United States v. Poller, 393.

• Decision Date: 28 July 1930
• Docket Number: No. 393.,393.
• Citation: 43 F.2d 911
• Parties: UNITED STATES v. POLLER.
• Court: U.S. Court of Appeals — Second Circuit

43 F.2d 911 (1930)

UNITED STATES v. POLLER.

No. 393.

Circuit Court of Appeals, Second Circuit.

July 28, 1930.

Charles H. Tuttle, U. S. Atty., of New York City (Alvin McKinley Sylvester, Asst. U. S. Atty., of New York City, of counsel), for appellant.

Horace G. Marks, of New York City, for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

Poller was a bonded truckman, doing business in the city of New York, under a license of the Treasury, which allowed him to take imported goods from the local customs authorities. These had suspected that Swiss watch movements were being imported in fraud of the customs, manifested as chocolate sweets, and that a case of this sort had been shipped, marked "L. A. B. #2," which would be so manifested. They also learned that Poller had filed an "in transit" permit for this case, which would allow it to be taken and carried in bond to Philadelphia, where it would first be examined. The ship's manifest showed that the case was consigned to Poller; the permit, that he had entered it and that it would be taken by his truck. Upon its arrival they opened the case, found that it contained watch movements, and closed it again. It remained two days on the wharf, no one coming to get it, though one of Poller's truckmen had originally called for it before it was unladen.

A customs agent then went to Poller's place of business, a small shanty a few feet square, and asked him why he had not called for the case. Poller said that he had had a "tip" not to go near it. Two more agents then entered, to whom Poller refused to say any more, upon which he was placed under arrest. The agents then searched the shanty and seized the documents here in question. These consisted of a carrier's customs manifest for the case, to be shipped by Poller to Philadelphia, a letter of his to the delivery clerk of the steamer asking delivery to his truckman, an "in transit" entry made by him for the case in bond, a notification by the French Line to him that the case was manifested to him, a bill of lading from him as agent for one, Bieshuns, to a Philadelphia forwarding company, a letter from Bieshuns notifying him that the case would arrive, an invoice of the case to him from the French consignor, and a statement of the charges of the customs broker. Some invoices and "in transit" entries in Poller's name for earlier cases of chocolates were also seized, and a time book, a memorandum book, a cheque book, a note book bearing another name and some indifferent correspondence. Poller was arraigned before a commissioner and held to bail. The papers having come into the possession of the district attorney, he obtained an order to show cause why they should not be returned, and, before the case was finally submitted, he was indicted. The District Judge held that the arrest was lawful, but that the papers should be returned, on the ground that our decision in U. S. v. Kirschenblatt (C. C. A.) 16 F.(2d) 202, 51 A. L. R. 416, was controlling, and had not been overruled by Marron v. U. S., 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231. The United States appealed, and the questions involved are three: Whether the order was appealable; whether the arrest was lawful; whether the papers could be seized, and, if so, how many of them.

If this proceeding had been concluded before indictment found, the order would certainly have been appealable. Perlman v. U. S., 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950; Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159. The point here taken is that Poller was indicted before final submission of the proceeding; that immediately upon indictment found, it became a part of the prosecution. Or, if that be not true, then in any event that Poller was arraigned before a commissioner and held to bail before the proceeding was even started. As to the second objection, it is enough to say that the proceedings before the commissioner were in no event part of the prosecution, nor indeed was the commissioner a court at all. Todd v. U. S., 158 U. S. 278, 15 S. Ct. 889, 39 L. Ed. 982; Kirvin v. U. S., 5 F.(2d) 282 (C. C. A. 2). In Perlman v. U. S., for example, the motion was made after arrest. Conceivably it might be held that the proceeding became merged in the indictment, but the result would be to make the appealability of the order depend upon the diligence of the prosecution of the proceeding or of the judge in deciding it, either of which is an unsatisfactory test. It seems to us more reasonable to say that it is the time of its initiation which counts, and for this we have the language of the opinion in Cogen v. U. S., 278 U. S. 221, 225, 49 S. Ct. 118, 73 L. Ed. 275, and our own decision in U. S. v. Gowen, 40 F.(2d) 593. The last it is perhaps not fair to use, as apparently the point was not raised, but the first, though obiter, we must follow. Justice Brandeis in that case was laying down the principles which were to control on a question which had been much vexed theretofore; we may not assume that his language was lightly used, especially when independently we should decide the same way, if we were free. We hold therefore that it is the beginning of the proceeding which determines the appealability of the order, and that, since this was before indictment, we have jurisdiction of the cause.

We agree with the District Judge that the arrest was lawful, on the ground that the agents had reasonable cause to believe that Poller had committed a felony by trying to enter goods into the United States by means of false documents (section 491, title 19, U. S. Code 19 USCA § 491), and conspiring with others to do so. As soon as the case was opened and the truth known, there could of course be no doubt that somebody was committing that crime, and the only question was of Poller's connection with the guilty parties. It is indeed true that his guilt did not appear beyond peradventure; he might still have been no more than an innocent tool of the real principals. However, while suspicion is not enough, reasonable grounds of belief fade into it imperceptibly; and it appears to us that the agents here were on the right side. The substitution of chocolates must be made in New York or Philadelphia before the case was opened. The principals had selected Poller before the goods arrived; he was the consignee and he got out the "in transit" entry. There had been obviously a concert between them even before the case had been...