Bruno v. United States

• Decision Date: 04 June 1923
• Docket Number: 1593.
• Citation: 289 F. 649
• Parties: BRUNO v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

289 F. 649

BRUNO v. UNITED STATES.

No. 1593.

Circuit Court, of Appeals. First Circuit.

June 4, 1923

[Copyrighted Material Omitted]

G Philip Wardner, of Boston, Mass. (Joseph T. Zottoli, of Boston, Mass., on the brief), for plaintiff in error.

Charles P. Curtis, Jr., Sp. Asst. U.S. Atty., of Boston, Mass (Robert O. Harris, U.S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM Circuit Judge.

The plaintiff in error, Filippo Bruno, hereinafter called the defendant, was indicted with five other persons in the District Court of the United States for the District of Massachusetts. The indictment contained three counts. Bruno and four of the defendants pleaded not guilty. The other defendant was not arrested or arraigned. A trial was had before a jury, and a general verdict of guilty was returned against Bruno, Amero, and Tony Carbone. The other two defendants were discharged. Amero and Tony Carbone were each sentenced to pay a fine of $500. Bruno was sentenced to pay a fine of $2,000 and be imprisoned in the House of Correction at Plymouth, Mass., for the term of four months.

The first count was brought under section 3082 of Revised Statutes (Comp. St. Sec. 5785), and charged that the defendants, between the 22d and 28th days of December, 1921, unlawfully imported and brought, and unlawfully assisted in importing and bringing, into the United States, at or near Boston and Plymouth, in the District of Massachusetts, from a foreign port (the island of Miquelon and St. Pierre), certain merchandise, to wit, about 2,200 gallons of alcohol, of the value of about $7,000, contrary to law, in that they had imported and brought the liquors into the United States and unladen and delivered them within the United States without a permit for the importation of said merchandise, without a permit for its unloading and delivery, without paying the lawful customs duty thereon, and without a manifest as required by law, and contrary to sections 2806, 2807, 2808, 2809, and 2872 of the Revised Statutes (Comp. St. Secs. 5503-5506, 5563), and section 3 of title 2 of the Act of October 28, 1919, entitled the National Prohibition Act (41 Stat. 305).

The only material difference between the first and second counts is that in the first the Golden West is named as the vessel in which the merchandise was transported from said islands to the point or points off the coast of the Massachusetts district, whereas in the second count the name of the vessel by which the merchandise was so transported was omitted.

The third count was brought under section 37 of the Criminal Code (Comp. St. Sec. 10201), and charged that Bruno and the other defendants, during the months of November and December, 1921, in said district and elsewhere did willfully and feloniously conspire together and-- 'with one J. B. Legasse and a certain Italian called Jim, and with divers other persons, * * * to commit certain offenses against the United States, to wit, to violate sections 2806, 2807, 2808, 2809, and 2872 of the Revised Statutes, and section 3 of title 2 of the Act of October 28, 1919, entitled the National Prohibition Act in this:

'That it was the purpose and object of the said conspiracy * * * to bring and cause to be brought certain merchandise, to wit, alcohol and other intoxicating liquors, from the island of Miquelon and St. Pierre, of the republic of France, in a schooner, called the Golden West, to Massachusetts Bay, off the coast of the said district,' and thence by other vessels to secretly and clandestinely import and cause to be imported said merchandise into the Massachusetts district, to secretly and clandestinely unlade and deliver, and cause it there to be unladen and delivered, without a permit as required by law for its importation, and without a permit as required by law for its unlading and delivery, and without paying the lawful customs duty thereon, and without a manifest as required by law. It then set out certain overt acts done in furtherance of the conspiracy.

As counts 1 and 2 are based upon section 3082, the position of the government is that sections 2806, 2807, 2808, 2809, 2872 of the Revised Statutes, and section 3, title 2, of the Act of October 28, 1919, recited in said counts, define the acts relied upon as 'contrary to law,' within the meaning of that phrase as used in section 3082. Keck v. United States, 172 U.S. 434, 437, 19 Sup.Ct. 254, 43 L.Ed. 505.

Section 3082 (Comp. St. Sec. 5785) reads as follows:

'If any person shall fraudulently or knowingly import or bring into the United States, or assist, in so doing, any merchandise, contrary to law, * * * such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both.'

Section 2806 (Comp. St. Sec. 5503) provides:

'No merchandise shall be brought into the United States, from any foreign port, in any vessel unless the master has on board manifests in writing of the cargo, signed by such master.'

Section 2807 (Comp. St. Sec. 5504) prescribes what every manifest required by the preceding section shall contain.

Section 2808 (Comp. St. Sec. 5505) provides:

'If merchandise shall be imported, destined to be delivered in different districts or ports, the quantities and packages so destined to be delivered shall be inserted in successive order in the manifest; and all spirits and wines constituting the whole or any part of the cargo of any vessel shall also be inserted in successive order, distinguishing the ports to which the same may be destined, and the kinds, qualities, and quantities thereof.'

Section 2809 (Comp. St. Sec. 5506) provides:

'If any merchandise is brought into the United States in any vessel whatever from any foreign port without having such a manifest on board, or which shall not be included or described in the manifest, or shall not agree therewith, the master shall be liable to a penalty equal to the value of such merchandise not included in such manifest; and all such merchandise not included in the manifest belonging or consigned to the master, mate, officers or crew of such vessel shall be forfeited.'

Section 2872 (Comp. St. Sec. 5563) provides: 'Except as authorized by the preceding section, no merchandise brought in any vessel from any foreign port shall be unladen or delivered from such vessel within the United States but in open day-- that is to say, between the rising and setting of the sun-- except by special license from the collector of the port, and naval officer of the same, where there is one, for that purpose, nor at any time without a permit from the collector, and naval officer, if any, for such unlading or delivery.'

Section 3 of title 2 of the National Prohibition Act provides:

'No person shall on or after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.

'Liquor for nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished and possessed, but only as herein provided, and the commissioner may, upon application, issue permits therefor,' etc.

Section 29 of title 2 of the National Prohibition Act provides:

'Any person who manufactures or sells liquor in violation of this title shall for a first offense be fined not more than $1,000, or imprisoned not exceeding six months, and for a second or subsequent offense shall be fined not less than $200 nor more than $2,000 and be imprisoned not less than one month nor more than five years.

'Any person violating the provisions of any permit, or who makes any false record, report, or affidavit required by this title, or violates any of the provisions of this title, for which offense a special penalty is not prescribed, shall be fined for a first offense not more than $500; for a second offense not less than $100 nor more than $1,000, or be imprisoned not more than ninety days; for any subsequent offense he shall be fined not less than $500 and be imprisoned not less than three months nor more than two years,' etc.

It is contended by the defendant that, since the enactment of the National Prohibition Act, the importation of liquor for beverage purposes is absolutely prohibited and that its importation for nonbeverage and sacramental purposes is forbidden, except as in the act provided and upon a permit obtained from the Commissioner of Internal Revenue, that, as intoxicating liquors for beverage purposes, and for nonbeverage and sacramental purposes where no permit has been obtained, are excluded from importation, they are not now merchandise within the meaning of our customs laws, and particularly the sections set out in counts 1 and 2 of the indictment. In the same connection he further contends that sections 3 and 29 of title 2 of the National Prohibition Act supersede sections 2806, 2807, 2808, 2809, 2872, and 3082 in respect to intoxicating liquors imported in violation of law, and that therefore the defendant could not be legally convicted on either of the first two counts.

We think the first contention cannot be sustained, as we regard intoxicating liquors, whether intended for beverage nonbeverage or sacramental purposes, as merchandise within the meaning of the sections of the customs laws above enumerated. Section 2766 of the...