The Indictment of Marcus Garvey

UNITED STATES CIRCUIT COURT OF APPEALS
For the Second Circuit

MARCUS GARVEY, Plaintiff-in-Error (Defendant below)

against

UNITED STATES OF AMERICA, Defendant-in-Error (Plaintiff below).

Marcus Garvey, Ely Garcia, George Tobias and Orlando M. Thompson were indicted on two indictments, each of which contained counts charging various substantive offenses, of using the mails to defraud, and each of which contained a count charging conspiracy to commit the substantive offense.

All of the defendants were acquitted of the charge of conspiracy, and only one defendant, Marcus Garvey, was found guilty of the substantive offense, and this, under only one count of the indictment. Upon this single count, Garvey was sentenced to serve five years in the penitentiary at Atlanta and to pay a fine of $1,000 and the costs of the suit. A trial was had before Judge Julian W. Mack and a jury in the United States District Court for the Southern District of New York and judgment of conviction was rendered on the verdict of the jury on June 22, 1923. The plaintiff-in-error, Marcus Garvey, comes here by writ of error on a bill of exceptions,

The Count of the Indictment Upon Which Garvey Was Convicted

The indictment charged a single scheme to defraud. The various counts which charged the substantive offense of the use of the mails in execution of the scheme to defraud are based upon the separate mailing of letters to different addresses. The conspiracy counts charge a conspiracy to execute this scheme to defraud through the intended use of the mails.

Garvey was acquitted of all the charges in both the indictments, except the charge contained in the third count of the second indictment, that on or about December 13, 1920, "for the purpose of executing said scheme and artifice," Garvey placed in a post office in the Southern District of New York "a certain letter or circular enclosed in a postpaid envelope addressed to 'Benny Dancy, 34 W. 131 St., N. Y. C.'"

There is not a scintilla of evidence that Garvey placed or caused to be placed in the mails the circular or letter described or referred to in this count of the indictment. This is so far beyond any question, that we propose to shorten the labors of the Court in consideration of the lengthy record of the testimony by addressing ourselves at the outset to this proposition. And no other demovstration is required than to refer the Court to the testimony of Dancy and to the exhibits in the record, introduced in evidence to support this count of the indictment.

POINT I

There is not a scintilla of evidence, competent or otherwise, to establish the mailing of the indictment letter, upon which the third count of the second indictment was based. It was upon this count and only this count that Garvey was convicted