Kuhn v. United States

• Decision Date: 26 March 1928
• Docket Number: No. 5162.,5162.
• Parties: KUHN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

24 F.2d 910 (1928)

KUHN et al. v. UNITED STATES.^*

No. 5162.

Circuit Court of Appeals, Ninth Circuit.

March 26, 1928.

Frank J. Hennessy and Marshall B. Woodworth, both of San Francisco, Cal., for plaintiffs in error Chew Fook Gum and K. C. Lee.

Frank J. Hennessy, of San Francisco, Cal., for plaintiffs in error Wong Tai and Albert Moon.

James B. O'Connor and Harold C. Faulkner, both of San Francisco, Cal., for plaintiff in error Kuhn.

Williams, Kelly, McDonald & Barry, of San Francisco, Cal., for plaintiff in error Leong Chung.

Thomas T. Califro, of San Francisco, Cal., for plaintiff in error Leong Duck.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., for the United States.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

Ten out of thirteen defendants named in an indictment returned in the Northern district of California on May 3, 1926, were found guilty as charged, and from judgments of fine and imprisonment eight of them, Henry Kuhn, Daniel Guy Swinehart, K. C. Lee, Albert Moon, Wong Tai, Chew Fook Gum, Leong Duck, and Leong Chung, severally bring error.

Based upon section 37 of the Criminal Code (18 USCA § 88), the indictment charges a conspiracy to export arms and munitions of war from the United States to China in violation of a Joint Resolution of Congress approved January 31, 1922 (42 Stat. 361), prohibiting such exportation under conditions therein named. In substance the resolution provides that, whenever the President finds that in any country in which the United States exercises extraterritorial jurisdiction (as in China), conditions of domestic violence exist which may be promoted by the use of arms and munitions procured from the United States, and makes proclamation thereof, it shall be unlawful to export such supplies from any place in the United States to such country until otherwise ordered by him, except under such conditions as he may prescribe. Pursuant to the resolution, President Harding, on May 4, 1922, issued a proclamation making the inhibition, without exception or limitation, applicable to China, and such was the law during the entire period covered by the alleged conspiracy.

Specifically the indictment charges that the conspiracy was entered into on or about July 1, 1923, its object being to "export arms and munitions of war from the United States of America into China," and that it was continuously in existence and in process of execution throughout all the time from and after the 1st day of July, 1923, and at the time or times of the commission of each of the overt acts as set forth in the indictment. Nineteen overt acts are pleaded as having been performed in furtherance of the conspiracy, all within the period from October, 1923, to June, 1924, inclusive, most of them being in December, 1923, and January and March, 1924.

The principal witness for the government was one Borresen, who upon a plea of guilty, in the United States Court in China, to a charge of bringing arms into that country, had been sentenced to a year's imprisonment. He testified in substance that in July, 1923, he was employed by the defendant Swinehart to take guns to China. For that purpose, later in 1923, he bought the boat W. H. Talbott, and after putting her in condition he took on several cases of guns at San Francisco, and then a cargo of lumber at Coos Bay, Or., destined for Shanghai. The Talbott sailed from San Francisco on January 24, 1924, and arrived outside of Coos Bay three days later. Having there received the cargo of lumber, she sailed for Shanghai on April 1st, touching at Honolulu on April 21st, and reaching Shanghai June 18th. Upon arrival at Shanghai, the cargo of lumber was discharged and the boat was raided and seized. Other witnesses were called in corroboration, and to connect the several defendants with the enterprise.

The assignments are numerous, but those urged in the several briefs (seven in number) involve the following points:

(1) Declination of the court to advise the jury to acquit.

(2) Whether the evidence sufficiently tended to show the arms were destined for China, or only for Hong Kong.

(3) Rulings in permitting the government to impeach its own witness, Lee Yuk.

(4) Use by government of an exhibit (No. 24) purporting to contain a list of participating owners in the voyage of the Talbott.

(6) A further point, urged by defendants Moon, Lee, Wong Sue Jung, and Chew Fook Gum, involves rulings concerning certain testimony of the witness Borresen.

(6) Urged by defendants Moon and Wong Sue Jung, that there was error in permitting the district attorney to read to the jury from law books.

(7) Urged by defendant Chew Fook Gum, that the district attorney was permitted to argue to the jury the violation by this defendant of other laws.

(8) Chew Fook Gum also assigns as error certain instructions given and certain requests refused.

(9) Point, urged by the defendant Kuhn, that part of his cross-examination was improper.

1 and 2. That at least some of the defendants joined in an enterprise to transport arms from the United States either to Hong Kong or into China, the record leaves no room for doubt. And, when we consider the condition of domestic violence then existing in China, the improbability of British territory being intended as the ultimate destination of such an expedition, and the clandestine manner in which it was organized and carried out, together with the express statements of some of the defendants and other circumstances in evidence, it is difficult to escape the conviction that the arms were intended for China as alleged. The mere fact that at times some of the defendants made contrary statements is inconclusive. Through the screen of self-serving declarations of an innocent purpose it was within the province of the jury to discern the real character of the enterprise.

Manifestly it would be impracticable, within the reasonable compass of an opinion, to set forth a comprehensive analysis of the voluminous direct and circumstantial evidence relied upon by the government to establish the connection of all the defendants with the scheme. It must suffice to say that, mindful of the possibility that, where there are so many defendants, the jury may have failed discriminatingly to consider the case of each separately, we have carefully examined the entire record, and by it are convinced that the lower court was right in denying a motion for a directed verdict, and that in no case was the conclusion reached by the jury unreasonable. True, the specific circumstances relied upon to show participation by some of the defendants are meager, but when they are viewed in the light of the record as a whole they furnish substantial ground upon which to predicate the finding of guilt.

3. Lee Yuk was called as a witness for the government, was interrogated with regard to an incident deemed to be material, but from his answers to a few questions put to him it at once became apparent, either that he had no knowledge, or that he was unwilling to testify against the defendants. Thereupon the district attorney produced what he represented to be a written statement previously made by the witness to government agents, and over the strenuous and repeated objections of defendants he was permitted to read from the document each question and answer therein contained, with a question to the witness, in each case, whether he was not so asked and did not so reply. The procedure was improper, and after reflection, during an ensuing recess of the court, the district attorney, upon the coming in of the court, of his own motion consented that all the objections be sustained, and that all the...