Borgia v. United States, No. 7670.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtWILBUR, GARRECHT, and DENMAN, Circuit
Citation78 F.2d 550
Decision Date09 July 1935
Docket NumberNo. 7670.
PartiesBORGIA v. UNITED STATES.

78 F.2d 550 (1935)

BORGIA
v.
UNITED STATES.
*

No. 7670.

Circuit Court of Appeals, Ninth Circuit.

July 9, 1935.


78 F.2d 551

Otto Christensen, of Los Angeles, Cal., for appellant.

Peirson M. Hall, U. S. Atty., Jack L. Powell, Asst. U. S. Atty., both of Los Angeles, Cal., for the United States.

Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.

GARRECHT, Circuit Judge.

Appellant, Frank Borgia, and four others, one of whom was Ed Capece, alias Frank Staccio, were indicted, charged with attempting to defraud the United States of the tax on spirits distilled by them; with possession and custody of a still and distilling apparatus not registered with the Collector of Internal Revenue; failure to give said Collector of Internal Revenue notice of such business; with carrying on business as distillers with intent to defraud the United States of the tax on spirits distilled by them; with making and fermenting sugar mash fit for distillation and for the production of spirits in a building other than a distillery duly authorized according to law; and with conspiracy to violate the internal revenue laws of the United States. A second indictment filed about forty-five days later also charged conspiracy, setting forth overt acts. 26 USCA §§ 261, 281, 282, 306, 307; 18 USCA § 88. Demurrer was interposed as to each indictment and was overruled in each instance, except that the demurrer was sustained as to the conspiracy count in the first indictment.

All defendants, save Borgia, pleaded guilty. Borgia pleaded not guilty and proceeded to trial under consolidated indictments. He was found guilty on all counts and judgment entered. Defendant brings this appeal.

On the night of September 22, 1933, dug in the desert near the edge of Muroc Dry Lake, Kern county, Cal., officers found a pit, in length about 200 feet, in width about 80 feet, and 8 feet in depth, roofed with corrugated iron, which was covered with sand and sage brush, so as to make it inconspicuous. The inside of the pit was equipped as a distillery — copper columns, steam boiler, pumps, engine, and a number of redwood vats. These vats were nearly all full of fermenting mash. Four men were present and were taken into custody. Shortly thereafter, one of the officers, leaving the premises, heard the approach of an automobile, which stopped, the driver getting out. As the officer neared him, he ran off and escaped in the darkness. In the truck were a number of new five-gallon cans and fifteen boxes of compressed yeast, from which the labels had been removed by scraping. On cross-examination, the officer who gave the above testimony was able to describe the equipment and give the name of the manufacturer of most of it. It was further brought out that the distillery was located near Muroc, a small town in Kern county with a population of about 100, on the Santa Fe Railway between Mojave and Barstow.

Other witnesses testified over objection of counsel for defendant, as to purchases of sugar, yeast, cans, and redwood tanks by the Italian Wholesale Grocery Company, conducted under that name by Frank Borgia, appellant herein.

It was testified by an adjuster for an automobile finance company that his company received a payment from the Italian Wholesale Grocery Company on an automobile purchased by one Frank Staccio. Another witness, also an adjuster for an automobile finance company, testified that he called at the Italian Wholesale Grocery Company to make a collection on a contract for purchase of a truck by Frank Staccio, was told that Staccio was not in, left his card, and shortly thereafter payment was made.

Two police officers testified that following an automobile accident in the city of Burbank, Cal., at 4:40 a. m. August 21, 1933, in which a truck carrying cans of alcohol was wrecked, that a person calling himself Frank Staccio presented himself at

78 F.2d 552
the police station saying, "I am the driver of the truck, and want to give myself up." He was placed under arrest and booked for possession

The freight agent for the Santa Fe Railway at Muroc testified as to numerous shipments of sugar arriving there and that they were unloaded at night.

It was also testified that a few of the boxes of yeast found at the distillery showed the label of the "Consumers Yeast Company," which was the same company from which the Italian Wholesale Grocery Company purchased yeast. The labels had been scraped from the other boxes of yeast found in the pit near Muroc.

The manager of the bank at which the grocery company kept its account testified that the ledger card reflected the clearing of two checks for $39, the amount of the contract payments on the truck.

Another witness testified that a carload of sugar billed from Crockett to Muroc was diverted at Bakersfield to the Italian Wholesale Grocery Company at Los Angeles. This was on or about September 25, 1933. The shipment apparently was made on September 22d and was prepaid.

It also appeared that the Italian Wholesale Grocery Company purchased large quantities of five-gallon cans; that it had purchased six redwood tanks which were the exact duplicates of the six redwood tanks of a particular size found at the still and that those tanks bore the initials of the company from which the grocery company had purchased the six tanks; that it had purchased within a day or two preceding the raid 15 fifty-eight-pound boxes of compressed yeast and that 15 fifty-eight-pound boxes of compressed yeast were found on the truck abandoned at the still on the night of the raid; and that 175 five-gallon cans were found on said truck and that the grocery company had very shortly before purchased from the manufacturer over 200 cans of a similar size.

Throughout the trial counsel for defendant objected to the admission in evidence of the testimony given and at the conclusion of the government's case moved to strike. The objections were overruled and the motion to strike denied; exception was taken to the denial. Motion for directed verdict was also denied and exception taken.

It appears that the offenses charged took place in the Northern Division of the Southern District of California. The appellant claims that the indictment should have been returned by the grand jury of the Northern Division of the Southern District of California. The federal grand jury for the Northern Division of the Southern District of California, October term, 1934, was impaneled October 8, 1934, and, from the certificate of the clerk of the District Court, had not been discharged on October 18, 1934. The indictments herein were found by the grand jury in the Central Division of the said district and filed, that in No. 1776, on August 30, 1934, and that in No 1790, on October 17, 1934. Appellant's point is that inasmuch as there was a grand jury impaneled and subject to call in the Northern Division and that the alleged crimes were committed there, the grand jury in the Central Division was without power to return the indictments herein.

It is said in section 53 of the Judicial Code (28 USCA § 114) that "all prosecutions for crimes or offenses shall be had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district."

The Supreme Court, in Salinger v. Loisel, 265 U. S. 224, 236, 237, 44 S. Ct. 519, 523, 68 L. Ed. 989, said:

"The contention is that the word `prosecution'...

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20 practice notes
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • May 9, 1958
    ...from the lack of relevance and materiality, see 56 Yale L.Jnl. at 627, and the teachings contra of Borgia v. United States, 9 Cir., 1935, 78 F.2d 550, 554, certiorari denied 296 U.S. 615, 56 S.Ct. 135, 80 L.Ed. 436; Brown v. Bahl, 1934, 111 Pa.Super. 598, at pages 601-602, 170 A. 346; Commo......
  • Stewart v. United States, No. 12944.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 18, 1957
    ...States, 8 Cir., 1947, 160 F.2d 757; Pietch v. United States, 10 Cir., 1940, 110 F.2d 817, 129 A.L.R. 563; Borgia v. United States, 9 Cir., 78 F.2d 550, certiorari denied, 1935, 296 U.S. 615, 56 S.Ct. 135, 80 L.Ed. 436; DeBonis v. United States, 6 Cir., 1931, 54 F.2d 3, certiorari denied, 19......
  • United States v. Harrison, No. 7498.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 24, 1941
    ...A Conspiracy Is Co-conspirator, 12 Minnesota Law Review 77; Zito v. United States, 7 Cir., 64 F.2d 772; Borgia v. United States, 9 Cir., 78 F.2d 550; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975; Backun v. United States, 4 Cir., 112 F. 2d 635. 8 See footnote 7 above; United ......
  • Snead v. United States, No. 6874.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 10, 1954
    ...courts. Pattis v. United States, 9 Cir., 17 F.2d 562; Vukich v. United States, 9 Cir., 28 F.2d 666, 669; Borgia v. United States, 9 Cir., 78 F.2d 550, 555; Anstess v. United States, 7 Cir., 22 F.2d 594; Hubinger Co. v. United States, 7 Cir., 64 F.2d 772; Rudner v. United States, 6 Cir., 281......
  • Request a trial to view additional results
20 cases
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • May 9, 1958
    ...from the lack of relevance and materiality, see 56 Yale L.Jnl. at 627, and the teachings contra of Borgia v. United States, 9 Cir., 1935, 78 F.2d 550, 554, certiorari denied 296 U.S. 615, 56 S.Ct. 135, 80 L.Ed. 436; Brown v. Bahl, 1934, 111 Pa.Super. 598, at pages 601-602, 170 A. 346; Commo......
  • Stewart v. United States, No. 12944.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 18, 1957
    ...States, 8 Cir., 1947, 160 F.2d 757; Pietch v. United States, 10 Cir., 1940, 110 F.2d 817, 129 A.L.R. 563; Borgia v. United States, 9 Cir., 78 F.2d 550, certiorari denied, 1935, 296 U.S. 615, 56 S.Ct. 135, 80 L.Ed. 436; DeBonis v. United States, 6 Cir., 1931, 54 F.2d 3, certiorari denied, 19......
  • United States v. Harrison, No. 7498.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 24, 1941
    ...A Conspiracy Is Co-conspirator, 12 Minnesota Law Review 77; Zito v. United States, 7 Cir., 64 F.2d 772; Borgia v. United States, 9 Cir., 78 F.2d 550; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975; Backun v. United States, 4 Cir., 112 F. 2d 635. 8 See footnote 7 above; United ......
  • Snead v. United States, No. 6874.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 10, 1954
    ...courts. Pattis v. United States, 9 Cir., 17 F.2d 562; Vukich v. United States, 9 Cir., 28 F.2d 666, 669; Borgia v. United States, 9 Cir., 78 F.2d 550, 555; Anstess v. United States, 7 Cir., 22 F.2d 594; Hubinger Co. v. United States, 7 Cir., 64 F.2d 772; Rudner v. United States, 6 Cir., 281......
  • Request a trial to view additional results

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