240 F.2d 270 (8th Cir. 1957), 15645, Kleven v. United States

Docket Nº:15645.
Citation:240 F.2d 270
Party Name:Eddie B. KLEVEN and Maynard W. Maetzold, Appellants, v. UNITED STATES of America, Appellee.
Case Date:January 22, 1957
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 270

240 F.2d 270 (8th Cir. 1957)

Eddie B. KLEVEN and Maynard W. Maetzold, Appellants,


UNITED STATES of America, Appellee.

No. 15645.

United States Court of Appeals, Eighth Circuit.

January 22, 1957

Rehearing Denied Feb. 26, 1957.

Page 271

John C. Haugland, Devils Lake, N.D. (Clyde Duffy and Duffy & Haugland, Devils Lake, N.D., were on the brief), for appellants.

Robert Vogel, U.S. Atty., Fargo, N.D. (Ralph B. Maxwell, Asst. U.S. Atty., Fargo, N.D., was with him on the brief), for appellee.

Before GARDNER, Chief Judge, and VAN OOSTERHOUT and WHITTAKER, Circuit Judges.

WHITTAKER, Circuit Judge

Appellants, Kleven and Maetzold, were severally charged, in separate counts of an indictment, with having violated Section 545, Title 18 U.S.C., in the District of North Dakota, through dealings alleged to have been had by them in and with certain Selkirk seed wheat, known by them to have been unlawfully brought from Canada into the United States. The pertinent provisions of that statute are:

'Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law--

'Shall be fined not more than $10, 000 or imprisoned not more than five years, or both.'

Kleven was charged-- in Count I-- with having concealed, on December 17, 1954, 60 bushels, and-- in Count III-- with having purchased, on December 22, 1954, 20 bushels, and-- in Count V-- with having, on January 22, 1955, facilitated the transportation of 44 bushels, of such wheat, and Maetzold was charged-- in Count II-- with having purchased, on December 17, 1954, 60 bushels, and-- in Count IV-- with having purchased, on December 22, 1954, 80 bushels, of such wheat, all with knowledge that the wheat had been unlawfully brought from Canada into the United States, and in violation of the statute.

Appellants moved to dismiss the indictment upon the ground of improer joinder of offenses and defendants. That motion was overruled, and the case was put to trial before a jury.

The jury's verdict found Kleven not guilty on Count I, and found Maetzold not guilty on Count II, but found Kleven guilty on Counts III and V, and found Maetzold guilty on Count IV. The Court, after overruling timely motion for new trial entered judgment upon the verdict, fining appellants $500 each, and they have appealed from that judgment.

The points urged for reversal are (1) that the Court erred in denying their motion to dismiss the indictment for improper joinder of offenses and defendants, (2) that the evidence was not sufficient to support the verdict, (3) that the Court erred in giving a supplemental charge to the jury urging them to reach a verdict, (4) that the Court erred in permitting the jury to disband, after submission of the case to them, without proper admonition, and (5) concealment of possible prejudice by a juror.

Appellants are North Dakota wheat farmers. For years they, as others, had suffered severe crop damage from Black Stem rust. A new variety of wheat, known as Selkirk, and highly resistant

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to that disease, had been developed in Canada, but, because of the limited supply, the Canadian government, in August, 1954, imposed an embargo on its exportation, and it was, therefore, difficult to obtain in North Dakota.

There was evidence that, following a conference between one Laliberte, a Canadian farmer, and appellants, at Devil's Lake, North Dakota, Laliberte, in Canada, concealed 60 bushels of sacked Selkirk wheat in a truckload of baled flaxstraw, and, on December 17, 1954, brought it through...

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