Ford v. United States 26 27, 1926

• Decision Date: 11 April 1927
• Docket Number: No. 312,312
• Citation: 273 U.S. 593,47 S.Ct. 531,71 L.Ed. 793
• Parties: FORD et al. v. UNITED STATES. Argued Oct. 26-27, 1926
• Court: U.S. Supreme Court

273 U.S. 593

47 S.Ct. 531

71 L.Ed. 793

FORD et al.

v UNITED STATES.

No. 312.

Argued Oct. 26-27, 1926.

Decided April 11, 1927.

[Syllabus from pages 593-595 intentionally omitted]

Messrs. J. Harry Covington, Marion De Vries, and George

Roscoe Davis, all of Washington, D. C., and Harold C. Faulkner and Louis V. Crowley, both of San Francisco, Cal., for petitioners

[Argument of Counsel from pages 595-597 intentionally omitted]

The Attorney General and Mr. W. D. Mitchell, Sol. Gen., of Washington, D. C., for the United States.

[Argument of Counsel from pages 598-600 intentionally omitted] Mr. Chief Justice TAFT delivered the opinion of the Court.

This is a review by certiorari of the conviction of George Ford, George Harris, J. Evelyn, Charles H. Belanger, and Vincent Quartararo, of a conspiracy, contrary to section 37 of the Criminal Code (Comp. St. § 10201), to violate the National Prohibition Act, title 2, §§ 3 and 27 (41 Stat. 305, 308, 316, c. 85 (Comp. St. §§ 10138 1/2 aa, 10138 1/2 p)), and the Tariff Act of 1922, § 593(b) being 42 Stat. 858, 982, c. 356 (Comp. St. § 5841h13). The trial and conviction resulted largely from the seizure of the British vessel Quadra, hovering in the high seas off the Farallon Islands, territory of the United States, 25 miles west from San Francisco. The ship, her officers, her crew, and cargo of liquor were towed into the port of San Francisco. The seizure was made under the authority of the treaty between Great Britain and the United States, proclaimed by the President May 22, 1924 (43 Stat. 1761), as a convention to aid in the prevention of the smuggling of intoxicating liquors into the United States.

The main questions presented are, first, whether the seizure of the vessel was in accordance with the treaty; second, whether the treaty prohibits prosecution of the persons, subjects of Great Britain, on board the seized vessel brought within the jurisdiction of the United States upon the landing of such vessel, for illegal importation of liquor; third, whether the treaty authorizes prosecution of such persons not only for the substantive offense of illegal importation or attempt to import but also for conspiracy to effect it; and, fourth, whether such persons without the United States conspiring and co-operating to violate its laws with other persons who are within the United States, and to commit overt acts therein, can be prosecuted therefor when thereafter found in the United States.

The petitioners and 55 others were indicted in November, 1924, for carrying on a continuous conspiracy at the bay of San Francisco in the jurisdiction of the United States, from January 1, 1924, to November of that year, the date of the indictment, to commit offenses against the laws of the United States, first, by introducing into and transporting in the United States intoxicating liquor in violation of the National Prohibition Act; second, by importing liquor into the United States in violation of section 593, subdivision (b) of the Tariff Act of 1922, making it a penal offense to introduce merchandise into the United States in violation of law; and, third, by violation of the terms of the treaty. It charged as overt acts the loading of 12,000 cases of liquor on the Quadra at Vancouver, British Columbia, her proceeding on September 10, 1924, to a point less than 12 miles from the Farallon Islands, a distance which could be traversed in less than an hour by the Quadra and by the motorboats, the 903-B, C-55, Marconi, California, Ocean Queen, and divers others, by which the liquor was then delivered from her and imported into the United States; that on the 29th of September, 1924, the defendants landed from the steamer Quadra a barrel containing 100 gallons of whisky, and at another time on October 11, 1924, a large variety of alcohol, gin, brandy, whisky, and vermouth; and that at another time, on October 12th, the day of the seizure, they attempted to land 89 sacks of whisky, but that two of the defendants, who were on the small craft C-55, were arrested and were prevented from carrying out their purpose. Two defendants pleaded guilty. Of 29 defendants tried, 19, including all the crew of the Quadra, were acquitted, and 10, including the captain and the first and second officers of the Quadra, were convicted. Of these 10, 5, including the three officers, are now before the court as petitioners. The convictions were affirmed by the Circuit Court of Appeals of the Ninth Circuit. 10 F. (2d) 339.

The validity of the indictment is attacked, first, because it charges that the conspiracy was to violate the treaty, although the treaty creates no offense against the law of the United States. This is true, but that part of the indictment is merely surplusage and may be rejected. Bailey v. United States (C. C. A.) 5 F. (2d) 437; Remus v. United States (C. C. A.) 291 F. 591; United States v. Weiss (D. C.) 293 F. 992, 995; United States v. Drawdy (D. C.) 288 F. 567, 570. The trial court took this view. But it is contended that this is to amend the indictment, and comes within the inhibition of the principle of Ex parte Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. Ed. 849. That decision condemns the striking out of words from an indictment. The action here complained of is merely a judicial holding that a useless averment is innocuous and may be ignored. Goto v. Lane, 265 U. S. 393, 402, 44 S. Ct. 525, 68 L. Ed. 1070; Salinger v. United States, 272 U. S. 542, 47 S. Ct. 173, 71 L. Ed. 398, November 23, 1926. Next it is said that the indictment is bad for duplicity. It charges a continuous conspiracy by the defendants, at the Bay of San Francisco, between January 1, 1924, and the date of finding the indictment, to import into the United States intoxicating liquor in violation of its laws. It mentions two of such laws, and, as section 37 of the Criminal Code requires, it describes several overt acts in pursuance of the conspiracy alleged. The charge is unitary in relating to one continuous conspiracy, although in proof of it different circumstances constituting it and overt acts in pursuance of it are disclosed. This does not constitute duplicity. Frohwerk v. United States, 249 U. S. 204, 210, 39 S. Ct. 249, 63 L. Ed. 561; Joplin Co. v. United States, 236 U. S. 531, 548, 35 S. Ct. 291, 59 L. Ed. 705.

The case on the evidence made by the government was as follows:

On October 12, 1924, the United States Coast Guard cutter Shawnee, on the lookout for vessels engaged in the illicit importation into the United States of intoxicating liquor, saw the Quadra, a British steamer of Canadian register, near the Farallon Islands. As the Shawnee bore down on her to investigate, she turned and began to move off shore. The captain of the Shawnee signaled her to stop, and she complied. As the Shawnee approached her, a motorboat, C-55, was seen just after the boat had left the Quadra. The Shawnee catptain signaled the boat to stop, and, because it did not do so, fired a shot across its bow, whereupon it rounded about and came alongside. It had two men and a number of sacks of intoxicating liquor, as well as a partly filled case of beer bottles. It was made fast to the Shawnee, and the two men were placed under arrest. The Shawnee captain then sent two officers aboard the Quadra to examine her papers. Ford, her captain, one of the convicted defendants, refused to show his papers or to give any information until he had consulted counsel. The Shawnee officers then took charge of her. She was found to contain a large quantity of intoxicating liquor, and on refusal of Ford to take her by steam into San Francisco, the Shawnee towed her to that port and turned her cargo over to the United States customs officers, while her officers and crew, including Ford, were arrested.

The testimony for the government tended to show that the Quadra, when seized, was 5.7 nautical miles from the Farallon Islands, and that the motor boat C-55 could have traversed that distance in less than an hour.

The evidence for the government at the trial further showed there were three vessels, the Quadra, the Malahat, and the Coal Harbour, chartered by a cargo-owning cor- poration called the Consolidated Exporters' Corporation, Limited, of Canada, and loaded at Vancouver, British Columbia, with large cargoes of miscellaneous liquors; that the Malahat left Vancouver in May, officially destined to Buenaventura, Colombia; that the Coal Harbour left the same port in July, with a similar cargo officially destined to La Libertad, San Salvador, and the Quadra left there in September, officially destined to La Libertad. The captains of these vessels, while hovering near the Farallones, were constantly in touch with the convicted defendants Quartararo and Belanger at San Francisco, and acted to some extent under their orders and directions. Quartararo was the most active agent of the conspiracy on shore. Belanger was a director of the Canadian corporation above named. He arranged for and had sent from San Francisco to the Malahat burlap containers to be used for landing the bottled liquor, thence to be transferred to the Quadra, and also gave the orders to transfer liquor from one vessel to another, and to bring designated liquor from the vessels' cargoes to the shore. The Quadra was supplied with fuel oil from the shore, pursuant to prearrangement. None of the seagoing vessels above named proceeded to their destinations officially described in their ship's papers, but cruised up and down between the Farallones and the Golden Gate, where the exchanges of liquor and sacks were made, and where the needed oil was delivered, and from which the liquor was carried by small boats to a landing place called Oakland Creek in San Francisco. The evidence of the conspiracy, the landing of the liquor, and the complicity of the convicted defendants therein was ample and practically undenied.

There was a preliminary motion to exclude and suppress the evidence of the...