145 F. 1 (2nd Cir. 1905), 42, Browne v. United States

Docket Nº:42.
Citation:145 F. 1
Case Date:December 07, 1905
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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145 F. 1 (2nd Cir. 1905)




No. 42.

United States Court of Appeals, Second Circuit.

December 7, 1905

Judson G. Wells and Louis Marshall, for plaintiff in error.

W. Wickham Smith, Special Asst. U.S. Atty. Gen.

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For proceedings below, see 126 F. 766 and 128 F. 615.

This cause comes here upon writ of error to review a conviction of the plaintiff in error under section 5440, Rev. St. U.S. (U.S. Comp. St. 1901, p. 3676), which reads as follows: 'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than $1,000 and not more than $10,000, and to imprisonment not more than two years.'

Three persons were included in the indictment, A. S. Rosenthal and Martin L. Cohn, composing the firm of A. S. Rosenthal & Co., importers of silk goods, and plaintiff in error, an examiner in the appraisers' division of the New York custom house. The contention of the government was that the members of the firm were to enter goods knowingly and fraudulently upon false invoices made abroad-- false as to weight and otherwise-- and that Browne, the examiner, when these invoices should get to him in the due course of business, should disregard his duty as an examiner, should neglect and omit to examine the goods covered by them as the law demanded, and should pass them along reporting the invoices to be correct so that, on the basis of his report, the entries might

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be liquidated and the government deprived of its lawful duties. Five separate overt acts (three by the firm, two by Browne) were charged, and each was made the subject of a separate count.

Rosenthal forfeited his bail and did not appear, Cohn and Browne were tried together. The jury found each guilty as charged in the indictment with a recommendation to mercy as to Cohn. Subsequently, upon motion, the trial judge set aside the conviction of Cohn and granted him a new trial. In making this disposition of Cohn's conviction the judge filed an exhaustive discussion of the testimony (128 F. 615), which makes it unnecessary to rehearse the same here. It will be sufficient to refer to such of the 196 assignments of error as are of moment or have been pressed in argument upon the attention of the court.

The indictment sets forth that Rosenthal, Cohn, and Browne 'before and on the thirtieth day of July, in the year of our Lord nineteen hundred and one, at the city of New York aforesaid, in the district aforesaid, unlawfully did conspire and agree together, and with divers other persons to the said grand jurors unknown, to defraud the said United States of large sums of money then legally due and to become due to the said United States, and which should have been paid by the said Abraham S. Rosenthal and Martin L. Cohn to the said United States, as duty upon divers importations of dutiable goods, wares, and merchandise into the said United States, from foreign countries, then made and thereafter to be made by the said Abraham S. Rosenthal and Martin L. Cohn at the port of New York, in the said district, which said unlawful conspiracy then and there was one which was to be effected in the manner following; that is to say: The said Abraham S. Rosenthal and Martin L. Cohn were to cause such goods, wares, and merchandise to be shipped from foreign countries consigned to them under the firm name of A. S. Rosenthal & Co., at the said port of New York, at which port they, the said Abraham S. Rosenthal and Martin L. Cohn, upon consular invoices containing, and known to them to contain, false statements as to the weight of the said goods, wares, and merchandise and false descriptions of the same goods, wares, and merchandise, were to make their written estimated entries of the said goods, wares, and merchandise at the custom house of the United States at the said city and port of New York, with the collector of customs at that port, upon their arrival, and when certain of the said goods, ware, and merchandise should according to law be designated and sent to the public stores at the said port for examination and appraisement, and when the same goods, wares, and merchandise, and the invoices accompanying the same, should be given to the said Charles C. Browne (who was then an examiner of imported merchandise at the said port) for examination and appraisement, he, the said Charles C. Browne, was thereupon to neglect and refuse to ascertain the true weight and nature of the said goods, wares, and merchandise, as it then and there was his duty under the law and under the practice at the said port to do as such examiner, and was, contrary to his duty as such examiner, to knowingly make false returns and reports upon the said invoices as to the weight and nature of the said goods, wares, and merchandise, to the end that in either case the said entries thereof and the duty upon the same should be, according to the practice at the said port, liquidated by the said collector upon the said returns and reports, and less than the amounts of duty legally due thereon collected by the said collector. ' The indictment then proceeds to set out the overt acts in separate counts.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

LACOMBE, Circuit Judge (after stating the facts).

It was sought by plea in abatement to quash the indictment, upon the ground that W. Wickham Smith appeared before the grand jury on April 2, 1903, when the case was presented to that body and indictment

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found. This point was first raised by a motion to quash. Attached to the motion papers was the following document:

'Department of Justice, Washington, D.C., March 26, 1903.

'W. Wickham Smith, Esq., New York-- Sir: You are hereby appointed an to the United States attorney for the Southern district of New York with compensation at the rate of $3,600 per annum. Your official residence is fixed at New York City. Before entering upon duty please execute the inclosed oath of office, returning it to this department.


P. C. Knox, Attorney General.

'Through Henry L. Burnett, Esq., United States Attorney, New York.'

It is stated in the brief submitted for plaintiff in error that Smith took his oath of office as such assistant United States attorney on April 1, 1903, the day before the grand jury took up the cause, and that he resigned his position as assistant United States Attorney, having served six days as such, on April 6, 1903. The motion was denied, and the same objection subsequently renewed by plea in abatement, which plea was demurred to and demurrer sustained. The plea contains the averment that Smith, as an assistant to the United States attorney for the Southern district of New York continued his investigations and prosecution of defendant, and that 'the written appointment of W. Wickham Smith as assistant to the district attorney is dated the 26th day of March, 1903, and that immediately after the finding of said indictment on April 2, 1903, the said W. Wickham Smith resigned from said office. ' Upon the face of the plea, therefore, it stands conceded that he was on the day in question an Assistant United States attorney for the district, and we know of no reason, and are referred to no authorities, which would sustain the proposition that there is any impropriety in such an assistant appearing before the grand jury to present a criminal cause to their consideration. No impropriety in his conduct or methods before that body is charged. Whether the government should have selected him as such assistant, in view of the fact that he had already familiarized himself with the case upon retainer by the Merchants' Association, which was making an investigation of customs frauds, whether the amount of the salary named, $3,600, was in excess of the statutory designation or of the appropriation, whether at the time of his appointment he was or was not counsel for individuals who had claims against the government, are questions wholly immaterial here. It stands conceded that he was an assistant United States district attorney. It is not contended that he misconducted himself in any way before the grand jury, and that is sufficient to dispose of the plea. It is wholly without merit.

The points principally relied upon in argument are directed to a criticism of the indictment-- some 80 pages of the 'brief' are devoted to that and to the plea. Quite naturally so, because a careful reading of the testimony in connection with the original exhibits satisfies us that the trial judge was entirely right in the conclusion (expressed in his decision on motion for new trial) that the evidence presented upon the trial by government 'amounted to a demonstration that could have left no properly equipped mind unconvinced that there was a fraudulent scheme formed * * * for the purposes

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of defrauding the government' of a portion of the duties accruing upon importations of A. S. Rosenthal & Co.

In criticism of the indictment it is contended that the United States 'could not have been defrauded through the conspiracy set forth in the indictment, and therefore no crime is charged. ' The theory is this: The invoices and entries were to contain false statements as to weights, and were to be passed as correct by Browne, who is averred in the indictment to be 'an examiner of imported merchandise at said port. ' Various statutes and treasury regulations are referred to as showing that the weighing of imported goods is to be done by officers known as 'weighers'; wherefore, it is argued, Browne could not have 'passed' the...

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