51 F.2d 911 (3rd Cir. 1931), 4549, Pomerantz v. United States

Docket Nº:4549.
Citation:51 F.2d 911
Case Date:August 21, 1931
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 911

51 F.2d 911 (3rd Cir. 1931)




No. 4549.

United States Court of Appeals, Third Circuit.

August 21, 1931

B. D. Oliensis, of Philadelphia, Pa., for appellant.

Paul Freeman, Asst. U.S. Atty., of Philadelphia, Pa., and Raymond S. Norris, Sp. Asst. to Atty. Gen.

Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

Pomerantz and others were convicted in the District Court for the Eastern District of Pennsylvania of conspiracy to violate the National Prohibition Act. The case is brought to this court on appeal by Pomerantz alone.

He and his codefendants were indicted on December 14, 1927, in the District of Delaware on the charge of conspiracy to violate the National Prohibition Act. On September 5, 1929, while the indictment was pend no in Delaware, they were indicted for the same offense in the Eastern District of Pennsylvania. The defendants moved the court to quash the indictment then pending in the Pennsylvania district. The motion was denied. Thereupon the Attorney General elected to proceed in Pennsylvania and the defendants were accordingly brought to trial in that District. The indictment in Delaware was nolle prossed six days after the return of the indictment in Pennsylvania.

The appellant insists that the lower court was without power to entertain the indictment on which he was convicted, for the reason that at the time of the return of the indictment in Pennsylvania there was an indictment pending in the district of Delaware charging the same offense; that the 'prior jurisdiction of the District Court for the District of Delaware was exclusive, and that as long as the indictment was pending there, no other federal court might take cognizance of the matter.'

These contentions are answered by the Supreme Court in the case of Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 251, 54 L.Ed. 569, 17 Ann.Cas. 1112, wherein it was said:

Page 912

'But, if indicted in two or more districts, there must be an election as to where the defendant shall be tried. Primarily, this is the right and duty of the Attorney General, or those action by his authority. * * *

'But if the fact be that the offense charged in both sets of indictments is identical, and that the locus of the conspiracy is laid in one set as in one district and in the other as in a different district, it is still for the government to determine in which of the two districts it will bring the accused to trial, and of the commissioner to determine whether a prima facie case has been shown that the accused had probably committed an offense in the District of Columbia, which was indictable and triable there.'

The appellant's second objection is that the evidence is legally insufficient to warrant a conviction.

The government contends that the appellant was a party to a conspiracy to manufacture potable alcohol at the plant of the Rayon Silk Company of America, at Chester, Pa.; that the government thwarted the conspirators' original plan to use specially denatured alcohol, which is comparatively easy to redistill, and forced them to use completely denatured alcohol; that they devised a system to cover up their operations and the use of such large quantities of alcohol by organizing in Wilmington, Del., an alleged distributing company, called the 'Delaware Distributing Company,' to which they consigned truckloads of completely denatured alcohol; that, if a truck en route from Philadelphia, where the alcohol was obtained, to Chester, was seized and detained, it could...

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