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BROWN V. ELLIOTT, UNITED STATES MAR

SHAL IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA, et al. MOORE v. ELLIOTT, UNITED STATES MARSHAL IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF CALIFORNIA.

Nos. 201, 202. Argued October 19, 1911. Reargued May 1, 1912.-De

cided June 10, 1912.

If the indictment under $ 5440, Rev. Stat., sufficiently charges the

commission of overt acts within the district, it is sufficient even

if it states that the place where the conspiracy formed is unknown. The Sixth Amendment to the Constitution does not preclude the

place of trial of conspirators indicted under $5440, Rev. Stat., being in any State where an .overt act was performed. Hyde v. United

States, ante, p. 347. A conspiracy entered into in violation of $ 5440, Rev. Stat., may

be a continuous crime, and, if it was designed to be, and was, continuous, every overt act was the act of all the conspirators by reason

of the terms of their unlawful plot. Where there are successive overt acts during the existence of the con

spiracy, the period of limitation must be computed from the data of the last of them properly specified in the indictment, although some of them may have occurred more than three years before the

indictment was found. The Constitution of the United States is not intended as a facility

for crime, but to prevent oppression; its letter and its spirit are satisfied if where a criminal purpose is executed that criminal purpose be punished. The criminal himself makes the venue of his trial.

The facts, which involve the validity of an indictment under $ 5440 Rev. Stat., are stated in the opinion.

Mr. Henry F. Woodard and Mr. A. A. Birney for appellants.

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MR. JUSTICE McKenna delivered the opinion of the court.

These appeals involve the action of the Circuit Court in dismissing petitions for writs of habeas corpus to discharge appellants from the custody of appellee, United States Marshal for the Northern District of California. Both appellants were held under a warrant of removal made by the District Court of that district upon an order of commitment made by a United States commissioner in proceedings for the removal of appellants to the District Court of Nebraska.

There was an indictment found against appellants in the District Court of the Omaha Division of the District of Nebraska for the crime of conspiracy, in which it was charged that they and others whose names, aliases and the numbers by which they were designated as part of the means of effecting the scheme, and who in the indictment are called “conspirators,” “on the fifth day of April, in the year of our Lord one thousand nine hundred and seven, did then and there” conspire with Ernest Fenby and other persons to the grand jurors unknown “to commit the acts made offenses and crimes by $ 5480 of the Revised Statutes of the United States, as amended by an Act of Congress enacted March 2, 1889 (25 Stat. 873, c. 393) entitled ' An Act to punish dealers and pretended dealers in counterfeit money and other fraudulent devices for using the United States mails.”” And it is charged that appellants and the other persons conspired in devising and intending to devise a scheme and artifice to defraud various persons' out of their money and property, to be effected by means of the post-office establishment of the United States, and particularly to defraud certain persons who were named. To avoid repetition, they are called in

Opinion of the Court.

225 U. S.

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the indictment “victims," and they were to be defrauded of their money and property by the conspirators "agreeing to organize, institute, conduct and manage certain horse races and athletic contests

as wagering contests upon which money should be bet,” at Council Bluffs, in Iowa, and in certain places in Missouri, Arkansas, Colorado, Louisiana and Washington, and other places to the grand jurors unknown, and "at Omaha, district aforesaid.” The races and contests were to be conducted in a fraudulent, unfair and dishonest manner and to be controlled solely by the conspirators so that the outcome was known in advance, with intention thereby to defraud the victims. The charge is made with much circumstance and detail which it is not necessary to repeat except to say that the conspirators were to be represented as millionaires traveling through the United States making investments in municipal, county and city bonds, and in other projects, and having with them horses and athletes for their private amusement which they would match with those of strangers. One of the conspirators was to be represented to be the secretary to the others and as having charge of the contests which he had theretofore always managed with great financial profit and gain as well as to the amusement of his employers, but that he had become aggrieved at the treatment he had received and would so manage the contests that the horses and athletes of the millionaires would lose, and that he was desirous of betting against them and thereby win their money for himself and for such other persons as would bet for him as his secret agents. Others of the conspirators were to represent themselves to the victims to be friends and relatives of the "secretary” and had been requested by him to procure men of financial standing to act as his secret agents in betting money against his employers, the millionaires, and it was to be represented that it was necessary for him to procure such persons of financial standing and respon

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sibility to represent him and bet his money in order to conceal his disloyalty to his employers. Such persons were not to bet their own money but the secretary's money, and be paid a percentage of the winnings. The victims were to be induced to bring letters of credit or negotiable paper for large sums of money and thereby establish credit in the bank of the town where the races and contests were to be conducted. And when they, relying on the fraudulent representations of the secretary, should bet and wager money furnished by him they were to be informed that the money was not in fact his but was his employers' money; that they, the employers, had or might become suspicious that the money was not that of the victims and the secretary not the stakeholder, and to prevent criminal prosecutions the races and contests would be called off; that therefore it would be necessary for the victims to come to his (the secretary's) rescue and bet their money for him and allay such suspicions and to insure the races and contests proceeding to a finish as arranged, the money to be returned after the races and contests. And it was to be represented that the races and contests terminated unfortunately through an unusual and deplorable accident, to wit, a serious injury to one of the jockeys or one of the athletes and in such way that it would be unfair to declare themselves winners, and additional races and contests were to be conducted in the same manner and an opportunity afforded to win back the money lost. Finally it was to be represented to the victims that they had been engaged in a criminal transaction, which had resulted in a serious injury to a person, and to avoid arrest and criminal prosecution they (the victims) were to depart from the scene, and leave the money bet with the secretary, who was to convert it to the use and gain of the conspirators. And this was alleged to be fraudulent and done with intention to deceive, etc.

The manner of carrying out the scheme was alleged

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to be to rent a United States post-office box for the delivery of the mail in the United States post-office at Omaha, Nebraska, and in other cities throughout the United States where any of the conspirators should establish headquarters in furtherance of the scheme and artifice to defraud, and the conspirators were to assume and request to be addressed by the number of such boxes respectively and carry on their correspondence with each other through and by means of the post-office establishment of the United States by the use of such assumed title numbers without the use of their own proper names, and to assume other names and request their victims to address them by such assumed names through and by means of the post-office establishment of the United States. And it is charged that the conspirators, in further execution of their scheme, were to take and receive letters so addressed from and out of the United States post-office at Omaha and other places which were mentioned and that they were to write and send letters to one another by means of the post-office establishment which were to contain and set forth their fraudulent and deceitful schemes and were to be shown to the other victims for the purpose of inducing the latter to turn over to the conspirators large sums of money. The conspirators, it is charged, also used the post-office establishment to open correspondence with the victims and to procure them to open correspondence with two of the conspirators, whose names are given, in pursuance of the conspiracy.

It is alleged "that the said wicked and corrupt conspiracy, combination, confederation and agreement was originally formed and entered into by the said conspirators during the year 1905, the exact date whereof is to the grand jurors unknown, in the United States of America, the exact place and district whereof is to the grand jurors unknown, and until the twenty-third day of February, in the year nineteen hundred and nine, continuously and

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