« ForrigeFortsett »
49 Opinion of the Court.
United States, supra, that even though a single agreement is entered into, the conspirators are guilty of as many offenses as the agreement has criminal objects.
The gist of the crime of conspiracy as defined by the statute is the agreement or confederation of the conspirators to commit one or more unlawful acts "where one or more of such parties do any act to effect the object of the conspiracy." The overt act, without proof of which a charge of conspiracy cannot be submitted to the jury, may be that of only a single one of the conspirators and need not be itself a crime. Bannon v. United States, 156 U. S. 464, 468-9; Joplin Mercantile Co. v. United States, 236 U. S. 531, 535, 536; United States v. Rabinowich, 238 U. S. 78, 86; Pierce v. United States, 252 U. S. 239, 244. But it is unimportant, for present purposes, whether we regard the overt act as a part of the crime which the statute defines and makes punishable, see Hyde v. United States, 225 U. S. 347, 357-9, or as something apart from it, either an indispensable mode of corroborating the existence of the conspiracy or a device for affording a locus poenitentiae, see United States v. Britton, 108 U. S. 193, 204, 205; Dealy v. United States, 152 U. S. 539, 543, 547; Bannon v. United States, supra, 469; Hyde v. Shine, 199 U. S. 62, 76; Hyde v. United States, supra, 388; Joplin Mercantile Co. v. United States, supra.
For when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.
Opinion of the Court. 317 U. S.
The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for "The conspiracy is the crime, and that is one, however diverse its objects." Frohwerk v. United States, 249 U. S. 204, 210; Ford v. United States, 273 U. S. 593,602; United States v. Manton, 107 F. 2d 834, 838. A conspiracy is not the commission of the crime which it contemplates, and neither violates nor "arises under" the statute whose violation is its object. United States v. Rabinowich, supra, 87-9; United States v. McElvain, 272 U. S. 633, 638; see United States v. Hirsch, 100 U. S. 33, 34, 35. Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it differs from successive acts which violate a single penal statute and from a single act which violates two statutes. See Blockburger v. United States, 284 U. S. 299, 301-4; Albrecht v. United States, 273 U. S. 1, 11-12. The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute, § 37 of the Criminal Code. For such a violation, only the single penalty prescribed by the statute can be imposed.
Petitioner Wainer contends that his prosecution was barred by the three-year statute of limitations, 18 U. S. C. § 582, since he withdrew from the conspiracy more than three, although not more than six, years before his indictment. This Court, in United States v. McElvain, 272 U. S. 633, 638, and United States v. Scharton, 285 U. S. 518, held that the three-year statute of limitations applicable generally to criminal offenses barred prosecution for a conspiracy to violate the Revenue Acts, since it was not within the exception created by the Act of November 17, 1921, 42 Stat. 220, now §3748 (a) (1) of the Internal Revenue Code, which provided a six-year statute of limitations "for offenses involving the defrauding or attempting to defraud the United States or any agency thereof,
49 Opinion of the Court.
whether by conspiracy or not." To overcome the effect of these decisions, that Act was amended, Revenue Act of 1932, 47 Stat. 169, 288, by the addition of a second exception, which provided a six-year statute of limitations "for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof," and by the addition of a new paragraph, reading as follows:
"For offenses arising under section 37 of the Criminal Code, where the object of the conspiracy is to attempt in any manner to evade or defeat any tax or the payment thereof, the period of limitation shall also be six years."
To be within this last paragraph it is not necessary that the conspiracy have as its object the commission of an offense in which defrauding or attempting to defraud the United States is an element. It is enough that the conspiracy involves an attempt to evade or defeat the payment of federal taxes, which was among the objects of the conspiracy of which petitioner was convicted. Enlargement, to six years, of the time for prosecution of such conspiracies was the expressed purpose of the amendment. See H. R. Rep. No. 1492,72d Cong., 1st Sess., 29.
We do not pass upon petitioner Wainer's argument that his plea of former jeopardy should have been sustained, since the earlier indictment to which he pleaded guilty and which he insists charged the same offense as that of which he has now been convicted, is not a part of the record.
The judgment of conviction will be reversed and the cause remanded to the District Court, where the petitioners will be resentenced in conformity to this opinion.
Opinion of the Court. 317 U. S.
UNITED STATES v. CALLAHAN WALKER
CERTIORARI TO THE COURT OF CLAIMS.
Under the Government construction contract here involved, an "equitable adjustment" for the extra work performed by the contractor required merely the ascertainment of the cost of digging, moving, and placing earth, and of a reasonable allowance for profit. These were questions of fact; and, if they were erroneously determined by the contracting officer, the contractor's remedy was by appeal to the head of the department concerned, as provided by Article 15 of the contract. P. 61.
95 Ct. Qs. 314, reversed.
Certiorari, 316 U. S. 656, to review a judgment against the United States in a suit by a contractor upon a construction contract.
Mr. Richard S. Salant, with whom Solicitor General Fahy, Assistant Attorney General Shea, and Mr. Oscar H. Davis were on the brief, for the United States.
Mr. Robert A. Littleton for respondent.
Mr. Justice Roberts delivered the opinion of the Court.
This case involves the meaning and application of the terms of a standard form of Government construction contract.
The findings of the Court of Claims may be summarized. In 1931 the War Department asked bids for the construction of a levee on the east side of the Mississippi River. The respondent bid 14.430 a cubic yard on a section of the work involving approximately 3,881,600 cubic yards of earthwork. A paragraph of the specifications reserved the right to make such changes in the work contemplated as might be necessary or expedient to carry out the intent
56 Opinion of the Court.
of the contract or to meet unanticipated conditions, but added that no such modification would be the basis for a claim for extra compensation except as provided in the regular form of contract to be entered into between the parties.
The respondent began construction at the south end of the project and proceeded northward. The length of the proposed levee was divided by stations one hundred feet apart and numbered from north to south. Sixtyeight per cent, of the construction between Station 5123 and Station 5113 had been completed when portions of the levee already constructed south of Station 5123 were found to have a tendency to subside. For this reason the Government contracting officer, on October 7, 1932, ordered the work stopped between the two stations while he sought to determine the cause of the subsidence. He concluded that the placing of an enlarged false berm, not called for in the original specifications, would prevent subsidence in the sector between the two stations. On October 18th he gave respondent a written order to construct such a berm; the order stated that respondent would be given one hundred per cent, credit for the earth placed south of Station 5123 where the subsidence had occurred, and that payment for additional yardage required by the false berm would be made at the contract price per cubic yard. The additional yardage involved was about 64,000 cubic yards. The work covered by the change order was necessary for the completion of the project. The order was issued against the respondent's protest that an extra price should be allowed as the additional work would cost the respondent more than 14.43tf per cubic yard, and that the order was not within the terms of the contract. The respondent asserted it would later present a claim for extra cost occasioned it by the additional work.
Article 3 of the standard form of construction contract signed by the parties provides: