Ford v. United States

• Citation: 10 F.2d 339
• Decision Date: 04 January 1926
• Docket Number: No. 4602.,4602.
• Parties: FORD et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

10 F.2d 339 (1926)

FORD et al. v. UNITED STATES.^*

No. 4602.

Circuit Court of Appeals, Ninth Circuit.

January 4, 1926.

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Kenneth M. Green, Harold C. Faulkner, and James B. O'Connor, all of San Francisco, Cal., for plaintiffs in error Ford, Harris, and Evelyn.

Nathan C. Coghlan, of San Francisco, Cal. (Edward A. O'Dea, of San Francisco, Cal., of counsel), for plaintiff in error Quartararo.

George J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and McCAMANT, Circuit Judges.

McCAMANT, Circuit Judge (after stating the facts as above).

Error is assigned on the overruling of a demurrer to the indictment and the denial of a motion to quash the indictment. The charge was a violation of section 37 of the Criminal Code (Comp. St. § 10201), which is as follows: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both."

The indictment alleges the enactment of the National Prohibition Act and the Tariff Act of September 21, 1922 (42 Stat. 858), also the negotiation of the treaty between Great Britain and the United States of date May 22, 1924 (43 Stat. 1761). Subdivision (b) of section 593 of the Tariff Act (Comp. St. Ann. Supp. 1923, § 5841h13), and sections 1, 2, and 3 of article 2 of the treaty are quoted. It is alleged that the Farallone Islands are an American possession situate about 25 miles west of San Francisco. The indictment then charges:

That the 60 defendants, "and divers other persons to this grand jury and these grand jurors unknown, did at the bay of San Francisco, within the district and division aforesaid, and within the jurisdiction of this court, on the 1st day of January, 1924, the real and exact date of which is to this grand jury and these grand jurors unknown, and continuously at all the times thereafter up to and including the date of the filing of this indictment, willfully, unlawfully, feloniously, and knowingly conspire, combine, confederate, and agree together, and with divers other persons whose names are to these grand jurors and to this grand jury unknown, to commit certain offenses against the United States that is to say:

"(a) To willfully, unlawfully, feloniously, and knowingly sell, transport, import, deliver, furnish, and possess within the United States intoxicating liquor for beverage purposes, to wit, whisky, wine, champagne, gin, and beer containing one-half of 1 per centum and more of alcohol by volume and fit for use and intended for use for beverage purposes within the United States, the said acts to be then and there unlawful and prohibited, and contrary to the provisions of the act of October 28, 1919, known as the `National Prohibition Act,' and the convention, agreement, and treaty between the United States and Great Britain of May 22, 1924, and intended for use for beverage purposes in violation of said act and said treaty;

"(b) Willfully, unlawfully, feloniously, knowingly and fraudulently import and bring into the United States, and to assist in importing and bringing into the United States merchandise contrary to law, to wit, whisky, champagne, wine, gin, and beer containing one-half of 1 per centum and more of alcohol by volume and fit for use and intended for use for beverage purposes within the United States, the said acts to be then and there unlawful and prohibited and contrary to the provisions of section 593, subdivision (b), of the Tariff Act of 1922, and the convention, agreement, and treaty between the United States and Great Britain of May 22, 1924, and intended to be imported and brought into the said United States in violation of said acts and treaty."

It is alleged that the conspiracy was continuously in operation from January 1, 1924, to the date of the filing of the indictment, which was November 20, 1924. Four overt acts in furtherance of the conspiracy are then set up:

(a) That the Quadra was loaded at Vancouver, B. C., in September, 1924, with 12,000 cases of liquor, which were carried to a point near the Farallone Islands, where a portion of the cargo was transferred to motorboats named, which carried the liquor into the United States.

(b) That on the 29th day of September the Quadra delivered a barrel containing 100 gallons of whisky to the motorboat 903-B, which transported the whisky to San Francisco.

(c) That on the 11th day of October the Quadra delivered to the same motorboat a named quantity of alcohol, gin, brandy, whisky, and vermouth, which was transported to San Francisco.

(d) That on the 12th day of October the Quadra delivered to the defendants Pensotti and McKinzie on the motorboat C-55 89 sacks of whisky and one case of beer, which the said defendants attempted to transport into San Francisco Bay. It is charged that this delivery was made near the Farallone Islands, and at a less distance therefrom than could be traversed by the Quadra and the C-55 in an hour.

Plaintiffs in error contend that the indictment is defective, in that it does not specify the respect in which the importation of the liquor was contrary to the provisions of section 593, subd. (b), of the Tariff Act of 1922. In support of this objection Keck v. U. S., 172 U. S. 434, 19 S. Ct. 254, 43 L. Ed. 505, is cited. The charge in that case was importing diamonds "contrary to law." This case is distinguished in Miller v. U. S. (C. C. A.) 300 F. 529, on the ground that it is presumably lawful to import merchandise and unlawful to sell or possess liquor

It is unlawful to import liquor. Section 3 of title 2 of the National Prohibition Act, 41 Stat. 308 (U. S. Comp. St. Ann. Supp. 1923, § 10138½aa); section 2, Act Nov. 23, 1921, 42 Stat. 222 (Comp. St. Ann. Supp. 1923, § 10138½aaa).

The charge in this case is not smuggling, but conspiracy. "The offense which it is charged the defendant conspired to commit need not be stated with that particularity that would be required in an indictment charging the offense itself." Anderson v. U. S., 260 F. 557, 558, 171 C. C. A. 341, 342; Rulovitch v. U. S. (C. C. A.) 286 F. 315, 317; Taylor v. U. S. (C. C. A.) 2 F.(2d) 444, 446.

The defendants were entitled to be apprised of the charge against them with a sufficient recital of detail to enable them to make their defense, and to protect them in a plea of former acquittal or conviction in the event of a second prosecution for the same offense. We think a conspiracy to violate the Tariff Act is sufficiently charged. A conspiracy to violate the National Prohibition Act is unquestionably charged.

It is argued that there can be no criminal offense in violating the treaty between this country and Great Britain. This is true, but the reference to the treaty may be rejected as surplusage, and the indictment still states facts sufficient to constitute a crime. Bailey v. U. S. (C. C. A.) 5 F.(2d) 437; Remus v. U. S. (C. C. A.) 291 F. 501; U. S. v. Weiss (D. C.) 293 F. 992, 995; U. S. v. Drawdy (D. C.) 288 F. 567, 570. Plaintiffs in error cite Torphy v. State, 187 Ind. 73, 118 N. E. 355, where the Indiana court reversed a conviction because the indictment improperly charged that defendant had been previously convicted. Such an allegation would be manifestly damaging, but the reference to the treaty in this indictment could not have prejudiced these plaintiffs in error.

It is competent to charge a conspiracy to violate more than one penal statute. U. S. v. Rabinowich, 238 U. S. 78, 86, 35 S. Ct. 682, 59 L. Ed. 1211; Frohwerk v. U. S., 249 U. S. 204, 210, 39 S. Ct. 249, 63 L. Ed. 561; Remus v. U. S. (C. C. A.) 291 F. 501; Powers v. U. S. (C. C. A.) 293 F. 964; Taylor v. U. S. (C. C. A.) 2 F.(2d) 444, 447; Bailey v. U. S. (C. C. A.) 5 F.(2d) 437. A conviction is warranted in such case, if the evidence proves a conspiracy to violate one of the statutes named. Kepl v. U. S. (C. C. A.) 299 F. 590. The District Court did not err in overruling the demurrer and denying the motion to quash the indictment.

It is the contention of plaintiffs in error that the seizure of the Quadra was wrongful, for the reason that the vessel, at the time she was seized, was on the ocean beyond the reach of the laws of the United States, and her officers and crew were British subjects. It is earnestly argued that for these reasons the District Court had no jurisdiction of the persons of plaintiffs in error Ford, Harris, and Evelyn. It appears that on the seizure of the Quadra the vessel, and her officers and crew, were brought to San Francisco against their will. The defendants were present in court when the case was tried; this was sufficient to vest the District Court with jurisdiction over their persons. The question presented on this record is not whether their arrest was regular, but whether they were guilty and were fairly tried. "The jurisdiction of the court in which the indictment is found is not impaired by the manner in which the accused is brought before it." Mahon v. Justice, 127 U. S. 700, 708, 8 S. Ct. 1204, 1208 (32 L. Ed. 283); Cook v. Hart, 146 U. S. 183, 13 S. Ct. 40, 36 L. Ed. 934; Adams v. New York, 192 U. S. 585, 24 S. Ct. 372, 48 L. Ed. 575; Pettibone v. Nichols, 203 U. S. 192, 27 S. Ct. 111, 51 L. Ed. 148, 7 Ann. Cas. 1047. See, also, Ker v. Illinois, 119 U. S. 436, 444, 7 S. Ct. 225, 30 L. Ed. 421.

In Latham v. U. S., 2 F.(2d) 208, 210, the Circuit Court of Appeals for the Fourth Circuit says: "The defendants being under arrest in the United States, it makes no difference that they were outside the jurisdiction when, by aiding and abetting, they become principals in crime committed in the United States. They could not have been extradited as fugitives...