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Opinion of the Court. 317 U. S.

ployed by the Commission, in a trial of offenses against the law of war and the 81st and 82nd Articles of War, by a military commission appointed by the President.

Accordingly, we conclude that Charge I, on which petitioners were detained for trial by the Military Commission, alleged an offense which the President is authorized to order tried by military commission; that his Order convening the Commission was a lawful order and that the Commission was lawfully constituted; that the petitioners were held in lawful custody and did not show cause for their discharge. It follows that the orders of the District Court should be affirmed, and that leave to file petitions for habeas corpus in this Court should be denied.

Mr. Justice Murphy took no part in the consideration or decision of these cases.

CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1942.

BRAVERMAN v. UNITED STATES.*

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 43. Argued October 21, 1942.—Decided November 9, 1942.

1. A conviction upon several counts of an indictment, each charging conspiracy to violate a different penal provision of the Internal Revenue laws, where the jury's verdict is supported by evidence of but a single conspiracy to commit those offenses, will not sustain a sentence of more than two years' imprisonment, the maximum penalty for a single violation of the conspiracy statute. P. 52.

2. The limitation applicable to a prosecution for violation of § 37 of the Criminal Code, where the object of the conspiracy is to evade or defeat the payment of a federal tax, is not the three-year period applicable generally to criminal offenses, but the six-year period specifically prescribed by § 3748 (a) of the Internal Revenue Code. P. 54.

3. A contention of the petitioner that his plea of former jeopardy should have been sustained is not passed upon here, since the earlier indictment to which he pleaded guilty, and which he argues charged the same offense as that of which he was convicted in this case, is not a part of the record. P. 55.

125 F. 2d 283, reversed.

•Together with No. 44, Wainer v. United States, also on writ of certiorari, 316 U. S. 653, to the Circuit Court of Appeals for the Sixth Circuit.

503873—43 XI 49

Opinion of the Court. 317 U. S.

Certiorari, 316 U. S. 653, to review the affirmance of sentences upon convictions of conspiracy.

Mr. James J. Magner for petitioner in No. 43. Mr. John E. Dougherty for petitioner in No. 44.

Mr. W. Marvin Smith, with whom Solicitor General Fahy was on the brief, for the United States.

Mr. Chief Justice Stone delivered the opinion of the Court.

The questions for decision are: (1) Whether a conviction upon the several counts of an indictment, each charging conspiracy to violate a different provision of the Internal Revenue laws, where the jury's verdict is supported by evidence of but a single conspiracy, will sustain a sentence of more than two years' imprisonment, the maximum penalty for a single violation of the conspiracy statute, and (2) whether the six-year period of limitation prescribed by § 3748 (a) of the Internal Revenue Code is applicable to offenses arising under § 37 of the Criminal Code, 18 U. S. C. 88 (the conspiracy statute), where the object of the conspiracy is to evade or defeat the payment of a federal tax.

Petitioners were indicted, with others, on seven counts, each charging a conspiracy to violate a separate and distinct internal revenue law of the United States.1 On the trial there was evidence from which the jury could have found that, for a considerable period of time, petitioners, with others, collaborated in the illicit manufacture, trans

1The seven counts respectively charged them with conspiracy, in violation of § 37 of the Criminal Code, unlawfully (1) to carry on the business of wholesale and retail liquor dealers without having the special occupational tax stamps required by statute, 26 U. S. C. § 3253; (2) to possess distilled spirits, the immediate containers of which did not have stamps affixed denoting the quantity of the distilled spirita which they contained and evidencing payment of all Internal Revenue taxes imposed on such spirits, 26 U. S. C. § 2803; (3) to transport quantities of distilled spirits, the immediate containers of which did not have affixed the required stamps, 26 U. S. C. § 2803; (4) to carry on the business of distillers without having given bond as required by law, 26 U. S. C. § 2833; (5) to remove, deposit and conceal distilled spirits in respect whereof a tax is imposed by law, with intent to defraud the United States of such tax, 26 U. S. C. § 3321; (6) to possess unregistered stills and distilling apparatus, 26 U. S. C. § 2810; and (7) to make and ferment mash, fit for distillation, on unauthorized premises, 26 U. 8. C. § 2834.

49 Opinion of the Court.

portation, and distribution of distilled spirits, involving the violations of statute mentioned in the several counts of the indictment. At the close of the trial, petitioners renewed a motion which they had made at its beginning to require the Government to elect one of the seven counts of the indictment upon which to proceed, contending that the proof could not and did not establish more than one agreement. In response the Government's attorney took the position that the seven counts of the indictment charged as distinct offenses the several illegal objects of one continuing conspiracy, that if the jury found such a conspiracy it might find the defendants guilty of as many offenses as it had illegal objects, and that for each such offense the two-year statutory penalty could be imposed. The trial judge submitted the case to the jury on that theory. The jury returned a general verdict finding petitioners "guilty as charged," and the court sentenced each to eight years' imprisonment. On appeal the Court of Appeals for the Sixth Circuit affirmed, 125 F. 2d 283, on the authority of its earlier decisions in Fleisher v. United States, 91 F. 2d 404 and Meyers v. United States, 94 F. 2d 433. It found that "From the evidence may be readily deduced a common design of appellants and others, followed by concerted action," to commit the several unlawful acts specified in the several counts of the indictment. It concluded that the fact that the conspiracy was "a general one to violate all laws repressive of its consumma

Opinion of the Court. 317 U. S.

tion does not gainsay the separate identity of each of the several conspiracies." We granted certiorari, 316 U. S. 653, to resolve an asserted conflict of decisions.2 The Government, in its argument here, submitted the case for our decision with the suggestion that the decision below is erroneous.

Both courts below recognized that a single agreement to commit an offense does not become several conspiracies because it continues over a period of time, see United States v. Kissel, 218 U. S. 601,607; cf. In re Snow, 120 U. S. 274, 281-3, and that there may be such a single continuing agreement to commit several offenses. But they thought that, in the latter case, each contemplated offense renders the agreement punishable as a separate conspiracy.

The question whether a single agreement to commit acts in violation of several penal statutes is to be punished as one or several conspiracies is raised on the present record, not by the construction of the indictment, but by the Government's concession at the trial and here, reflected in the charge to the jury, that only a single agreement to commit the offenses alleged was proven. Where each of the counts of an indictment alleges a conspiracy to violate a different penal statute, it may be proper to conclude, in the absence of a bill of exceptions bringing up the evidence, that several conspiracies are charged rather than one, and that the conviction is for each. See Fleisher v. United States, supra; Shultz v. Hudspeth, 123 F. 2d 729, 730. But it is a different matter to hold, as the court below appears to have done in this case and in Meyers v.

2 Compare the decision below and those in Beddow v. United States, 70 F. 2d 674, 676 (C. C. A. 8th); Yenkichi Ito v. United States, 64 F. 2d 73,77 (C. C. A. 9th); and Olmstead v. United States, 19 F. 2d 842, 847 (C. C. A. 9th), with those in United States v. Mazzochi, 75 F. 2d 497,498 (C. C. A. 2nd); Short v. United States, 91 F. 2d 614, 622 (C. C. A. 4th); Powe v. United States, 11 F. 2d 598, 599 (C. C. A. 5th); and United States v. Anderson, 101 F. 2d 325, 333 (C. C. A. 7th).

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