Dolff v. United States
| Decision Date | 16 November 1932 |
| Docket Number | 4735,No. 4734,4744.,4734 |
| Citation | 61 F.2d 881 |
| Parties | DOLFF v. UNITED STATES. MEYERS v. SAME. PROOST v. SAME. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kenneth C. Charlton, of Birmingham, Ala., and Harry I. Weisbrod, of Chicago, Ill., for appellant Dolff.
Gerald T. Wiley, of Chicago, Ill., for appellant Proost.
George E. Q. Johnson, U. S. Atty., Dwight H. Green, U. S. Atty., and Daniel Anderson, Asst. U. S. Atty., all of Chicago, Ill., for the United States.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
Appellants, with fifty-seven other natural persons and two corporations, were charged by indictment with having entered into a conspiracy, continuing from January 1, 1927, to June 26, 1931, to manufacture, transport, and sell intoxicating liquor, in violation of U. S. Criminal Code, § 37, 18 U. S. C., § 88 (18 USCA § 88).1
The substantive offenses referred to in the alleged conspiracy are defined in section 3 of title 2 of the National Prohibition Act, 27 U. S. C. § 12 (27 USCA § 12).2
The indictment charges that appellants, with the other named defendants, each of the "Eastern Division of the Northern District of Illinois, continuously throughout the period of time extending from, to wit, January 1, 1927, until the date of the finding and presentation of this indictment, in said division and district, unlawfully and feloniously have conspired, combined, confederated, and agreed together, and with divers other persons to said grand jurors unknown, to commit divers offenses against the United States, to wit, one hundred offenses, each to consist in said conspirators manufacturing at the several places referred to in the `Overt Acts,' hereinafter set forth, and at divers other places, (the exact location of such other places being to the said grand jurors unknown), a large quantity, to wit, twenty thousand gallons of intoxicating liquor, to wit, alcohol, fit for use for beverage purposes, otherwise than as authorized by the National Prohibition Act; that is to say, without said conspirators first having obtained a permit from the Commissioner of Internal Revenue of the United States, from his authorized assistant or agent, or from any other proper officer of the United States, so to do, and for beverage purposes; and divers, to wit, ten thousand other offenses, each to consist in said conspirators transporting, for beverage purposes, a large quantity, to wit, alcohol, from some one of said places of manufacture, in said division and district, to some other place to said grand jurors unknown; and divers, to wit, ten million other offenses, each to consist in said conspirators selling, at some one of said places of the manufacture thereof, in said division and district, or at some other place to said grand jurors unknown, for beverage purposes, a quantity, to wit, one pint or less of such intoxicating liquors, to wit, alcohol."
Appellants filed demurrers to and motions to quash the indictment, which were overruled. The cause was tried by jury, and at the close of the government's evidence, and also at the close of all the evidence, appellants separately moved for a directed verdict and to exclude from the consideration of the jury the testimony of certain witnesses, which motions were overruled. The jury returned a verdict of guilty as to each appellant; and, after overruling their separate motions in arrest of judgment and for a new trial, the court adjudged them guilty and imposed sentence. Each appellant made timely exception to each adverse ruling.
It is contended by appellants that the indictment is fatally defective for the reason that, inasmuch as there are exceptions in the enacting clause of the National Prohibition Act, an indictment for conspiracy to violate it must show that appellants are not within the excepting clause. The contention must be decided adversely to appellants because of sections 32 and 33 of title 2 of the National Prohibition Act (41 Stat. 317; 27 U. S. C. §§ 49 and 50 27 USCA §§ 49, 50) which read as follows:
Sec. 32. "* * * It shall not be necessary in any affidavit, information, or indictment to give the name of the purchaser or to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful, but this provision shall not be construed to preclude the trial court from directing the furnishing the defendant a bill of particulars when it deems it proper to do so."
Sec. 33. "* * * the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title * * * and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used."
See Keen v. United States (C. C. A.) 11 F.(2d) 260; United States v. Dwyer (D. C.) 13 F.(2d) 427; Carnahan v. United States (C. C. A.) 35 F.(2d) 96, 67 A. L. R. 1035.
It is further contended by appellants Dolff and Meyers that the evidence discloses only isolated infractions of the National Prohibition Act, so unconnected as to fail to constitute a general and comprehensive scheme or conspiracy.
A perusal of the record leaves no doubt that appellants Dolff and Meyers were extensively engaged in the manufacture, sale, and transportation of illicit liquor, and that their operations extended over a vast amount of territory and in more than one state. They owned and operated three stills, and had sixteen persons in their organization. They trafficked with public officers to secure safe transportation of their product, and disposed of many thousands of gallons weekly. When business was prosperous they would not sell less than 200 gallons at one time, and they had many customers who purchased much more than that amount. One of these patrons, by the name of Blumberg, was quite an extensive distributor in the vicinity of Clinton, Iowa, and Elgin, Ill., during 1928, 1929, and 1930. The record shows that appellant Dolff said he knew that Blumberg sold good liquor because he (Dolff) sold it to him. We are convinced that the activities of Dolff and Meyers, as set forth in the record, constituted more than isolated infractions of the law; they amounted to a conspiracy as charged in the indictment.
Over the objection of appellants Dolff and Meyers the court admitted evidence of the fact that, during the time in controversy, Martin Transfer Company of Aurora, Ill., purchased from Olive Can Company of Chicago about 8,000 empty one-gallon tin cans each week. This fact appellants Dolff and Meyers insist was prejudicial to their rights. The evidence shows that the cans received by the transfer company were from time to time taken from the company's warehouse by two men called George and Dave. The books of account of the transfer company show the names of "Mike" and "M. Meyers." These facts would render this evidence admissible. Under the circumstances, the weakness, if any, of the identification of appellants with relation to this transaction relates to the weight of the evidence rather than to its admissibility.
Government witness Ebsen was in the employ of codefendant Blumberg in 1928, and, by virtue of such employment, was hauling liquor by automobile from Elgin. During one week in the early part of 1928 he made three or four trips to Elgin for that purpose. In detailing his actions on the first trip, Ebsen testified that he went to the hotel and called by telephone the number given him by Blumberg. In answer to the question put by the district attorney, "Who did you ask for when you called the number?" Ebsen, by permission of the court and over appellants' objections, said, "He told me either Mike Meyers or Dave Dolff."
Appellants Dolff and Meyers contend there was error in the admission of that testimony which was prejudicial to them, because it was a statement of an alleged co-conspirator made in the absence of appellants, and referred to matters with which they were in no manner connected and which occurred more than three years before the indictment was returned.
Ebsen then testified that on his first trip to Elgin he called for both Dolff and Meyers on the number given him by Blumberg and that neither responded, but that the person who answered the call told him that some one would call at the hotel for Ebsen's truck. This was done, and the truck was delivered. About 3 o'clock in the morning the same person called at the hotel for Ebsen and took him in another car to the edge of the city, where the truck loaded with liquor was delivered to him. Ebsen stated that three or four other persons were at the place of delivery when he arrived, and that he thought Dave Dolff was there, although he said he was not positive as to Dolff's presence. Ebsen also gave the details of his second trip to Elgin and they were the same as the first, with the exception that appellant Meyers called for him at the hotel...
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