Madden v. United States

• Decision Date: 01 August 1927
• Docket Number: No. 4955.,4955.
• Citation: 20 F.2d 289
• Parties: MADDEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

20 F.2d 289 (1927)

MADDEN et al. v. UNITED STATES.

No. 4955.

Circuit Court of Appeals, Ninth Circuit.

June 13, 1927.

Rehearing Denied August 1, 1927.

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K. I. Perky, of Los Angeles, Cal., and James B. O'Connor and R. B. McMillan, both of San Francisco, Cal., for plaintiff in error Madden.

Hugh L. Smith, Charles J. Wiseman, and Williams, Kelly & McDonald, all of San Francisco, Cal., for plaintiff in error Owen.

Nathan C. Coghlan and Edward A. O'Dea, both of San Francisco, Cal., for plaintiff in error Parente.

Joseph Edward Connolly, of San Francisco, Cal., for plaintiff in error Bonacorsi.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

The four plaintiffs in error were found guilty upon an indictment charging them and their several co-defendants with a conspiracy to violate criminal provisions of both the National Prohibition Act (Comp. St. § 10138¼ et seq.) and of section 593 of the Tariff Act of 1922 (Comp. St. §§ 5841h12, 5841h13). Within the scope of the charge the evidence tends to show that during the year 1924 they, with others, acting pursuant to a common understanding, purchased the steamship Principio, then at the port of San Pedro, and caused her to be taken to Vancouver, in British Columbia, for a cargo of intoxicating liquor; that after they had taken on approximately 7,000 cases of whisky and large quantities of wine and beer they caused the ship to be brought to the Cordell Banks, a point off the port of San Francisco, where she lay from May 28 to August 20, 1924; and that during this time they succeeded in smuggling into San Francisco and vicinity the whole amount of the cargo.

Each of the four defendants was represented by separate counsel, and now separately brings error and presents a separate brief. In the course of the trial innumerable objections were made, and to rulings thereon defendants note and number 354 exceptions. The briefs aggregate over 450 pages, and there are more than 400 specifications. To be sure, many of the specifications are either expressly or tacitly abandoned, but even with such eliminations those remaining are too numerous to admit of detailed discussion. Our discussion, however, is not to be taken as a measure of our consideration. We have carefully read and considered the entire record of all the proceedings taken at the trial, as set forth in the elaborate bill of exceptions.

Touching a suggestion of haste and impatience on the part of the trial judge, it is to be said that, while certain isolated expressions exhibited in the briefs may import a degree of irritation, when viewed in the light of the entire record they are found to have but little significance. To make progress at all against the many and persistent objections of numerous counsel separately representing the different defendants, a measure of rigor was necessary, and, upon the whole, the conduct of the case was eminently fair and considerate. During the course of the trial the jurors were repeatedly and earnestly cautioned against improper considerations and outside influences, and in the final charge the rights of the defendants were emphasized and safeguarded with great care. We are fully satisfied that, unless there was prejudice growing out of one or more of the matters upon which we shall briefly comment, defendants were accorded all rights afforded by the law, and had a fair trial.

The contention most insistently urged by the plaintiffs in error is the improper inclusion in the introductory part of the indictment of the provisions of section 3 of title 2 of the National Prohibition Act (Comp. St. § 10138½aa) and section 593 of the Tariff Act of 1922. Admittedly, the pleading is subject to criticism in this respect, and we have only to consider the effect of the impropriety. The language quoted from the National Prohibition Act is so plainly innocuous that it may be passed without further comment. Section 593 of the Tariff Act, as set out in the indictment, provides that it shall be an offense for any one knowingly or fraudulently to bring into the United States any merchandise contrary to law, or with knowledge of the unlawful importation, to receive, buy, sell transport, or conceal such merchandise. Then follows the provision upon which defendants chiefly rely, namely: "Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury." Comp. St. § 5841h13.

By motions to quash and in other ways defendants sought relief, but the court held that being merely surplusage the objectionable matter did not invalidate the indictment, and also that under controlling decisions it could not be stricken out, and further, that its inclusion and retention would not necessarily be prejudicial. In this view it is thought there was no error, and we are clearly of the opinion that in fact no prejudice resulted to the defendants from the course pursued. In qualifying the jurors, and in the final charge, if not at other stages of the trial, the court took care to remind the jurors of what they had apparently learned in the trial of other cases during the term, namely, that the indictment was not evidence, but that it merely contained charges which if not established by the evidence must be ignored. And it is not pretended that any proof was offered to establish the existence of the alleged statutory provision. Likewise, both at the opening of the trial and again in the final charge, the jurors were specifically and clearly instructed that the defendants were not charged with a violation of either the Prohibition Act or the Tariff Act, and however much they might be convinced by the evidence that the defendants, or any one of them, had been guilty of violating the provisions of these acts, they could "not be found guilty of that, but only of the thing which is here charged, and that is a violation of section 37 of the Criminal Code of the United States, to wit, a conspiracy." And thereupon, in the final instructions, the court read section 37 (Comp. St. § 10201), being the conspiracy statute, and elaborately and fairly explained its meaning, and what must be proved before a conviction could be had thereunder. While the record contains no direct statement upon the subject, if, as we are inclined to do, we infer that the indictment went to the jury room, it is quite improbable that the jurors gave any consideration to the objectionable averment, and that in the face of the instructions they gave any effect to the alleged presumption is wholly incredible.

It was not error to decline defendant Parente's requested instruction VIII, advising the jury that "the presumptions of law set forth in the National Prohibition Act and the Tariff Act of 1922 have no application," for the reason, first, that the subject was sufficiently covered by the instructions given, and, second, the request was too broad and indefinite.

No abuse of the court's discretion is shown in the manner of impaneling the jury and the interrogation of jurors touching their qualifications. The facts are not substantially unlike those recited in Bradshaw v. United States (C. C. A.) 15 F.(2d) 970, 971.

It is urged, especially by Parente, that the court unduly restricted the cross-examination of certain witnesses, more particularly Fesca, Martin, and Crivello. Every litigant is to be accorded a fair opportunity to test his opponent's case by cross-examination of his witnesses. "The right to a reasonable opportunity for cross-examination at an appropriate stage and in relation to matters then open for consideration is undisputed in any quarter." Chamberlayne's Handbook on Evidence, § 172. But, as implied in the definition, the right is not unlimited, and of necessity the manner and extent of its exercise must in a large measure be left to the sound discretion of the trial court. We find here no abuse of that discretion.

Generally it is undesirable for more than one attorney of a single litigant either to examine or to cross-examine the same witness, and especially was it objectionable here, where there were so many defendants, each asserting the right to cross-examine. Ordinarily, where a witness has been passed, subject to cross-examination upon a specified point, the court is not bound, upon his recall, to permit additional examination upon other points. These were matters clearly within the discretion of the court. Adequately to exhibit the other instances where the cross-examination was restricted, it would be necessary to explain at length the circumstances, if not to set forth the larger part of the entire testimony given by the witnesses, and this would be impracticable. Upon a full examination it will appear that in some cases, a striking example of which is the subject of Fesca's nativity and citizenship, if there is any ground for criticism at all, it is that the court was overindulgent. The best test, perhaps, is to be found in a consecutive reading of the...