Fiswick v. United States
329 U.S. 211 (1946)

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U.S. Supreme Court

Fiswick v. United States, 329 U.S. 211 (1946)

Fiswick v. United States

No. 51

Argued November 19, 20, 1946

Decided December 9, 1946

329 U.S. 211

Syllabus

1. Petitioners and others were indicted for conspiracy to defraud the United States in violation of § 37 of the Criminal Code. The indictment charged that petitioners conspired with each other, and with others, to defraud the United States by concealing and misrepresenting their membership in the Nazi party. The last overt act alleged to have been committed by any of the petitioners was the filing by one of them of a registration statement under the Alien Registration Act of 1940, in which he falsely failed to disclose his connection with and activities in the Nazi party.

Held that the conspiracy charged and proved did not extend beyond the date of the last overt act, and that admittance in evidence against all of the

Page 329 U. S. 212

petitioners of admissions made after that date by one of the petitioners was reversible error. Pp. 329 U. S. 215-220.

(a) Though the result of a conspiracy may be continuing, the conspiracy is not a continuing one unless there is continuous cooperation of the conspirators to produce the unlawful result. P. 329 U. S. 216.

(b) An overt act being necessary to complete the offense of conspiracy under § 37 of the Criminal Code, the overt acts averred and proved may mark the duration, as well as the scope, of the conspiracy. P. 329 U. S. 216.

(c) The conspiracy charged and proved did not extend beyond the date of the last overt act (the filing of the false registration statement), and the subsequent admissions of each defendant were improperly employed against the others. P. 329 U. S. 217.

(d) While the act of one conspirator is admissible against the others, if it is in furtherance of the criminal undertaking, all such responsibility ends when the conspiracy ends. P. 329 U. S. 217.

(e) Confession or admission by one coconspirator after he was apprehended was not in furtherance of the conspiracy to deceive the Government, but had the effect of terminating the conspiracy, so far as he was concerned, and made his admissions inadmissible against his erstwhile fellow conspirators. P. 329 U. S. 217.

(f) It cannot be said with fair assurance in this case that the jury was not substantially swayed by the use of these admissions against all defendants, and therefore it cannot be considered a "harmless error" within the contemplation of § 269 of the Judicial Code. Kotteakos v. United States,328 U. S. 750. Pp. 329 U. S. 217-220.

2. The fact that his sentence of imprisonment has been served does not render moot a review of the conviction of an alien under § 37 of the Criminal Code for conspiring to file a false registration statement under the Alien Registration Act and to conceal from the Government his membership in the Nazi party, since the conviction may weaken his defense to a deportation proceeding under 8 U.S.C. § 155, impair his chances of naturalization under 8 U.S.C. § 707(a)(3), and subject him to the loss of certain civil rights. Pp. 329 U. S. 220-223.

153 F.2d 176 reversed.

Petitioners were convicted under § 37 of the Criminal Code of conspiring to defraud the United States in the exercise of its governmental functions by filing false registration statements under the Alien Registration Act of 1940, 54 Stat. 670, 8 U.S.C. § 451 et seq., and concealing

Page 329 U. S. 213

their membership in the Nazi party. The Circuit Court of Appeals affirmed. 153 F.2d 176. This Court granted certiorari. 327 U.S. 776. Reversed, p. 329 U. S. 223.

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