Kott v. United States

• Decision Date: 19 November 1947
• Docket Number: No. 11929.,11929.
• Citation: 163 F.2d 984
• Parties: KOTT et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

163 F.2d 984 (1947)

KOTT et al. v. UNITED STATES.

No. 11929.

Circuit Court of Appeals, Fifth Circuit.

October 23, 1947.

Rehearing Denied November 19, 1947.

Louis Halle, of New York City, Jacob H. Morrison, of New Orleans, La., and Wood H. Thompson and Thos. W. Leigh, both of Monroe, La., for appellants.

Malcolm E. Lafargue, U. S. Atty., of Shreveport, La., for the U. S.

Before HUTCHESON, McCORD, and WALLER, Circuit Judges.

WALLER, Circuit Judge.

The appellants were convicted under Count 3 of an indictment which charged a substantive violation of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 904, by the sale of liquor in excess of the ceiling price and which indictment also, under Count 4, charged a conspiracy to violate that Act.

It is in evidence that Comel John, a merchant dealing in illicit liquor in Vicksburg, Mississippi, and who was working in liaison with agents of the Alcohol Tax Unit of the Treasury Department, contracted, in the State of New York, for the purchase of the liquor for $20 per case in excess of the ceiling price. He paid the legal, or ceiling, price in New York before the liquor was shipped to the John's Beverage Company at Tallulah, Louisiana, for whom John claimed to be acting, and before the bill of lading was released in New York the sellers required John to pay to defendant Kott, who was then in Tallulah, the sum of $7,120, the agreed amount in excess of the ceiling price.

By arrangement between John and the Federal agents, this $7,120 had been marked by the agents before payment by John to Kott. The latter had come to Jackson, Mississippi, for the purpose of collecting the over-ceiling money, but upon John's insistence Kott came to Tallulah to get the money. After paying over the money, John gave some prearranged signal to the Federal agents, who shortly thereafter overtook John and Kott as they traveled in an automobile along the highway from Tallulah toward Vicksburg. Without either a warrant or a search warrant, the agents arrested Kott, searched him, and took from his person the $7,120 of marked money paid to him by John.

The appellants filed a motion to transfer the case to the Southern District of New York. This motion was denied, as was also their motion for the suppression of the evidence and the return of the $7,120 which latter motion asserted that the evidence was illegally obtained in that there was no warrant of arrest and no order of Court, and that the arrest of Kott and the seizure of the monies, paper, and memorand were illegal and in violation of the defendant's constitutional rights. This motion was also denied by the trial court, from which order an appeal was taken to this Court, which we have today dismissed because it is an appeal from an interlocutory order.¹

The defendants were tried in the District Court for the Western District of Louisiana and the defendant Semel was acquitted, but the other defendants were convicted on Counts 3 and 4 and sentences under Count 4 were imposed as follows: Kott, imprisonment for 1 year and 1 day; Weiner and Needleman, imprisonment for six months and fine of $10,000 each. Sentences under the convictions on Count 3 were suspended and the parties put on probation for five years.

There are 17 specifications of error, but we think that the following only merit discussion here:

1. That no offense was committed in the Western District of Louisiana and that neither jurisdiction nor venue was lodged in the Court below.

2. That the case should have been removed to the Southern District of New York under defendants' motion based on Rule 21(b) of Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687.

3. That the defendants were entrapped into the commission of the alleged offense by the Federal agents, acting in concert with Comel John, and the Court should have directed their acquittal.

4. That the offense of conspiracy was completed upon the entering into of the agreement to commit an offense and did not require the commission of an overt act, wherefore the overt act committed in Louisiana was no part of the offense alleged in Count 4.

5. That the Court erred in giving certain charges and in refusing certain charges to the jury.

6. That the Court erred in admitting the testimony of John as to the statements made by one Hillman on the theory that John and Hillman were co-conspirators.

We shall dispose of these specifications in the order set out above.

First Specification. The evidence showed that the conspiracy was hatched in New York. It shows that an overt act was committed at Tallulah in the Western District of Louisiana in receiving the over-ceiling price at Tallulah which John paid to Kott, one of the conspirators. It is argued that in order to establish the offense of a conspiracy to violate the Act it is not necessary to prove an overt act, and that since an overt act is no part of the offense, the commission of an overt act in Tallulah would not confer jurisdiction upon the lower Court, nor lay the venue in the Western District of Louisiana. This argument is unsound. It is well established that in cases where it is not necessary to prove an overt act in order to prove an offense, nevertheless, the defendant in such a case may be tried in any district where an overt act was committed. See Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 50 L.Ed. 90; United States v. New York Great Atlantic & Pacific Tea Co., 5 Cir., 137 F.2d 459.

Moreover, the Emergency Price Control Act of 1942, Title 50 U.S.C.A.Appendix, § 925, provides that criminal proceedings for violation of the Act "may be brought in any district in which any part of any act or transaction constituting the violation occurred, * * *."

We think that the acceptance of the over-ceiling price in the State of Louisiana was the ultimate act in the transaction and was sufficient not only to confer the jurisdiction upon the lower Court but to lay the venue in the Western District of Louisiana.²

Furthermore, Sec. 103, Title 28 U.S.C.A. provides that: "When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein."

Second Specification. The next contention of the appellants is that the case should have been removed to New York under their motion based upon Rule 21(b) of Federal Rules of Criminal Procedure,³ but a reading of the rule is a sufficient answer to this contention for before a court makes an order for the transfer of a proceeding to another district it must be satisfied that it is "in the interest of justice" that the proceeding be transferred. We are of the opinion that the rule leaves the question of a transfer of that sort to the discretion of the District Judge, and that merely an erroneous exercise of that discretion will not require a reversal. An abuse of discretion is necessary. This...