145 F. 81 (1st Cir. 1906), 598, Grunberg v. United States

Docket Nº:598-601.
Citation:145 F. 81
Case Date:April 27, 1906
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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145 F. 81 (1st Cir. 1906)










Nos. 598-601.

United States Court of Appeals, First Circuit.

April 27, 1906

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Boyd B. Jones (Marshall P. Thompson and Horatio N. Allin, on the brief), for plaintiffs in error Samuel Grunberg and Charles A. Baitler.

Everett W. Burdett (Joseph H. Knight, on the brief), for plaintiff in error John W. Trafton.

Charles K. Cobb, for plaintiff in error James A. Shedd.

William H. Garland, Asst. U.S. Atty., and John H. Casey, Special Asst. U.S. Atty.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM, Circuit Judge.

These writs of error represent a joint indictment under section 5440 of the Revised Statutes (U.S. Comp. St. 1901, p. 3676), alleging a conspiracy to defraud the United States, with certain overt acts stated in the indictment in connection with certain importations alleged to have been made at the port of Boston. The parties indicted were Grunberg, Baitler, and Burman, copartners, doing business in Boston under the style of the 'Glasgow Manufacturing Company,' who were the importers, Munroe, who represented the customhouse brokers, and Trafton and Shedd, who were officers in the customs service, and examiners of merchandise at the port named. There were pleas and a demurrer, which were overruled, raising certain questions, some of which we will consider. Subsequently, Burman pleaded guilty, and, after verdict against all of the other persons charged, except Munroe, who was acquitted, he was on the 28th day of December, 1904, sentenced to pay a fine. Subsequently, on the 18th day of April, 1905, Grunberg was sentenced to imprisonment for 20 months in the jail at East Cambridge, Baitler for 12 months in the same jail, Trafton for 20 months in the jail at Dedham, and Shedd also

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for 20 months in the same jail; each of course being, according to the usual practice, separately sentenced.

The indictment alleges that the Glasgow Manufacturing Company was engaged in importing into the port of Boston from Switzerland certain merchandise, subject to ad valorem, duties, from the 1st day of September, 1901, until the 18th day of October, 1903. The merchandise is described as cotton embroideries, cotton handkerchiefs, mull handkerchiefs, cotton lace curtains, cotton insertions, cotton edgings, cotton shirt fronts, white mull handerchiefs, cotton shams, cotton scarfs, and embroidered handkerchiefs. The conspiracy is alleged to have been formed under date of the 1st day of November, 1901, and its purpose is alleged to have been to defraud the United States of divers large sums of money thereafter to become due to the United States from Grunberg, Baitler, and Burman, as copartners, as customs duties on the importations from Switzerland of large quantities of merchandise of the kinds named. The indictment then proceeds to state the manner in which the conspiracy was to be effectuated, in substance as follows: That Grunberg, Baitler, and Burman, as copartners, were to purchase, near St. Gallen, in Switzerland, from time to time, large quantities of merchandise and cause the same to be packed in packages, the contents of each of which should exceed the sum of $100, but to be exported to Boston and be entered as having little or no commercial value, namely, as clippings of edgings, sample handkerchiefs, discards, designs, cotton sample strips, lace sample corners, and lace samples. The indictment further alleges that the foreign market values of each package imported were to be declared to be less than $100, and, when more than one package was entered, the total market value of all so entered to be included in one entry were to be declared to be less than such sum of $100, so that the whole would apparently be entitled to entry without the production of a consular invoice. The indictment further alleges that it was a part of the conspiracy that Trafton and Shedd, as such examiners, should neglect to do their duty in reference to the examination of the imported merchandise, and, among other things, they were willfully to neglect to truly inform the appraiser concerning the same, and willfully to neglect to make complaints to the collector of the violations of law by Grunberg, Baitler, and Burman. The indictment further alleges that part agreed to be done by Munroe, as customhouse broker, to which we need not refer particularly. Then the indictment proceeds to charge various overt acts covering packages numbered 110, 121, 149, 150, 151, 152, 175, 179, 211, 212, 223, 224, 225, 228, 231, 232, 263 264, 339, 340, 344, 371, 372, 373, 377, and, perhaps, some others, all of which we understand did pass the customs and went beyond the custody, and control of the United States, authorities. In addition to the above, the indictment specifies two packages, numbered 271 and 272, which, we understand, did not pass the customs, but were seized, produced at the trial, and examined by the jury. Grunberg, Baitler, Shedd, and Trafton each sued out a writ of error, according to the rules which are supposed to apply here, on the ground that the sentences were several and distinct. Cox v. United States, 6 Pet. 172, 182, 8 L.Ed. 359;

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Germain v. Mason, 12 Wall. 259, 20 L.Ed. 392; Wharton's American Criminal Law, Sec. 2347.

In addition to the particular importations which are set out in the indictment, as overt acts, the United States proved other importations, making in all 90 cases of merchandise, all occurring within the stated period within which the alleged overt acts occurred. The purpose in adducing these additional importations was only on the issues of knowledge and intent. The jury was impaneled on October 4, 1904, and the verdict was rendered on December 22, 1904. A great many exceptions were taken, and 141 errors were assigned. Considering the length of the trial, and the volume given to it by the method in which the United States introduced proof of so many importations, the assignment of so large a number of errors might well have been expected. No comment is made on that account, beyond the fact that the multiplicitly of alleged errors has unavoidedly disclosed some which, after full investigation, the plaintiffs in error concluded not to rely on, and has disclosed others which, on account of their minor importance, have not been developed in the arguments before us. In view of the fact that so many errors were assigned, we have not felt called on to discuss those which were not fully developed at the trial before us. So far as we fail to allude to the propositions of the parties, it will be understood, therefore, that the omission, for the reasons which we have explained, is either because the propositions have not been urged on us or because the failure to develop them fully has been of such a character, and under such circumstances, that we did not feel called on to investigate the record or the authorities for ourselves.

The first proposition to which we give our attention is an alleged repugnancy on the face of the indictment. It is not specifically set out in any error assigned, but it is claimed to be covered by a long series of alleged errors assigned in a more or less general manner. As this proposition is brought to our attention, we are unable to perceive any repugnancy, while to us the indictment is expressed in this particular in the usual and customary manner. We would hardly know how to express it other than as we find it.

The next point is to the effect that, inasmuch as section 3169 of the Revised Statutes (U.S. Comp. St. 1901, p. 2059) provides a different penalty for an officer of the United States conspiring from that imposed by section 5440 on individuals other than officers, officers cannot be joined in this indictment with individuals. The offense alleged, however, is as expressly stated in each section of the Revised Statutes, namely, as conspiracy 'to defraud the United States.' Section 5440 follows these words with the words, 'in any manner or for any purpose,' which words do not appear in section 3169. These, however, are mere surplusage. Section 5440 requires a proof of some overt act, which is not required under section 3169; but the offense is the same, and the result will be only that, if the United States joins both officers and individuals in the same indictment, they may be required to prove more than if they proceeded against the officers alone. Were it not for the requirement of section 5440 of an overt act, there would therefore be no difficulty whatever, where both officers and individuals were connected

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with the same conspiracy, in charging both in the same indictment with conspiracy 'to defraud the United States,' if that was the nature of the conspiracy, as it is in the case at bar, and in then proceeding to a joint verdict, to be followed by different sentences; the one for the individuals conforming to section 5440, and the one for the officers to section 3169. The offense with regard to each would be the same, and only the penalties would be different. There could be no more practical difficulty in thus awarding different penalties than there is in the ordinary cases where different penalties are awarded against several individuals found guilty of the same joint offense. It may not, however, be safe to say that this can be done here, on account of the requirement under section 5440 of the overt act in connection with the individuals, while, as we have said, an overt act is not required under section 3169, in connection with the officials.

It is true that section 5440 arose out of the act of March 2, 1867, c. 169, Sec. 30, 14 Stat. 484, while section 3169 arose out of a later act, namely, that of July 20, 1868, c. 186, Sec.98, 15 Stat. 165. Of course,...

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