125 F.2d 283 (6th Cir. 1942), 8714, Braverman v. United States

Docket Nº:8714, 8715.
Citation:125 F.2d 283
Case Date:January 14, 1942
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 283

125 F.2d 283 (6th Cir. 1942)







Nos. 8714, 8715.

United States Court of Appeals, Sixth Circuit.

January 14, 1942

Page 284

Donald B. Frederick, of Detroit, Mich., Robert N. Gorman, of Cincinnati, Ohio, and John E. Dougherty, of Peoria, Ill., for appellants.

Louis M. Hopping, of Detroit, Mich. (John C. Lehr, of Detroit, Mich., on the brief), for appellee.

Before SIMONS, ALLEN, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

The three appellants were indicted with numerous others upon seven counts of a single indictment, each count charging conspiracy to violate a separate and distinct internal revenue liquor law of the United States. The seven counts respectively charged appellants with conspiracy, in violation of section 37 of the Criminal Code, U.S.C.A., Title 18, section 88, (1) unlawfully to carry on the business of wholesale and retail liquor dealers without having the special occupational tax stamps as required by law; (2) unlawfully to possess distilled spirits, the immediate containers thereof not having affixed thereto stamps denoting the quantity of distilled spirits contained therein and evidence in payment of all internal revenue taxes imposed on such spirits; (3) unlawfully to transport large quantities of distilled spirits, the immediate containers not having affixed thereto the required stamps; (4) unlawfully to carry on the business of distillers without having given bond as required by law; (5) unlawfully to remove, deposit and conceal distilled spirits, in respect whereof a tax was imposed by law; (6) unlawfully to set up and possess unregistered stills and distilling apparatus; and (7) unlawfully to make and ferment mash, fit for distillation, on unauthorized premises.

The jury found the three appellants and another defendant, Harry Klein, 'guilty as charged, ' and failed to agree upon a verdict as to two other defendants. Each of the appellants was sentenced to eight years' imprisonment and fined two thousand dollars.

(1) Appellants urge that under no view of the evidence was there presented more than one conspiracy and that there was a fatal variance between the indictment and the proof.

The indictment was drawn in manifest conformity to our holding in Fleisher v. United States, 6 Cir., 91 F.2d 404, where judgment of conviction was upheld on four conspiracy counts each charging the violation of a distinct internal revenue liquor law of the United States. We rejected the contention that the indictment charged only one continuing conspiracy, consisting of one crime only, for which there could be but one punishment. Applying the principle of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306, that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not, we found that certain entirely distinct elements were required to establish the conspiracy

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described in each count of the indictment and accordingly that four distinct offenses were charged.

See, also, an earlier decision of this court, Parmenter v. United States, 6 Cir., 2 F.2d 945, 946. Compare Leonard v. United States, 6 Cir., 18 F.2d 208, 213.

In Telman v. United States, 10 Cir., 67 F.2d 716, a judgment of conviction on eight counts of conspiracies to violate various provisions of the National Prohibition Act, 27 U.S.C.A. § 1 et seq., was upheld. In the Ninth Circuit, conspiracy to bring aliens into this country and conspiracy to conceal them, after they had landed, have been held to constitute separate offenses, despite the fact that some of the overt acts were in execution of both conspiracies. Yenkichi Ito v. United States, 9 Cir., 64 F.2d 73, 77.

Mr. Justice Brandeis in Albrecht v. United States, 273 U.S. 1, 11, 47 S.Ct. 250, 254, 71 L.Ed. 505, with characteristic clarity, said: 'One may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offence. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction.'

In Meyers v. United States, 6 Cir., 94 F.2d 433, the doctrine of Fleisher v. United States, supra, was applied in the affirmance of the conviction of a defendant upon two counts, each charging conspiracy to violate a separate and distinct internal revenue liquor law of the United States.

In the Fleisher case, there being no bill of exceptions, we assumed, in view of the jury verdict of guilty on all four counts, that evidence was offered showing the existence of four separate conspiracies. In the instant case, there is a lengthy bill of exceptions, setting forth a mass of evidence. This evidence has been considered in the light of settled principles.

Under the statute, the gist of the offense of conspiracy is an unlawful combination which must be proven against all members of the conspiracy, each one of whom is then held responsible for the acts of all; but it is not required that an overt act be proven against each member of the conspiracy. Bannon v. United States, 156 U.S. 464, 468, 15 S.Ct. 467, 39 L.Ed. 494.

There have been numerous decisions of this court to the effect that existence of a conspiracy may be established by inferences from circumstantial evidence. Johnson v. United States, 82 F.2d 500, 504; Susnjar v. United States, 27 F.2d 223; Zottarelli v. United States, 20 F.2d 795, 798; Williams v. United States, 3 F.2d 933; Israel v. United States, 3 F.2d 743; Remus v. United States, 291 F. 501; Windsor v. United States, 286 F. 51; Davidson v. United States, 274 F. 285, 287.

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