Bilodeau v. United States

• Citation: 14 F.2d 582
• Decision Date: 11 October 1926
• Docket Number: No. 4801.,4801.
• Parties: BILODEAU et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

14 F.2d 582 (1926)

BILODEAU et al. v. UNITED STATES.

No. 4801.

Circuit Court of Appeals, Ninth Circuit.

September 7, 1926.

Rehearing Denied October 11, 1926.

Anthony S. Devoto and John J. Barrett, both of San Francisco, Cal., for plaintiffs in error Bilodeau and Sword.

Robert B. McMillan and Samuel M. Samter, both of San Francisco, Cal., for plaintiff in error Frank.

John D. Harloe, of San Francisco, Cal., for plaintiff in error Everett.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge.

The plaintiffs in error were convicted under an indictment which charged that they, together with Max Hoffman and Walter Young, conspired to secure possession of denatured alcohol free of internal revenue tax, with the intent and for the purpose of willfully, unlawfully, etc., recovering and attempting to recover by redistillation the alcohol so secured by them, and knowingly to conceal and dispose of the same, in violation of section 2 of the Act of Congress of June 7, 1906 (Comp. St. § 6118), and the indictment alleged that the defendants were not manufacturers employing processes in which alcohol used free of tax under any of the provisions of the aforesaid act is expressed or evaporated from the articles manufactured, and that they were not authorized or permitted to recover or attempt to recover such denatured alcohol, to wit, alcohol rendered unfit for beverage or liquid medicinal purposes. The indictment proceeded to set forth a series of overt acts alleged to have been committed in pursuance of the conspiracy. The defendant Hoffman failed to appear for trial and his bond was forfeited. Young pleaded guilty and testified for the prosecution.

It is contended that the indictment is insufficient to charge an offense against the United States, that it is laid under the provisions of the Act of June 7, 1906, which act was impliedly repealed by the National Prohibition Act (Comp. St. § 10138¼ et seq.), and was not reinstated by the Act of November 23, 1921, known as the Willis-Campbell Act, 42 Stat. 222, and United States v. Yuginovich, 256 U. S. 450, 41 S. Ct. 551, 65 L. Ed. 1043, Selzman v. United States, 268 U. S. 466, 45 S. Ct. 574, 69 L. Ed. 1054, and United States v. Stafoff, 260 U. S. 477, 43 S. Ct. 197, 67 L. Ed. 358, are cited. In the Yuginovich Case it was held that section 3257 of the Revised Statutes (Comp. St. § 5993), was by the National Prohibition Law superseded as respects persons manufacturing spirits for beverage purposes, and that section 3279 (section 6019), requiring distillers of spirits to exhibit a sign "Registered Distillery," and section 3281 (section 6021), making it an offense to carry on the business of a distillery without giving bond, and section 3282 (section 6022), punishing the making of mash in a building other than an authorized distillery, were also superseded by the National Prohibition Law in so far as concerns the production of intoxicating liquor for beverage purposes. We cannot agree that the decision affirms any principle applicable to the contention that the act of 1906 was superseded or repealed. Nor do we find that the decision in the Selzman Case holds by implication that the Act of June 7, 1906, was repealed by the National Prohibition Act. We think the decision goes no farther than to hold that under the Eighteenth Amendment Congress has power to prevent or regulate the sale of denatured alcohol which is not usable as a beverage, and that such power rests upon the ground that authority to enforce the prohibition of manufacture, sale, or transportation of intoxicating liquor, carries with it the power to enact any legislation reasonably adapted to promote that purpose. But however that may be, we deem the question immaterial in so far as the present case is concerned, for the Willis-Campbell Act was passed by Congress with a special view to remedy the situation found to exist in the Yuginovich Case. Section 5 of that act (Comp. St. § 10138 4/5c) provides: "That all laws in regard to the manufacture and taxation of and traffic in intoxicating liquor, and all penalties for violations of such laws that were in force when the National Prohibition Act was enacted, shall be and continue in force, as to both beverage and nonbeverage liquor, except such provisions of such laws as are directly in conflict with any provision of the National Prohibition Act or of this act." In the Stafoff Case the court held that the accused could not be held for violation of section 3258, Rev. Stats. (Comp. St. § 5994) for acts committed prior to the date of the Willis-Campbell Act, and that the said act could not give a retrospective criminality to acts that were done before it was passed. It is to be observed that in that case three of the counts of the indictment charged acts subsequent to the Willis-Campbell Act, and as to those the court said: "But the supplemental act that we have quoted puts a new face upon later dealings. From the time that it went into effect it had the same operation as if instead of saying that the laws referred to shall continue in force it had enacted them in terms. The form of words is not material when Congress manifests its will that certain rules shall govern henceforth."

We find nothing in the National Prohibition Act which is "directly in conflict" with those provisions of the act of 1906 which are here the basis of the charge of conspiracy. Section 2 of that act prohibits the withdrawal of alcohol free of tax for manufacturing any beverage, and prohibits the recovery or the attempt to recover by redistillation any denatured alcohol, and prescribes the punishment for such acts. No provision of the National Prohibition Law refers to the same subject or is directly in conflict therewith. Even prior to the Willis-Campbell Act the Secretary of the Treasury, in issuing regulations under authority of section 15, title 3, of the National Prohibition Act (Comp. St. § 10138¾n), included the Act of June 7, 1906, as unrepealed, and set forth the provisions thereof. We hold that the indictment was sufficient.

Error is assigned to the denial of the motion of the plaintiffs in error for an instructed verdict of acquittal and an exhaustive discussion of the evidence is presented. The principal contention is that there was failure of proof that Sword and Bilodeau were members of the conspiracy. The argument is directed rather to the weight of the evidence than to the question whether there was any evidence to go to the jury tending to prove the guilt of the accused. Sword and Bilodeau were dealers in drugs and chemicals. There was direct testimony of the witness Feigen of discussion with Sword and Bilodeau concerning the recovery of the ingredients of denatured alcohol and the method to be pursued in removing zinc sulphocarbolate; that Bilodeau suggested a chemical that would remove it: that it was agreed that Feigen should test that chemical and ascertain whether it could be successfully used; that after he tested it it was agreed that he could get from Sword and Bilodeau 400 gallons a month, and he promised them that in case he was caught he would take care of himself. There was proof also that Young was engaged in obtaining denatured alcohol from Sword and Bilodeau. But it is urged that there was absence of evidence that Sword and Bilodeau knew of the illegal use to which the alcohol was to be applied or evidence that they participated in the profits thereof. There was evidence that they knew that Young was engaged in delivering from them to Everett large quantities of denatured alcohol in bottles. Young testified that Bilodeau furnished him fictitious invoices of the bottles, invoices purporting to show that the bottles were to be delivered to various known druggists in San Francisco, and that he instructed Young, if intercepted by any federal officer or prohibition agent, to say that he was an expressman delivering to certain drug stores, and to exhibit the invoices and thereafter return the invoices to him; that, when Young asked him what he was to do in case he was caught coming back with the empty bottles, Bilodeau said, "Well, you are just simply an expressman and you are taking them to Lefkovitz or any other bottle dealer to sell." The only evidence that Sword and Bilodeau received profits from the transactions was the fact that they received $4 a gallon for denatured alcohol that cost them 90 cents a gallon. It is...