Goldberg v. United States

• Decision Date: 29 October 1921
• Docket Number: 5766.
• Citation: 277 F. 211
• Parties: GOLDBERG v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

277 F. 211

GOLDBERG v. UNITED STATES.

No. 5766.

United States Court of Appeals, Eighth Circuit.

October 29, 1921

James E. Markham, of St. Paul, Minn. (A. J. Hertz, of St. Paul Minn., on the brief), for plaintiff in error.

Alfred Jaques, U.S. Atty., of Duluth, Minn.

Before SANBORN, Circuit Judge, and TRIEBER and NEBLETT, District judges.

SANBORN Circuit Judge.

The defendant below in this case was indicted, tried, and sentenced for conspiring with others named in the indictment against them, in violation of section 5440 of the Revised Statutes, section 10201, United States Compiled Statutes, section 37, Criminal Code, to commit, in violation of section 3082, Revised Statutes, section 5785, United States Compiled Statutes, the offense of receiving, concealing, facilitating the transportation and concealment of whisky, after its importation, contrary to law, knowing it to have been imported into the United States contrary to law. He demurred to the indictment, requested the court, after the evidence on the part of the government had been introduced, to instruct the jury to return a verdict in his favor, offered no evidence in his own behalf, made a motion in arrest of judgment, and took the proper exceptions to the court's adverse rulings on these applications.

His counsel argue that the indictment charged him with no offense, and that there was no evidence at his trial that he had committed any offense, and on these grounds they ask a reversal of the judgment against him. They first contend that the indictment does not expressly and directly allege the importation into the United States from the Dominion of Canada of the intoxicating liquors which the defendants are accused of having conspired to receive, conceal, facilitate the transportation and concealment of within the United States. But the defendants were not charged either with importing the liquor or with conspiring to import it. Section 3082 provides: (1) If any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any merchandise, contrary to law, or (2) shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported contrary to law, such merchandise shall be forfeited and the offender shall be fined, etc. Conceding that direct averments that the defendants knowingly imported the merchandise contrary to law would have been required properly to charge that offense, they were not indispensable to a sufficient indictment for a conspiracy to receive and facilitate the transportation and concealment of merchandise imported contrary to law, knowing that it had been so imported because the latter charge does not include the offense of unlawfully importing, or of conspiring unlawfully to import and because the gist of the offense charged in this indictment is neither of the offenses denounced by section 3082, but the conspiracy to commit, not the first, but the second, offense there described, and it is not necessary, in an indictment for a conspiracy to commit an offense, to allege the facts constituting the offense which is the object of the conspiracy with the particularity requisite in an indictment for the commission of that offense.

The conspiracy and the offense which is its object are separate crimes. The gist of the former is the conspiracy and 'certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is necessary in stating the object of the conspiracy. ' Williamson v. United States, 207 U.S. 425, 449, 28 Sup.Ct. 163, 52 L.Ed. 278; United States v. Claflin, 25 Fed.Cas. 433, 435; United States v. Rabinowich, 238 U.S. 78, 85, 86, 87, 35 Sup.Ct. 682, 59 L.Ed. 1211; Anderson v. United States, 260 F. 557, 558, 171 C.C.A. 341; Brooks v. United States, 146 F. 223, 76 C.C.A. 581; Lemon et al. v. United States, 164 F. 953, 90 C.C.A. 617; Brown v. United States, 143 F. 60, 74 C.C.A. 214; Gould v. United States, 205 F. 883, 126 C.C.A. 1. The failure to make more express and direct allegations than were contained in the indictment of the importation from the Dominion of Canada of the whisky which the defendant was charged with conspiring to receive, conceal, and to facilitate the transportation and concealment of, was not fatal to that pleading.

The indictment contained averments that on December 20, 1919, at Minneapolis, Minn., the defendants Saul Goldberg, Frank Bank, David Posnick, Michael Weisman, and others conspired and agreed together to commit the offense against the United States and its laws, of receiving, concealing, and facilitating the transportation and concealment of a large quantity of whisky after importation, knowing the same to have been fraudulently imported into the United States and into the city of Minneapolis from the Dominion of Canada, by unloading, taking possession and control thereof, and reloading the same upon motor trucks and other vehicles for the purpose of moving and transporting this whisky to warehouses or other storage houses wherein it was to be concealed, 'which whisky had been imported into the city of Minneapolis aforesaid from the Dominion of Canada, in barrels upon freight cars, the number and initial of two of said cars being as follows: PMCKY 40479 and Penn. 281781; the initials and numbers of other freight cars being to the grand jury unknown, and said barrels of whisky were concealed and hidden in such freight cars under loads and cargoes of scrap iron as consignments of scrap iron, and moved from Winnipeg, in the province of Manitoba, Canada, to Minneapolis aforesaid, over and upon the lines of the Canadian Pacific Railway Company and Minneapolis, St. Paul and Sault Sainte Marie Railway Company, the aforesaid PMCKY 40479 car containing twenty-five (25) barrels of the aforesaid unlawfully imported whisky was on the 7th day of January, 1920, on a railroad side track near Eighteenth avenue and Second Street North, in the city of Minneapolis aforesaid; the aforesaid Penn. 281781 car, containing twenty-four (24) barrels of the said unlawfully imported whisky, was, on the 16th day of January, 1920, on a railroad side track near Eighteenth avenue and Second Street North, in the city of Minneapolis aforesaid; another car, containing fifteen (15) barrels of the aforesaid unlawfully imported whisky, the initials and number of said car being to the grand jury unknown, was, on the 2d day of January, 1920, on a railroad side track near Sixteenth avenue and Second Street North, in the city of Minneapolis aforesaid.'

The second and third contentions of counsel for the defendants are that it was error to overrule the demurrer to the indictment because it contained no averment of the time or times when the whisky was imported, and because it did not set forth the specific law in violation of which it was imported, nor specify it by title or by reference to the book or page where it might be found. At the time the conspiracy was alleged to have been formed, December 20, 1919, and on the 7th, 8th, and 16th days of January, 1920, when the overt acts therein named were alleged to have been committed, the importation of the whisky from Canada into the United States was and after August 10, 1917, had been prohibited. Food Control Act of August 10, 1917, 40 Stat. 276, 282 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 3115 1/8l); Act of November 21, 1918, 40 Stat. 1045, 1046 (Comp. St. Ann. Supp. 1919, Sec. 3115 11/12gg). The indictment contains averments that the whisky had been imported contrary to law and that it was on the railroad side tracks in Minneapolis on specific days between January 1 and January 17, 1920, and its importation had been prohibited ever after August 10, 1917. In view of these facts and of the customary time within which railroad freight must be unloaded from the cars, the defendant could not have inferred or supposed that the whisky had been imported prior to the prohibition of its importation on August 10, 1917, and the failure of the government to aver the times when it was imported, was not a serious defect in its pleading.

Nor was the fact that the government described the importation as it was described in section 3082 as 'contrary to law,' and did not go further and specify the act of Congress contrary to which it was made, fatal to this indictment especially in view of the well-known fact that, at the time when this conspiracy is alleged to have been formed and to have been in process of execution, the condition of the Prohibition Acts of Congress was a matter upon which the attention of the citizens of the nation was fixed by the public prints and by the constant discussion of the policy of the government they evidenced, and in view of the further fact that the importation contrary to law was not the offense with which the defendant was charged, but a mere element in the description of the offense which was alleged to have been the object of the conspiracy with which alone he was charged and for which alone he was tried. Counsel cite in support of their objections to the indictment here Keck v. United States, 172 U.S. 434, 19 Sup.Ct. 254, 43 L.Ed. 505; United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588; United States v. Hess, 124 U.S. 483, 486, 487, 488, 8 Sup.Ct. 571, 31 L.Ed. 516; Pettibone v. United States, 148 U.S. 197, 13 Sup.Ct. 542, 37 L.Ed. 419; People v. Albow, 140 N.Y. 130, 35 N.E. 438; State v. Howard, 66 Minn. 309, 68 N.W. 1096, 34 L.R.A. 178, 61 Am.St.Rep. 403, and the opinions of the courts in those cases have been examined before reaching the conclusion which has been stated. That the general rules of law and practice announced in those opinions are sound is...