United States v. William Abraham

WILLIAM J. CAMPBELL, Senior District Judge

(dissenting).

The “simple one count indictment” in this case charged a conspiracy of seven defendants and others to extort money from tavera owners over a period of approximately ten years. The evidence showed that the monthly pay-off or “package” was divided only among members of the 19th district vice squad, and that the government’s principal witness, Thomas, was assigned to that unit from February 1964 through October 1965 and from June 1966 through November 1970. Although each of the seven defendants served as a member of the vice squad during the conspiracy period alleged in the indictment, none served more than three continuous years. From May 1965 through February 1968, it appears that none of the defendants was assigned to the unit, and with the exception of one nine month period' when four defendants * served simultaneously, no more than three participated as members of the vice squad at the same time. Appellants Abraham and Henkin served from February 1964 through February and April 1965, respectively, and did not return to the unit until sometime after Thomas’ departure in November 1970. Appellant Mulligan did not arrive on the scene until early 1968. He was transferred eighteen months later, several years before the conspiracy allegedly terminated. Seventeen tavern owners testified that payoffs were made to various defendants, over continuous periods of time which, with one exception, did not exceed four years in duration. Two of the alleged co-conspirators were found not guilty; the jury failed to reach a verdict with respect to two others.

I quite agree that the evidence does not show, as a matter of law, the existence of two or more conspiracies. Accordingly, I agree that appellants’ convictions should not be set aside on that ground. But surely there exists a fact question regarding whether there was one conspiracy or several, and where such a question exists United *1243 States v. Varelli, 407 F.2d 735 (7th Cir. 1969) does not simply “encourage” the giving of a multiple conspiracy instruction (as the majority opinion suggests); such an instruction is required:

“Since the existence of multiple conspiracies is really a fact question as to the nature of the agreement, it is for the jury to decide whether there is one agreement or several. United States v. Crosby, 294 F.2d 928 (2d Cir. 1961); Green v. United States, 332 F.2d 788, 789 (5th Cir. 1964); United States v. American Honda Motor Company, 273 F.Supp. 810 (N.D.Ill.1967). Therefore the district judge should not under F.R. of Crim.P. 14 grant a severance . . . but, when the possibility of a variance appears, should instruct the jury on multiple conspiracies as well.” 407 F.2d at 746 (emphasis added).

The majority’s observation that the multiple conspiracy instruction might confuse the jury, since they had before them a “simple one count [conspiracy] indictment,” is quite beside the point. No doubt, an additional instruction undermining the government’s theory of the case would have complicated things a bit, but that is hardly an appropriate basis for denying the defendants an instruction to which they are entitled. After all, it was defendants’ theory that the idea of an on-going ten year conspiracy was a little too simple.

In my view, the law of this Circuit was established in Varelli. Where the “possibility of variance appears,” it is “for the jury to decide whether there is one agreement or several.” In order that this decision may be made intelligently, the jury should be instructed respecting multiple conspiracies. The other instructions outlining the crime of conspiracy in this case did not satisfy this requirement.

The jury found one of the four not guilty and failed to reach a verdict as to two others.