UNITED STATES v. STAMATOPOULOS et al. (three cases); UNITED STATES v. VARNAVELIAS et al.

UNITED STATES v. STAMATOPOULOS et al. (three cases). UNITED STATES v. VARNAVELIAS et al. (Circuit Court, E. D. New York. May 6, 1908.) Nos. 746, 756, 766, 767. 1. Conspiracy (§ 43) — Customs Duties — Criminal Law — Sufficiency of Indictment. An indictment under section 5440, Rev. St. (U. S. Comp. St. 1901, p. 8676), for conspiracy to defraud the United States by means of a false invoice, is sufficient which sets forth such a conspiracy, notwithstanding that it does not set forth the consummation of the fraud nor include an allegation that the fraud could have been accomplished, if not detected. [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 97; Dec. Dig. § 43.] 2. Consmbacy (§ 48) — Indictment—Scmtctkncy—Particularity op Allegation. An Indictment for conspiracy to defraud the United States by a false invoice is not vitiated by the particularity with which the overt act is set forth, if the conspiracy of itself be sufficient. [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 97; Dec. Dig. § 43.] On Demurrer to Indictments for Criminal Conspiracy. The defendants in these cases are “Stephen” D. Stamatopoulos (name Stephen fictitious), Simon G. Mescall, Patros Varnavelias, Pant Vulgaris, Simon J. Mescall, and Stamatis D. Stamatopoulos. William J. Youngs, U. S. Atty. Eugene E. O’Connor, Jr. (Deo Oppenheimer, of counsel), for defendant Mescall. Charles W. Gould, for defendant Stamatopoulos. For otter oases see same topic & § number in Dee. & Am. Digs. 1907 to date, & Rep’r Indexes For other caeos see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indoxes [MAJORITY — CHATFIERD, District Judge.] CHATFIERD, District Judge. These indictments are similar in their allegations and are brought to charge an offense within the provisions of section 5440, Rev. St. (U. S. Comp. St. 1901, p. 3676). In general, the charge set forth in each indictment is a conspiracy to defraud the United States by returning false weights to the officers of the customs service upon certain importations of cheese, which the indictments allege were to be imported into the United States and entered by means of a false invoice, and with the statement of a smaller quantity or weight of cheese in the entry blank than the actual weight of the importation. The indictments further set forth that the false weight to be returned by the weigher, who is one of the defendants named in the indictment, was the weight upon which the amount of duty would be finally estimated, and that it was planned and intended to defraud the United States of a part of the revenue; i. e., the differ-ence. Each indictment then proceeds to recite an overt act in the form of a specific statement of an importation entry and return of a weight less than the true amount. A demurrer has been interposed to each of these indictments, and a number of grounds of demurrer have been set forth; but it is considered that none of these grounds of objection is sufficient. The indictments set forth a conspiracy to defraud the United States, and it is unnecessary to allege either the consummation of the fraud or to include an allegation that the fraud could have been accomplished unless detected. It is sufficient to show that the conspiracy was to do an act which would constitute a fraud upon the United States. The further objection raised by the demurrers that the conspiracy alleged is a conspiracy to commit the overt act is not well founded. Briefly stated, this objection is that the overt act is stated with particularity enough to constitute a fraud upon the revenue of the United States and to define an offense against certain of the Revised Statutes, and the charge of conspiracy is a mere general allegation of a plan to commit the overt act. A reading of the indictment does not. show this to be so. The conspiracy charged is a plan to defraud, not to commit an offense; and the particularity with which the overt act is set forth cannot vitiate the indictment, if the conspiracy of itself he sufficient. The demurrers will be overruled.