United States v. Simons

• Decision Date: 20 June 1881
• Citation: 7 F. 709
• Parties: UNITED STATES v. SIMONS and another.
• Court: U.S. District Court — Eastern District of Michigan

7 F. 709

UNITED STATES v. SIMONS and another.

United States District Court, E.D. Michigan.

June 20, 1881

Upon petition of John Brakeman and John B. Stadler for the informer's share of a fine of $2,000 imposed upon Simons and Burnstine. So far as Brakeman is concerned, the facts were that during the fall of 1880 he was employed by General Spalding, special agent of the treasury department, to ferret out certain supposed rag-smuggling operations along St. Clair river. In the progress of his researches he discovered, from an examination of the books of the railway at St. Clair, and from statements made by the agents of the road, that Morris Brown, Samuel Lewis, and one Fink were smuggling rags at St Clair and shipping them to one Applebaum, at Detroit. This information being communicated to the collector at Port Huron, Lewis, Brown, and Fink were arrested. Upon their examination, they, or one of them, disclosed the fact that they had been hired by Applebaum to buy the rags and smuggle them over for his benefit. Upon these statements Applebaum was arrested for aiding and assisting in the illegal importation, and gave bail for his appearance. Before the day set for the hearing of his case before the commissioner Applebaum went before the district attorney and made a full confession of his connection with the smuggling transactions and disclosed the fact that Simons and Burnstine, the defendants, were his principals; that they had employed him to get the rags smuggled across the river, and had received them in Detroit,-- the rags first going to Applebaum's barn, where they were repacked and then taken to Simons & Co.'s warehouse. This statement was reduced to writing by Applebaum a day or two afterwards. He also stated that he made these disclosures relative to Simons &amp Co. for the sole reason that they had failed to keep their promise to him to protect him if caught, and to employ counsel for his defense, and that he was not going to suffer alone. A complaint was then made against Simons and Burnstine for aiding and assisting in smuggling the rags above mentioned, to which they signed a nolo contendere and paid a find of $2,000. The petition and affidavits on behalf of Stadler show that one Jacobs came to him and told him that his son-in-law, Applebaum, was in trouble; that he had been arrested for smuggling, etc. After some conversation with the deputy marshal, Stadler advised Jacobs to induce Applebaum to make a full confession of his connection with the transaction, and that he might in that way save himself from prosecution. In pursuance of this suggestion, Applebaum confessed, and implicated defendants.

BROWN, D.J.

Section 4 of the act of June 22, 1874 (18 St.at Large, 186,) provides:

'That whenever any person not an officer of the United States shall furnish to a district attorney, or to any chief officer of the customs, original information concerning any fraud upon the customs revenue, perpetrated or contemplated, which shall lead to the recovery of any duties withheld, or of any fine, penalty, or forfeiture incurred, whether by importers or their agents, or by any officer or person employed in the customs service, such compensation may, upon such recovery, be paid to such person so furnishing information, as shall be just and reasonable,' etc.

Section 6: 'That no payment shall be made to any person furnishing information in any case wherein judicial proceedings shall have been instituted, unless his claim to compensation shall have been established to the satisfaction of the court, or judge having cognizance of such proceedings, and the value of his services, duly certified by the said court or judge for the information of the secretary of the treasury.'

It is well settled that in a contest between informers he is the informer who, with the intention of having his information acted upon, first gives information of a violation of law, which induces the prosecution, and contributes to the recovery of the fine, penalty, or forfeiture which is eventually recovered. U.S. v. George, 6 Blatchf. 406; Sawyer v. Steele, 3 Wash. 464; City Bank v. Bangs, 2 Edw.Ch. 95; Lancaster v. Walch, 4 M. & W. 16; U.S. v. Isla de Cuba, 2 Cliff. 458; 100 Barrels of Whiskey, 2 Ben. 14; 50,000 Cigars, 1 Low. 22.

The fact that a person has procured valuable testimony, making a strong case against the offenders, but for which it is indeed doubtful whether any conviction could have been had, or any money recovered from them, does not entitle the person procuring such testimony to any portion of the fine, where the fraud has been discovered and disclosed by others, and proceedings have been commenced in pursuance of that information. The statute gives the informer's share to the one who furnishes the original information which shall lead to the recovery of the fine, but, whether justly or unjustly, awards nothing...