Haffa v. United States, 4208.

• Decision Date: 07 January 1930
• Docket Number: No. 4208.,4208.
• Citation: 36 F.2d 1
• Parties: HAFFA v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

36 F.2d 1 (1929)

HAFFA v. UNITED STATES.

No. 4208.

Circuit Court of Appeals, Seventh Circuit.

November 27, 1929.

Rehearing Denied January 7, 1930.

John B. Boddie, of Chicago, Ill., for appellant.

John E. Northup, of Chicago, Ill., for the United States.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

SPARKS, Circuit Judge.

The appellant, Titus A. Haffa, was found guilty under each count of an indictment charging, in ten counts, the manufacture, possession, sale, and transportation of intoxicating liquor, in violation of the National Prohibition Act, §§ 3 and 25, tit. 2 (27 USCA §§ 12, 39) and charging in the eleventh count all of said defendants with conspiracy to do each of the acts set forth in the first ten counts, in violation of section 37, Criminal Code (18 US CA § 88).

The appellant was tried jointly with Sam Simons, Joseph Bagheria, Edward Hug, and Joseph Murray, and all were found guilty, and judgment was rendered accordingly.

The defendant Haffa alone presents this appeal. The propositions relied on in briefs and arguments as grounds for reversal are:

(1) The court erred in admitting in evidence proof of different and disconnected minor conspiracies with which appellant was not identified, in order to establish the major conspiracy in count No. 11.

(2) The court erred in permitting government witnesses to testify in rebuttal concerning certain conversations had with appellant relating to gambling operations, drinking, other criminal offenses and other matters derogatory to his character, on the theory that they were collateral to the main issue and hence not subject to rebuttal.

(3) The court erred in declining to receive or to have read a written motion to strike certain evidence from the record.

(4) The court erred in not instructing the jury to disregard such evidence.

(5) The court erred in refusing appellant's tender and offer to read his written instruction No. 3, and in refusing to give the same orally to the jury.

(6) The court erred in not instructing the jury that previous good character in itself may create reasonable doubt.

A portion of the evidence to which defendant Haffa objects, under proposition 1, relates to a conversation between two government agents and a codefendant, Eddie Hug, on January 20, 1928, which the court permitted said agents to detail to the jury over the objection of defendant Haffa, and which is as follows:

"Eddie told us their still had been knocked off by G men five times the preceding month, and that it cost them five grand to fix it up. He said if it had not been for the influence of Haffa in making these people reduce their demands, they would have had to close up. He also said that a detective squad had been to the still the day before and also that day, but that they had gone away. He said they would have to remove the still as soon as they could find a suitable spot because these detective squads were sure to come back."

The indictment charges the conspiracy to have been formed on October 1, 1927, and that defendants did perform and commit certain overt acts in pursuance and furtherance of said unlawful conspiracy, and to effect the object of the same, to wit: "That on divers dates from December 1, 1927, to February 1, 1928, said defendants, at Chicago, in the division and district aforesaid, engaged in the manufacture of alcohol, for beverage purposes." In the conversation of the defendant Hug, referred to above, and which the defendant Haffa contends was erroneously admitted in evidence, we find said Hug admitting ownership in a still at the very time and place covered by the overt act referred to above. This evidence was competent as tending to prove that the defendant Hug had the present ability and the intention to commit the unlawful acts with which he is charged in the indictment.

The mere fact, if it be a fact, that such admitted testimony showed a minor conspiracy to commit an unlawful act other than those charged in the indictment, would not render such evidence incompetent, provided it tended to prove a necessary ingredient of the major conspiracy. That the intention of an alleged conspirator, and his ability, to commit the act in question, are necessary ingredients in a charge of conspiracy, cannot be questioned. The case of Terry v. United States (C. C. A.) 7 F.(2d) 28, 30, cited by appellant, is not in point. In that case evidence was admitted to show a conspiracy violation at Bodega Bay by a part of the defendants, which conspiracy was not charged in the indictment. The court in that case said: "The indictment charges no conspiracy to transport, possess, or sell intoxicating liquor at Bodega Bay, in terms, and avers no overt act to effect the object of such a conspiracy, if one existed." (Italics ours.)

The statement of the law just referred to is merely a different way of stating the elementary principle that no presumption of guilt arises against a person charged with crime from the fact that said person has at some time committed another unrelated crime. In that case it was never contended that there was any relationship between the two conspiracies. In the instant case, material relationship was both charged and proved.

The defendant Haffa is in no position to say that the evidence in no way identified or connected him with the subject-matter of the conversation admitted in evidence. The evidence shows that the government agents, in the first instance, inquired of him as to where they could purchase alcohol. In response thereto be referred them, and introduced them, to the other defendants as persons who were engaged in that business. The deals were made with his knowledge — in his presence, at times — and with his assistance.

On January 4, 1928, appellant told the government agents that he had been running a still up the street; that it cost $20,000, operated 10 hours a day, and had an output of 20 gallons an hour. On February 27, 1928, appellant told said government agents that he and Simons, Bagheria, and Hug were jointly interested in a still which produced 200 gallons of alcohol a day, but that they had temporarily separated their interests on account of the approaching election. The relations of the parties, one to another, were of such a character, and their actions were so linked, as to indicate a common purpose to manufacture, possess, sell, and transport alcohol in violation of the statute, as charged in the indictment. Under such circumstances we are of the opinion that the conversation referred to was properly admitted.

Many instances of the introduction of similar evidence, over appellant's objection, are set forth in appellant's brief under this assignment of error. They raise the same questions as those previously discussed, and, for the reasons heretofore given we hold that in each instance the evidence was properly admitted. The instructions of the court fully protected defendant Haffa from the effect of any evidence of any fact with which he was not connected.

With relation to proposition 2, the record discloses that, when government agent Donahue first met appellant, Donahue represented himself as a gambler and sought advice from Haffa on the subject of investing some personal funds. Donahue further stated that he had been in various rackets for the past eight or nine years. In response thereto appellant stated that he had a beautiful spot in mind that was...