The judgment of the Circuit Court of Appeals affirming a
conviction of the offense of conspiracy to export gold in violation
of Executive Order No. 6260 (31 C.F.R. 50.6), and other offenses,
on grounds conceded to be erroneous by the Government, is vacated.
The Government's contention that the conviction can be sustained on
other grounds is not passed upon, and the cause is remanded to the
Circuit Court of Appeals, since it is more appropriate that the
contention be considered in the first instance by that Court. P.
323 U. S.
16.
141 F.2d 436 vacated.
Petition for a writ of certiorari, herein granted, to review the
affirmance of a conviction of conspiracy to commit federal
offenses.
PER CURIAM.
Petitioner asks certiorari to review his conviction upon an
indictment charging criminal conspiracy to commit several separate
offenses. The indictment charged petitioner, one Smith and another
(who was acquitted by the jury), and persons unknown, with a
conspiracy to acquire gold bullion without a license in violation
of § 4 of Executive Order 6260 (31 C.F.R. § 50.4); to
earmark for export, and to export to Germany gold bullion without a
license, both in violation of § 6 of the Order (31 C.F.R.
Page 323 U. S. 16
§ 50.6), and with conspiracy to commit two counterfeiting
offenses.
At the trial, the evidence showed that petitioner, who was
interested in making a profit from the sale of gold, was introduced
by an informer to one Schaetzel, a Government agent who posed as
the owner of a gold mine, interested in disposing of gold.
Petitioner told Schaetzel a story, conceded by the Government to be
without foundation, to the effect that petitioner wished to procure
gold for sale to Nazi agents in this country who proposed to
transport it to Germany by submarine. Petitioner, who was in fact
seeking other ways of disposing of gold, tried without success to
negotiate with numerous dealers, some of whose names were suggested
to petitioner by Smith on petitioner's promise to pay him a
commission. When Schaetzel complained to petitioner of the delay in
consummating the proposed arrangement with the supposed Nazi
agents, petitioner induced Smith to pose as such to reassure
Schaetzel.
On the verdict of the jury, finding petitioner and Smith guilty
as charged by the indictment, the district court gave judgment
against them. The Court of Appeals for the Seventh Circuit reversed
the conviction of Smith, but affirmed that of petitioner, 141 F.2d
436, on the ground that the jury could have found that petitioner
had conspired with unknown Nazi agents to export gold.
The Government, by its brief here, formally concedes that
petitioner's conviction cannot be sustained on this ground. It
admits that petitioner's story of his negotiations with Nazi agents
was sham, as he testified at the trial and as is shown by other
evidence submitted to the jury and by the failure of the Government
to produce evidence of contacts with Nazi agents although
petitioner was under almost constant surveillance by government
agents. The Government also concedes that it has no evidence. and
that there is none in the record. to support petitioner's
Page 323 U. S. 17
conviction on any theory of a conspiracy to export gold. It, in
effect, confesses that the affirmance on that ground is error. The
Government also admits that the conviction cannot be supported on
the counterfeiting charges.
But the Government argues that there is evidence in the record
sufficient to sustain the conviction of petitioner and Smith of
conspiracy to acquire gold without the prescribed license,
notwithstanding the Government's failure to seek a review of the
reversal of Smith's conviction. The district court's instructions
to the jury are not included in the record on appeal. In this state
of the record, there can be no question that this charge of the
indictment was not properly submitted to the jury.
On the Government's concession, which we accept, as to the
charge of conspiracy to export gold and to commit counterfeiting
offenses, the judgment of the Court of Appeals cannot be sustained.
We do not consider the merits of the Government's contention that
the conviction can be sustained on other grounds, since, in the
circumstances of this case, we deem it more appropriate that the
Court of Appeals consider that question in the first instance.
Cf. Manufacturers' Finance Co. v. McKey, 294 U.
S. 442,
294 U. S.
453-454, and cases cited;
United States v.
Malphurs, 316 U. S. 1,
316 U. S. 3.
The petition for writ of certiorari is granted, the judgment is
vacated, and the cause remanded to the Circuit Court of Appeals for
further proceedings in conformity to this opinion.
So ordered.