Borgia v. United States

• Decision Date: 09 July 1935
• Docket Number: No. 7670.,7670.
• Citation: 78 F.2d 550
• Parties: BORGIA v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

78 F.2d 550 (1935)

BORGIA v. UNITED STATES.^*

No. 7670.

Circuit Court of Appeals, Ninth Circuit.

July 9, 1935.

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 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' in the general provision includes the finding and return of an indictment. That the word sometimes is used as including them must be conceded. But there are also relations in which it comprehends only the proceedings had after the indictment is returned. Here we think it is used with the latter signification. It appears twice in the provision, doubtless with the same meaning. The first time is in the clause directing that `all prosecutions' be had in the division where the offense was committed, and the second is in the clause permitting the court or judge, at the instance of the defendant, to order `the cause to be transferred for prosecution' to another division. The connection in which it appears the second time shows that it refers to the proceedings after the indictment is found and returned; that is to say, after there is a cause susceptible of being transferred. Besides, had Congress intended to put an end to the prevailing practice of impaneling a grand jury for the entire district at a session in some division and of remitting the indictments to the several divisions in which the offenses were committed, unless the accused elected otherwise, it is but reasonable that that intention would have been expressed in apt terms, such as were used in some of the exceptional special statutes. * * *

"In our opinion the real purpose of the provision, * * * is to require, where a district contains more than one division, that the trial be had in the division where the offense was committed, unless the accused consents to be tried in another. The Circuit Court of Appeals so held in a well considered opinion in Biggerstaff v. United States, supra 260 F. 926. The only decision the other way, of which we are advised, was by the District Court for the Eastern District of Louisiana in United States v. Chennault, supra 230 F. 942, and that court receded from that decision in the cases now before us."

Referring to section 53 of the Judicial Code, the Circuit Court of Appeals for the Eighth Circuit said, in Chew v. U. S., 9 F.(2d) 348, 351:

"This provision simply requires that the trial be had in the division where the offense was committed, but does not prevent the impaneling of a grand jury for the entire district at a session in some division, and of remitting the indictments to the several divisions in which the offenses were committed."

In Shaw v. U. S., 1 F.(2d) 199 (C. C. A. 8), appellant was indicted for a crime committed in the Western...