143 F.2d 118 (9th Cir. 1944), 10415, Takahashi v. United States

Docket Nº:10415.
Citation:143 F.2d 118
Party Name:TAKAHASHI et al. v. UNITED STATES.
Case Date:May 31, 1944
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 118

143 F.2d 118 (9th Cir. 1944)

TAKAHASHI et al.

v.

UNITED STATES.

No. 10415.

United States Court of Appeals, Ninth Circuit.

May 31, 1944

Page 119

Samuel B. Bassett, of Seattle, Wash., for appellant Takahashi.

Tracy E. Griffin, of Seattle, Wash., for appellant Osawa.

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J. Charles Dennis, U.S. Atty., and G. D. Hile and Allan Pomeroy, Asst. U.S. Attys., all of Seattle, Wash., for appellee.

Before STEPHENS and HEALY, Circuit Judges, and FEE, District Judge.

JAMES ALGER FEE, District Judge.

The appellants were indicted and convicted on one count, of violation of the conspiracy statute 1 and on a second count, of the violation of an executive order by designating China as the country of destination on an application for license to export certain new storage tanks when in fact Japan was the country of ultimate destination 2 and finally on a third count, of causing false and fraudulent statements to be made in that application in a matter within the jurisdiction of the Department of State. 3

Appellants are American citizens, born in the United States of Japanese ancestry and each has lived in Seattle all his life. The appellants have known each other since childhood. In 1920, Takahashi succeeded his father in the exporting and importing business to and from the Orient. His business was prosecuted generally under the firm name of 'Charles T. Takahashi & Co.' Since 1929, Osawa was employed by Takahashi and finally became general manager of the company. Since that time, Takahashi has also used the name 'China Import & Export Company.' Although, before the war, Takahashi did a considerable business of general importing and exporting with branch offices in Portland, Oakland, Vancouver and Tokyo, by 1940 this was considerably disrupted. However, he still did quite a volume of business in exportation to Japan of large second-hand oil tanks for the storage of oil to a recognized financial concern in Tokyo called Mikuni-Shoko Limited. Beginning in the year 1940, Mikuni-Shoko had ordered about forty of these tanks for delivery in Japan. Most of these had been forwarded when the United States government, in August 1940, prevented the export, without special license, of steel scrap to Japan. Since Takahashi had several of these tanks on hand, it became important to know whether these used tanks were scrap steel within the prohibition. Upon application, authorities in Washington ruled that there was no license required. Mikuni-Shoko then placed an order for eleven new tanks for delivery in Japan, but only three were obtainable and while these three were not yet completely manufactured, by presidential order, ten days were allowed for the export of outstanding orders with the warning that after that time exportation could only be made under special license.

An attempt was made by Takahashi to construct some formula which would be approved by the government so that the tanks could go forward and while these negotiations were pending, Takahashi sent Osawa to Tokyo. According to their stories, Osawa was to settle a disputed claim in North China, close the Tokyo office of the concern and then make commercial arrangements for the importation of China wood oil at Shanghai. According to appellants, Osawa arrived in Tokyo, settled the account in North China, paid the Mikuni-Shoko Company the money that had been received on the tanks and closed the Tokyo office. Osawa testifies that owing to the control of Shanghai by the Japanese, he did not go there but asked Mikuni-Shoko Company finally cable that they had decided that the name of the firm was Hua Hsin Company in Shanghai. It was then said that Osawa suggested to Mikuni-Shoko Company, that an offer of these tanks should be made to Hua Hsin Company as a starter for the business connection. About July 16, Takahashi received from Hua Hsin Company, by cablegram directed to China Import & Export Company, an order for the purchase of these same three tanks and thereupon he made and filed in Washington, D.C., an application for permission to forward them to this company at Shanghai which was not forbidden by regulation although delivery in Japan would have been. No cash nor any supporting credit ever came from Hua Hsin Company or elsewhere. Takahashi finally sold the tanks to other customers.

When Osawa had closed the Tokyo office and had adjusted the Takahashi business, he was unable to leave Japan in July because of the existing situation, but finally he got a ship which took him to Seattle arriving November 2. From Victoria he

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wired Takahashi to meet him in Seattle with some money for customs duties, which Takahashi did. Before leaving the boat Osawa dropped a letter in the waste paper basket in his stateroom which letter indicated that he was going to smuggle six pairs of silk stockings into the country. The finding of this letter probably led to some of the subsequent events. The customs officers had had Takahashi under observation for a considerable time suspecting a violation of the Foreign Funds Control Act, 50 U.S.C.A.Appendix, § 5, and this was another contributing factor to the subsequent events. Takahashi had a permit to go upon an incoming vessel but was not to enter the enclosure for the customs where the baggage is examined. Takahashi went aboard the boat and then subsequently into the customs enclosure where he and Osawa were conversing. Eventually they passed some papers from one to the other. The customs officers then acted and searched the brief case of Takahashi wherein they found a great many letters and documents. They also examined the brief case of Osawa and found one letter which was not of great importance.

There is no point in setting out in full, or even in part, the documents which were seized by the customs officers in this case. It suffices to say that they did not constitute an agreement to violate any law or executive order issued under the authority of the United States. But these code telegrams, letters and other documents did indicate and were evidence that the appellants knew that the ultimate destination of the three tanks was not Shanghai; that the Hua Hsin Company was a fictitious entity; and that the real purpose of appellants was to deliver these tanks to the agents of the Japanese military authorities (called Gunbu in the documents). It also appeared therein, inferentially or by direct statement, that Osawa's mission was in fact to Tokyo to return the money paid for the tanks to its source and thereupon he was hounded day by day by the military authorities in Japan to get delivery of the three tanks by Mexico or Vladivostok. This ended finally in the suggestion of a name of a Hua Hsin Company of which Osawa had never heard before, in the effort to have the tanks put aboard a ship for Shanghai so that they could be taken off at Yokohama. It also appeared that reliance was still placed on the $71, 700 which had originally been advanced by Mikuni-Shoko Company and on no other credit or money whatsoever.

On April 27, 1942, six months after the search, but before trial, appellants filed a joint petition asking for the suppression of this evidence. This petition was refused and the case went on trial. The errors assigned relate to the denial of the petition for the return of the papers and their introduction in evidence; the denial of the motions to dismiss the indictment and for a directed verdict; the comment of the court to the jury; and the instruction which the court gave regarding good reputation.

The exception as to the instructions on reputation will first be dealt with. Neither is technically entirely exact, but appellants did not point out specifically wherein the inexactness lay so that the trial court could have made a correction and therefore error, if any, was waived. Furthermore, the impression created by these instructions was not unfair to appellants and on the whole did no harm.

The portion of the instructions to which exception was taken as unfair comment, was a summary of the evidence and a construction of the written documents which were involved in the seizure. The competent trial judge posed certain questions with reference to these documents which plainly suggested his opinion that the jury might arrive at certain conclusions after a consideration of the evidence. However, he constantly reiterated the instruction that the jury was not bound by the comment by the judge upon a question of fact and the axiom that the jury are the sole and exclusive judges of the fact. He likewise gave the appellants the benefit of comment favorable to them on other features and wove the whole into a pattern which plainly gave the jury to understand that the appellants were not to be convicted unless the government proved the material allegations of the indictment beyond a reasonable doubt. In this case the trial judge did nothing more than was done in United States v. Goldstein, 2 Cir., 120 F.2d 485, 491:

'He then put before them a number of questions whose answers they might, he thought, find important or even critical in deciding the guilt or innocence of the accused. These he did indeed couch in such a way as to make fairly apparent what answers he would himself have given to

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