Horwitz v. United States, 1672

• Decision Date: 05 May 1925
• Docket Number: No. 1672,1673.,1672
• Citation: 5 F.2d 129
• Parties: HORWITZ v. UNITED STATES. LIPSITT v. SAME.
• Court: U.S. Court of Appeals — First Circuit

5 F.2d 129 (1925)

HORWITZ v. UNITED STATES.

LIPSITT v. SAME.

Nos. 1672, 1673.

Circuit Court of Appeals, First Circuit.

May 5, 1925.

Leo A. Rogers, of Boston, Mass. (Daniel A. Shea, of Boston, Mass., on the brief), for plaintiffs in error.

George R. Farnum, Asst. U. S. Atty., of Boston, Mass. (Harold P. Williams, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

On December 16, 1921, Israel Horwitz, Joseph M. Barbosa, Joseph Lipsitt, Roy Texeira, William S. Senior, and A. B. Cotnoir were indicted for conspiring at New Bedford to defraud the United States, by causing "to be clandestinely brought into the United States," by the schooner Romance, from foreign ports, large quantities of intoxicating liquor of foreign manufacture, planning to conceal the liquor aboard the Romance "with the view and purpose of depriving" the government and its officers "of the right to inspect said liquors for the purpose of ascertaining whether the said liquors should be landed into the United States."

The indictment then alleges various purchases of liquor in foreign ports by Barbosa, Texeira, and Horwitz. As overt acts, it is alleged that Horwitz, on October 28, 1921, sent a cablegram to Lipsitt at New Bedford, relative to this intoxicating liquor, and that Lipsitt at New Bedford, on the same date, received said cablegram and also sent a cablegram to Horwitz at Bermuda "relative to said intoxicating liquor which was then and there on board the said vessel called Romance." Also that Cotnoir, on November 11, 1921, at New Bedford, made arrangements with Lipsitt to furnish boats to meet the schooner on arrival; and that on November 19, 1921, Senior caused the schooner carrying intoxicating liquor to enter the New Bedford harbor for the purpose of landing said liquor in the United States.

At the trial before Circuit Judge Mack in August, 1922, a verdict of guilty was returned against defendants Horwitz, Lipsitt, Senior, and Texeira, and of not guilty against the defendants Barbosa and Cotnoir.

On October, 1922, the United States attorney entered a nolle prosequi against Senior, on the ground that he had been "of material assistance to the government in the investigation and trial of this case." Texeira was sentenced to pay a fine of $100, and Horwitz and Lipsitt were sentenced to pay fines of $500 each and to be imprisoned in the House of Correction for three months each. Horwitz and Lipsitt have brought the case to this court on writs of error.

The record is bulky, containing the evidence, somewhat abbreviated, of nineteen witnesses, including the six defendants, as well, by reference, of a very large number of exhibits. Not unnaturally, the evidence was markedly conflicting, fully justifying the observation of the trial court in his charge to the jury: "It is perfectly clear, I take it, that there has been some pretty tall lying done in this case."

The case was, in essence, one of fact for the jury, in which credibility played a large part. It was submitted to the jury under instructions, admittedly containing all legally necessary precautions as to the weight to be given to the evidence of an accomplice. Senior, captain of the Romance, testified for the government.

In outline: There was evidence tending to show that Capt. Senior was a one-third owner of the Romance; that the other two-thirds belonged to the Insular Trading Company, a group of Portuguese and American citizens, of which the defendants Texeira and Barbosa were respectively president and treasurer; that in early July, 1921, an agreement, or conspiracy, was entered into at New Bedford, pursuant to which, on July 14, 1921, the Romance cleared for Cape Verde Islands under Senior's command, with Texeira on board listed as a messman; that at the Islands, Senior met the defendants Barbosa, Cotnoir, and Horwitz; that these three were signed on as members of the crew at a wage of $5 a month, which was in fact not paid; that Lipsitt, a lawyer and a brothers-in-law of Horwitz, stayed in New Bedford; that substantial quantities of liquor were bought in French and Portuguese possessions; that cablegrams were sent by Horwitz to Lipsitt in New Bedford; that at Brava, Horwitz told Senior that he (Horwitz) was to arrange to send Cotnoir by steamship from Bermuda to New Bedford; that he (Horwitz) had arranged with Lipsitt to have a boat come out to meet the Romance off No Man's Buoy on Friday, November 18; that the schooner arrived off No Man's Buoy at 2 a. m., Saturday, November 19; that the weather was then foggy; that during the morning, Horwitz said the boat which was to meet them ought to be out at any time; that the crew, under Senior's direction, started to get the cargo of whisky and liquor on deck; that about 2 p. m. a revenue cutter came in sight, necessitating a change of program; that in the manifest which had previously been made out, showing no liquor, Senior then inserted an item showing the liquor; that about 7 or 8 o'clock in the evening, while the revenue cutter was bringing the Romance in, Capt. Senior was hailed by some one in a motorboat, whose voice he recognized as that of the defendant Cotnoir; that other evidence indicated that this was the boat sent pursuant to the plan for landing the liquor as originally made.

The gist of the alleged crime is, of course, the conspiracy to defraud; its success or failure is immaterial. United States v. Rabinowich, 238 U. S. 78, 86, 35 S. Ct. 682, 59 L. Ed. 1211.

Defendant's fundamental contention is that there was no evidence for the jury of a conspiracy to defraud the United States. The argument is that, as R. S. § 3082 (Comp. St. § 5785), was held by a majority of this court in Bruno v. United States (C. C. A.) 289 F. 649, inapplicable to liquor smuggling, the United States could not be thus defrauded by such smuggling, pending reinstatement of section 3082 by the Supplemental Prohibition Act of November 23, 1921, 42 Sts. p. 222, § 5 (Comp. St. Ann. Supp. 1923, § 10138 4/5c). This contention is unsound. Section 3082 was held...