Vachuda v. United States
| Decision Date | 15 August 1927 |
| Docket Number | No. 393.,393. |
| Citation | 21 F.2d 409 |
| Parties | VACHUDA v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
David V. Cahill and Townsend Morgan, both of New York City, for plaintiff in error Webber.
Isaiah Leebove, of New York City, for plaintiff in error Vachuda.
Charles H. Tuttle, U. S. Atty., of New York City (Edward S. Silver, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
This indictment of six counts charged violations of subdivision C, § 2, of the Act of May 26, 1922 (42 Stat. 596), amended June 7, 1924 (43 Stat. 657 Comp. St. § 8801; 21 USCA § 174); sections 591-593 (b) of the Tariff Act of 1922 (Comp. St. §§ 5841h10-5841h13; 19 USCA §§ 493, 495-497); section 1 of the Act of December 17, 1914 (38 Stat. 785, as amended Comp. St. § 6287g); and section 37 of the United States Criminal Code (Comp. St. § 10201; 18 USCA § 88). A severance as to counts 4 and 5 was granted, and a conviction had on the remaining counts. The total sentence Vachuda must serve is 8 years; Webber must serve 14 years. The first count charged unlawful importation of narcotic drugs; the second, unlawful and fraudulent concealment of the same drugs with knowledge that they had been unlawfully imported into the United States; the third count, with unlawfully and knowingly introducing into the commerce of the United States the same drugs by a fraudulent scheme; the sixth count, a conspiracy to commit the substantive offense as set forth in counts 1 and 2 and to violate section 1 of the Harrison Anti-Narcotic Act (38 Stat. 785, 40 Stat. 1130, as re-enacted by 42 Stat. 298 Comp. St. § 6287g; 26 USCA § 211).
The plan formulated and executed by the plaintiffs in error consisted of importing five cases of heroin and morphine as bowling balls and pins for transshipment to Kobe, Japan. Other cases, five in number, similar in size, weight, and description, in point of fact containing bowling balls and pins, were prepared at No. 87 Walker street, New York City. The imported five cases were taken to this address, and there a substitution of the other five cases actually containing the bowling balls and pins was made, and the five cases of narcotics were retained at that address. The plaintiff in error Vachuda made an effort to lease the sixth floor of 87 Walker street under the alias of William Fox, as president of the American Novelty Company. His references were unsatisfactory. Thereupon he told the lessors that William J. Kern (which was an alias for plaintiff in error Webber) would take the lease. The lease was signed "William J. Kern." Thereafter Vachuda was known as Fox about the building, and Webber was known as Kern. Both were at the place about once or twice a week. On the occasion of Webber's first visit to the building, Vachuda stated to the superintendent of the building that Webber (known as Kern) was the "boss."
The arrest of the plaintiffs in error took place on June 12, 1926, and on that day Webber was at the premises about 20 minutes. On leaving, he told the superintendent that he would be back in half an hour. In the meantime, the boxes arrived and Vachuda and others were engaged in unloading them when the government agents appeared. Vachuda, upon being questioned, stated that he was but a workman there, and that his employer was a man named "Wessman," whom he described unsatisfactorily, and who has never made an appearance in the case. He said he did not know who paid him. He was then searched, and a chauffeur's license bearing the name William Vachuda was found, and he admitted this to be his correct name. Two codes used in the operation of the business were also found upon his person. While this was going on, the telephone bell rang, and Vachuda answered the telephone and said, over the telephone, that he had not finished marking the cases, and hung up. When asked what the telephone message was, he stated the party at the other end asked him what was the delay in sending out the cases.
Later the telephone bell rang again and Vachuda answered. The government agent requested him to "ask the party on the other end to come up," but Vachuda said he would not come up, but would meet them at Broadway and Walker street, "outside the cigar store." Then the agent asked who was at the other end, and Vachuda replied, "the boss." Later the agent proceeded west on Broadway with Vachuda and met plaintiff in error Webber. Webber asked the agent who he was, and he told him he was a government officer. The agent asked Webber what he was doing, and he said, "Just out for a walk." When asked where he lived, he stated, "On Twenty-Third street." (In truth he lived at the Hamilton Hotel on Seventy-Third street, New York City.) Later he was placed under arrest. He was identified by the superintendent and by Vachuda as the man known as Kern. His lawyer appeared on the premises before the men were placed under arrest and taken away.
At 87 Walker street there were no paraphernalia, books, or files that might be regarded as used in a legitimate business. One of the codefendants, who was found guilty, but who has not sued out a writ of error, typed letters and necessary documents to enable the custom brokers to arrange for the shipment of the five cases of bowling balls and pins, ostensibly for transportation from New York to Kobe, Japan, at the office of the trucking company which transferred the boxes. These, as a matter of fact, contained the morphine and heroin. The brokers arranged for the transshipment on the morning of July 12th, and the truckman was directed to pick up the cases at Pier 58 North River, pass through Walker street, and deliver them at No. 87, and there pick up five cases to be taken to Pier 4, Bush Terminal.
One of the codes found upon Vachuda when arrested consisted of 25 pages, and was such as might be used in an ordinary private business code. An application for a cable address was signed by Vachuda, and he gave his home address as 312 East Seventy-Third street, New York City. A cablegram sent to "Jamajor, New York," was forwarded to James Major at Vachuda's address. This was deciphered and stated:
At Vachuda's home, on the letter box, were the names Kern and Major. These were pulled off the letter box the day a newspaper article appeared with reference to this arrest. At the Hotel Hamilton, Webber's room number was 316 from August, 1924, to August, 1926. There were telephone calls connecting this room number to Vachuda's home and to the trucking company which made the delivery in question; one on the day of the arrival of the cases of narcotics on the steamship Arabic. Vachuda admitted on cross-examination that, under the name of Charles Cook, he opened a bank account and deposited...
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