematographicseries of distinct conspiracies rather than to call it a single one." 4Thus, up until December 8, 1938, the defendant was engaged in a con-tinuing conspiracy.The next two periods of control, that of the trustee and laterthe defendant again, cause difficulty in tracing the conspiracy. Thecourt held that the trustee's action in adhering to the price schedulewas not a continuance of participation in the conspiracy theretoforeexisting, and that when the defendant resumed control its practicescould not be considered merely as a continuation of the practicesestablished by the trustee. It held these acts of the defendant to bethe result of deliberate choice and that adherence to the schedulesalready established was to be deemed a resumption of their originalattitude.It is true that each of the three periods of control were separateand distinct and that no act or intent of one group carried over toanother. It is also true that during the period of trusteeship therewas no legal capacity in the defendant to engage in the conspiracy.The defendant was then not in control, so the conspiracy, as to him,ended. What happened to the conspiracy in the interim, duringwhich time all the policies of the conspiracy were adhered to vol-untarily? It has been held that, "where numerous competitors fixedthe prices they agree to maintain and another competitor not a partyto the agreement originally adopts the schedule and makes his pricesagree to the last penny, as the petitioners did with the prices whichthe competitors fixed and charged, he cannot avoid responsibilityeven though he be less active in the first instance or because his sub-4 United States v. Kissel, 218 U. S. 601, 54 L. ed. 1168 (1910).[ VOL. 20NOTES AND COMMENTsequent action was without affirmative, express agreement on hispart to maintain the prices fixed by others." 5 The trustee had tomake a choice of adopting the price schedule in being or make adifferent one. He adopted the schedule the making of which con-stituted one aspect of the conspiracy. The adoption was tantamountto being present at the making of the schedule and by enforcing theagreement the trustee participated in the second aspect of theconspiracy.By like method the defendant, if the officers were not identicalon the second occasion, would be a participant in the conspiracy.It follows then that where a continuing conspiracy has beenfound, if one member withdraws and another as his successor con-tinues, the new member is chargeable as a conspirator and the sub-sequent renewal of activity by the member who previously withdrewconstitutes a reentry by him into the conspiracy.In this case it is to be noted that no mention of intent or overtact in furtherance of the conspiracy is made. At common law thecrime of conspiracy was complete when one had agreed with otherseither to do an unlawful act or a lawful act in an unlawful manner.However, many courts have repeatedly held that the crime of con-spiracy under the United States Code 6 was complete only when therewas an overt act by some member of the conspiracy which act wasin furtherance of the conspiracy and that the common law rule doesnot apply.7The Sherman Act itself provides that "every contract, com-bination .. .or conspiracy in restraint of trade" 8 violates the Act.In an indictment under the Sherman Act it is not necessary to allegein detail the evidence of the conspiracy and the conspiracy need notbe described with the same degree of particularity required in de-scribing a substantive offense. Nor is it necessary that an indict-ment under the Sherman Act allege overt acts in furtherance of theconspiracy charged. 9  This is one of the differences between con-spiracy as a separate crime and conspiracy as a violation of theSherman Act.In the Schenley Distillers Corporation 10 case, the corporationand others were indicted for conspiracy to commit offenses against5 Eugene Dietzgen and Co. v. Fed. Trade Commission, 142 F. (2d) 321(C. C. A. 7th, 1944); Minnisohn v. United States, 101 F. (2d) 477 (C. C. A.3d, 1939); United States v. Wilson, 23 F. (2d) 112 (N. D. W. Va. 1927).635 STAT. 1096 (1909), 18 U. S. C. A. 88 (1940).7 United States v. Goldstein, 135 F. (2d) 359 (C. C. A. 2d, 1943) ; Hamnerv. United States, 134 F. (2d) 592 (C. C. A. 5th, 1943); Smith v. UnitedStates, 92 F. (2d) 460 (C. C. A. 9th, 1937) ; Billingsley v. United States, 249Fed. 331 (C. C. A. 9th, 1918).826 STAT. 209, 210 (1890), 15 U. S. C. A. 1-7 (1890).9 Mercer v. United States, 61 F. (2d) 97 (C. C. A. 3d, 1932); UnitedStates v. Waltham Watch, 47 F. Supp. 524 (S. D. N. Y. 1942).10 United States v. Schenley Distillers Corporation, 61 F. Supp. 601 (D. C.N. J. 1945), cited supra note 2.1945 ]ST. JOHN'S LAW REVIEWthe United States. The F. and A. Distributing Company appliedfor leave to file a complaint in the Emergency Court of Appealsagainst the Administrator of the Office of Price Administration set-ting forth objections to the validity of the regulations as the Emer-gency Price Control Act provided. The court denied the applicationon the ground that the right to file a complaint was limited to thosewho had been involved in criminal proceedings for violation of theAct itself and does not include proceedings involving criminal con-spiracy even when the conspiracy was directed toward violation ofthe Emergency Price Control Act. The court held that this chargewas not a charge under the Act.Other cases have held also that a charge of conspiracy is acharge separate and apart from the provision toward which the con-spiracy was directed. In United States v. Rabinowich," a conspiracyto violate the Bankruptcy Act, the court held that the defendantcould not avail himself of the Statute of Limitations prescribed bythe Bankruptcy Act. In United States v. Hirsch 2 the defendantwas allowed to take advantage of the Statute of Limitations of con-spiracy and did not come under the longer period provided for underthe revenue laws which he conspired to violate. After this case therevenue laws were amended to provide that any offense arising underthe conspiracy statute should have a six-year period of limitation.In Braverman v. United States,18 a later case, and also an indictmentfor conspiring to violate the revenue laws, the court held that thecrime of conspiracy does not fall under the law violated; it constitutesa separate crime. Nevertheless, the period of limitation as set forthin the revenue laws was applied.It would appear that no reference to the law which is the objectof the conspiracy should be allowed other than whether the conspiracywas to violate that law. The punishment is governed by the crim-inal code; the same should apply to the Statute of Limitations. Fromthe standpoint of social welfare this departure from strict adherencemay be very valuable and when this is true, logical construction shouldnot supersede social welfare. However, strict construction should notbe the rule only when it favors the prosecution.In the Schenley case the defendant would find it exceedinglydifficult to determine whether he was doing an unlawful act. Theframers of the Emergency Price Control Act evidently had somedoubts about its validity when they inserted the clause providing fora challenge. The court has not allowed the defendant to take ad-vantage of that clause. To test its constitutional validity independentof that provision, the defendant would have to show that he was in-jured by the operation of the statute.14 Again he would be met with"United States v. Rabinowich, 238 U. S. 78, 59 L. ed. 1211 (1915).12 United States v. Hirsch, 100 U. S. 33, 25 L. ed. 539 (1879).13 Braverman v. United States, 317 U. S. 49, 87 L. ed. 23 (1942).1 4 Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 80 L. ed. 688(1936).[ VOL.. 20NOTES AND COMMENTthe obstacle that he was not accused under the statute of the PriceControl Act. Here is a vicious circle. A law which might beflagrantly unconstitutional could be in effect indefinitely withoutchallenge.Our law of conspiracy needs clarification, not to permit offendersto avoid entrapment, but to allow each alleged transgressor to knowdefinitely that he will not be convicted for doing a lawful act in alawful manner and to prevent the exceptions from becoming sonumerous that they-completely overwhelm the original Section 37 ofthe Criminal Code.KATHARINE CURNEN MULLEN.COMPETENCY OF CHILDREN AS WITNESSES; SIGNIFICANCE OFOATHS TO CHILDRENIn New York, no unsworn testimony is admissible on the trialof either a civil or a criminal case, except in one instance. The ex-ception is to be found in Section 392 of the Code of CriminalProcedure: 'The rules of evidence in civil cases are applicable also to criminal casesexcept as otherwise provided in this code. Whenever in any criminal pro-ceedings a child actually or apparently under the age of twelve offered as awitness does not in the opinion of the court or magistrate understand thenature of an oath, the evidence of such child may be received though not givenunder oath if, in the opinion of the court or magistrate, such child is possessedof sufficient intelligence to justify the reception of the evidence. But noperson shall be held or convicted of an offense upon such testimony unsupportedby other evidence.The unsworn testimony of an infant is inadmissible in a civilaction 2 (unless waived by both parties), and that leads to our firstquery, "At what age is an infant competent to testify under oath?"Whereas, in a criminal jurisdiction, if a witness is over twelve, thelaw presumes capacity; in civil jurisdiction there is no definite ruleas to the age at which an infant is competent to testify under oath.The test is an individual one. In one case, it was held no error toadmit sworn testimony of a boy five years old; this on the groundof the capacity and intelligence of the child, his appreciation of thedifference between truth and falsehood, as well as his duty to tellthe truth.3 A witness, six and a half years old, who knew she would1 As amended by Chapter 279 of the Laws of 1892.2 Gehl v. Bachmann-Bechtel Brewing Co., 156 App. Div. 51, 141 N. Y.Supp. 133 (1913); Arico v. New York Central 1. R., 240 App. Div. 721, 265N. Y. Supp. 503 (1933).3 Wheeler v. United States, 159 U. S. 523, 40 L. ed. 244 (1895).1945]

Varying Elements of Conspiracy Under Federal Law

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Varying Elements of Conspiracy Under Federal Law

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