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UNITED STATES v. WESTBROOK

August 7, 1953

UNITED STATES
v.
WESTBROOK ET AL.



The opinion of the court was delivered by: Lemley, Chief Judge.

  This cause comes on for hearing upon the motion of the defendants to dismiss counts one and two of the indictment returned against them by the Grand Jury and alternatively for an order striking certain paragraphs of said count one; the motion has been submitted upon written briefs.

The indictment purports to charge the defendants with conspiring to "embezzle, abstract, purloin and wilfully misapply moneys, funds and credits" of the Bank of Dierks, Arkansas, and to make false entries in the books, reports and statements of said bank with intent to deceive the Federal Deposit Insurance Corporation, and with having committed various overt acts in furtherance of said conspiracy,*fn1 and further purports to charge them with having made a certain false entry in the "Daily Statement Ledger" of said bank,*fn2 and with having embezzled, abstracted, purloined and wilfully misapplied certain "moneys, funds and credits of said insured bank, to-wit, $1400.00", and with having aided and abetted therein.*fn3 The defendants are described as having been agents and employees of said bank at the times referred to in the indictment.

As originally returned by the Grand Jury, the indictment consisted of eleven counts; the first of these counts was the conspiracy count; Counts two through ten were false entry counts, and count eleven was the embezzlement count. After the indictment was filed, the defendants appeared before the Court for arraignment, at which time the Government on its own motion dismissed counts three to ten, both inclusive, leaving only counts one, two, and eleven. Thereupon, the defendants prior to pleading to the remaining counts filed the pending motion; as indicated, said motion is directed at counts one and two only; count eleven is not challenged, but the defendants have not as yet been arraigned upon it.

Before taking up the contentions of the parties, we will analyze in some detail the two counts of the indictment which are under attack, and for clarity refer to some extent to the contents of counts three through ten which have been dismissed:

The first count charges that "during the month of August, 1952, and prior thereto", the defendants, being agents and employees of the Bank of Dierks at Dierks, Arkansas, the deposits in which were insured by the FDIC, "did conspire to embezzle, abstract, purloin and wilfully misapply moneys, funds and credits of said bank and to make false entries in the books, reports and statements of said bank with intent to deceive the Federal Deposit Insurance Corporation". It is further charged that "in furtherance of said conspiracy" certain overt acts were committed, to-wit: (1) that the defendant, Opal Henrietta Simmington, made the false entries described in counts two through ten of the indictment, which "descriptions are incorporated by reference into this Count"; (2) that both defendants "talked to Alonzo Canaday about reimbursing the said Bank of Dierks for a money shortage existing"; (3) that both defendants "talked to Ray Waters about reimbursing the said Bank of Dierks for a money shortage existing"; (4) that the defendant, Westbrook, refused "to send bank statements regularly to depositors in the Bank of Dierks"; and (5) that the defendant, Opal Henrietta Simmington, "gave to W.L. Peek her personal check for $1400.00".

The second count of the indictment consists of three numbered paragraphs, in the first of which the defendants are described as being agents and employees of the Bank, and in which it is alleged that they did, "with intent to deceive the Federal Deposit Insurance Corporation, make and cause to be made the false entry described in paragraph 3 of this count in the records of said Bank". Paragraph 2 of this count gives the date upon which the alleged false entry was made, which date is August 13, 1952. Paragraph 3 reads as follows: "The false entry referred to in paragraph 1 of this count was made by entering the figures `417 817 64' in the Daily Statement Ledger of said Bank on the page and in the column bearing the handwritten date `Aug. 13 '52', being on the 30th line of this page and directly opposite the handwritten word `Deposits'."

Counts three through ten are similar to count two in that each is a false entry count and each purports to charge the defendants with making a false entry; said counts differ from count two with respect to dates, the amounts of money involved, and the particular books are records alleged to have been falsified; but resemble count two in that each consists of three numbered paragraphs, the second of which purports to give the date upon which the alleged false entry was made, and the third of which purports to describe the particular false entry involved. It was obviously the purpose of the draftsman of the indictment to incorporate by reference in the first paragraph of each of counts three through ten the allegations of the first paragraph of count two of the indictment; but through error the first paragraph of each of these counts was made to read: "The allegations of paragraph 1 of Count 1 are re-alleged." (Emphasis added.) As stated, Count one of the indictment is the conspiracy count, and this error of draftsmanship necessarily prevented counts three through ten from stating any offenses; it was for this reason that said counts were dismissed.

The eleventh count of the indictment charges that on or about November 26, 1951, the defendants, "being agents and employees of the Bank of Dierks, Dierks, Arkansas, the deposits of which were at the time insured in the Federal Deposit Insurance Corporation, did embezzle, abstract, purloin and wilfully misapply certain moneys, funds and credits of said insured bank, to-wit, $1400.00, and did aid and abet therein".

As to the proposition that the first count of the indictment does not limit the allegation of the conspiracy to a three-year period, it is sufficient to say that the crime of conspiracy is a continuing offense, and that it is not necessary to limit it to the three-year period preceding the return of the indictment. Pinkerton v. U.S., 5 Cir., 145 F.2d 252; see also U.S. v. Johnson, 7 Cir., 123 F.2d 111, 123. It will, of course, be necessary at the trial of the case for the Government to prove at least one overt act committed within the three-year limitation period. Pinkerton v. U.S., supra.

In taking up the contentions that the first count is fatally defective in not differentiating between "moneys", "funds" and "credits" of the bank and in failing to set out the tenor of the alleged false entries, which we find it convenient to consider together, it should be pointed out that the gist of the crime of conspiracy is the unlawful agreement and that where a conspiracy is alleged it is not necessary to set out the criminal object of the conspiracy with as great certainty as is required in cases where such object is charged as a substantive offense.

In Wong Tai v. U.S., 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545, this rule is stated as follows: "* * * It is well settled that in an indictment for conspiring to commit an offense — in which the conspiracy is the gist of the crime — it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy, Williamson v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 52 L.Ed. 278, or to state such object with the detail which would be required in an indictment for committing the substantive offense, Thornton v. United States, 271 U.S. 414, 423, 46 S.Ct. 585, 70 L.Ed. 1013; Jelke v. United States, 7 Cir., 255 F. 264, 275; Anderson v. United States, 8 Cir., 260 F. 557, 558; Wolf v. United States, 7 Cir., 283 F. 885, 886; Goldberg v. United States, 8 Cir., 277 F. 211, 213. In charging such a conspiracy `certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is' necessary. Williamson v. United States, supra [207 U.S.] 447, 28 S.Ct. 171; Goldberg v. United States, supra [277 F.] 213. * * *"

Williamson v. U.S., supra, involved a conspiracy to suborn perjury; it was alleged that the conspirators agreed to suborn numerous persons to make false oaths before a United States Commissioner in the judicial district of Oregon whereby they could fraudulently obtain title to certain public lands for the use and benefit of the alleged conspirators. The contention was made that the indictment was fatally defective because "of an omission to directly particularize various elements, claimed to be essential to constitute the offense of perjury, and other elements necessary to be averred in respect of the alleged suborners". 207 U.S. at page 447, 28 S.Ct. at page 171. In rejecting this contention the Court said:

"This is based upon the assumption that an indictment alleging a conspiracy to suborn perjury must describe not only the conspiracy relied upon, but also must, with technical precision, state all the elements essential to the commission of the crimes of subornation of perjury and perjury, which, it is alleged, is not done in the indictment under consideration. But in a charge of conspiracy the conspiracy is the gist of the crime, and certainty, to a common intent, sufficient to identify the offense which the defendants ...


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