Moss v. United States, 9040

• Decision Date: 05 February 1943
• Docket Number: 9041,No. 9040,9043.,9042,9040
• Citation: 132 F.2d 875
• Parties: MOSS v. UNITED STATES. CALDERWOOD v. SAME (2 cases). TAFEL v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

132 F.2d 875 (1943)

MOSS v. UNITED STATES.

CALDERWOOD v. SAME (2 cases).

TAFEL v. SAME.

Nos. 9040, 9041, 9042, 9043.

Circuit Court of Appeals, Sixth Circuit.

February 5, 1943.

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Donald B. Frederick, of Detroit, Mich., for appellant Abe Moss.

George E. Day, of Detroit, Mich., for appellants Calderwood.

Maximilian J. St. George and Leo J. Hassenauer, both of Chicago, Ill. (Maximilian J. St. George and Leo J. Hassenauer, both of Chicago, Ill., and Arthur H. Ratner, of Detroit, Mich., on the brief), for appellant Tafel.

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

Before SIMONS, MARTIN, and McALLISTER, Circuit Judges.

SIMONS, Circuit Judge.

The appellants were tried, convicted and sentenced on an indictment charging seven separate and distinct conspiracies: (1) To carry on business as a wholesale and retail liquor dealer without the special occupational tax stamp required by law; (2) to possess distilled spirits, the immediate containers not having affixed thereto stamps denoting quantity and evidencing payment of internal revenue taxes; (3) to transport untaxed quantities of distilled spirits; (4) to carry on the business of distillers without having given required bond, and with intent to defraud the government of taxes; (5) to remove and conceal such spirits with intent to defraud the government of taxes; (6) to transport spirits of like character with like intent; and (7) to employ a vessel for the purpose of smuggling such spirits into the Dominion of Canada in violation of its laws. Moss was found guilty as charged, Calderwood, Sr. guilty on four counts, Calderwood, Jr., on five, and Tafel on two. In addition Moss and Calderwood, Jr. were, at the same trial, convicted on a separate indictment of the substantive offense of transporting unstamped distilled spirits.

Moss was sentenced generally to a term of ten years and fined $10,000 for the conspiracies, and to a term of five years for the substantive offense, the second term to run concurrently with the first. Calderwood, Sr. was sentenced to a term of fifteen months and directed to pay a fine of $1,000; Calderwood, Jr. to a term of five years with a fine of $1,000; and Tafel to a term of eighteen months with a fine of $1,000. Each of the defendants perfected his separate appeal, having challenged the submission of his case to the jury by a motion for directed verdict based upon failure of the evidence substantially to indicate his guilt. In addition, Moss expressly, and Calderwood, Jr. impliedly, assailed the validity of their sentences for the conspiracies on the ground that if conspiracy existed there was but one and not seven, making unlawful the imposition of sentences in excess of two years.

It is now conceded by the government that under the authority of Braverman v. United States, 63 S.Ct. 99, 87 L.Ed. ___, decided November 9, 1942, since the sentences were imposed, the court had no power to impose a general sentence of ten years upon Moss for conspiracy, and we agree. As in the Braverman case, such proof as there was of concert of action between Moss and others, from which reasonable inferences might be drawn of unlawful agreement or conniving, points to but a single continuing agreement though embracing a multiplicity of criminal objectives. The sentence was unlawful and will have to be set aside.

But whether the indictment be construed as charging one or many conspiracies, the defendant Moss asserts he was unjustly convicted because of the failure of the government to prove the offense as charged. The record is long and involved. Careful scrutiny and analysis, however, reveal substantial evidence of Moss' activities in concert with others of the defendants, in one or more of the unlawful enterprises alleged. This much brief and argument of counsel seem to admit when they press upon us the contention that the evidence but shows that Moss decided to purchase illicit alcohol in Chicago, have it transported to Detroit and thence to Canada for sale, and in such enterprise engaged the services of Canadians Jolly and Barron who made several trips from Chicago to Detroit with loads of alcohol. This is advanced for the purpose of showing that while a conspiracy of some kind, to which Moss was a party, may, under the proofs, have been reasonably inferred, it was not the conspiracy charged in the indictment. The rule relied upon is that proof of different and distinct conspiracies from that charged in the indictment for which the defendant is placed on trial, will not sustain a conviction. Wyatt v. United States, 3 Cir., 23 F.2d 791; Ventimiglio v. United States, 6 Cir., 61 F. 2d 619. Conceding existence and soundness of the rule we are convinced that it is not presently applicable. Though proof fails to show the full sweep of the conspiracy charged in the indictment, yet what is shown comes within its scope, there is no error in submission of it to the jury nor infirmity in a verdict of guilty. Nor must such conviction be set aside if the concert of action disclosed is between the convicted defendant and some, though not all, of the alleged conspirators. If this were not so there could never be a conviction for conspiracy, no matter how plain and obvious the guilt. The conspiracy here proved, in which Moss...