Lee v. United States, 1929.

• Decision Date: 17 August 1926
• Docket Number: No. 1929.,1929.
• Citation: 14 F.2d 400
• Parties: LEE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

14 F.2d 400 (1926)

LEE et al. v. UNITED STATES.

No. 1929.

Circuit Court of Appeals, First Circuit.

August 17, 1926.

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

BINGHAM, Circuit Judge.

The defendant Lee, with two others, was indicted for conspiring to fraudulently import and bring intoxicating liquor into the United States in violation of sections 591 and 593 of the Tariff Act of 1922 (42 Stat. c. 356, pp. 981, 982 Comp. St. §§ 5841h10, 5841h12, 5841h13), and section 3, title 2, of the Act of October 28, 1919 (41 Stat. c. 85, p. 308 Comp. St. § 10138½aa). One of the parties was acquitted, Lee and the other defendant were convicted, and Lee brings this writ of error.

The assignments of error present three contentions: (1) That there was no evidence sufficient to warrant a finding that Lee was guilty; (2) that the court erred in admitting evidence of the seizure of the vessel and the liquor, on the ground that the evidence was wrongfully obtained; that the Coast Guard had no legal authority to seize the vessel and liquor outside the 12-mile limit; (3) that in its charge the court below permitted the jury to take into consideration the admissions of the other two defendants to Finnegan, a deputy surveyor of the customs office, after their arrival at Boston, and after the termination of the conspiracy, as evidence against Lee.

No evidence was introduced by the defendants. The government called three witnesses. Smalley, a member of the Coast Guard, testified that on February 16, 1925, he saw the motorboat D-683 proceeding in an easterly direction from Gloucester; that he followed it out in a Coast Guard patrol boat, being about 500 yards behind it, to a point about 24 miles easterly of Boston Light, where he lost sight of it somewhere about 5 o'clock; that about 6:30 p. m. he discovered the boat alongside the schooner L'Homme; that he put a searchlight on her and told those on board to put up their hands; that he found on board the boat the three defendants and a number of cans of alcohol; that he searched the defendants, put two of his men on board the boat, and took her, the liquor, and the three defendants into Boston.

Finnegan testified that he took the statements of the three defendants on their arrival in Boston; that McNeil, one of the defendants, stated that Lee hired him on Sunday, February 15, to take the boat from Gloucester out to rum row and get a lot of liquor, and that he intended to land the liquor at Gloucester on his return; that, after about 2½ hours' sail, they pulled up alongside of a four-masted schooner; that the crew of the schooner loaded the liquor upon their boat; and that just then the revenue cutter came along and took them.

Finnegan further testified that Viera, one of the defendants, stated to him that on February 15 he met some men in Gloucester whom he did not know, one of whom he afterwards learned to be Lee, and accepted their invitation to go out in a boat on Monday, the 16th; that they left the steamboat wharf at Gloucester after dinner, and sailed 2 or 3 hours; that about sundown they stopped alongside a vessel, the crew of which loaded their boat; and that then the revenue cutter took them.

Finnegan also testified that Lee stated that he lived at 10 Locust street, Gloucester; that on Monday, February 16, he was asked by McNeil to go out and work on the engine of a motorboat; that he ran the engine, and the first thing he knew he was alongside of a schooner; that he did not see any cases of alcohol on board until captured by the revenue cutter.

The registration of the motorboat in Lee's name was put in evidence.

The liquor seized was grain alcohol — intoxicating liquor within the meaning of the Prohibition Law. All the evidence obtained by the search and seizure of the boat and liquor outside the 12-mile limit was admitted subject to the exception of all the defendants. The defendants seasonably moved to suppress this evidence, on the ground that it was obtained by an unlawful search and seizure at a point 24 miles distant from the nearest land. The statement to Finnegan of each defendant was admitted only as against the particular defendant making the statement.

Mrs. Rose Smith testified that she recognized Lee as the person who lived at her house under the name of Isidore Leach; that she knew him by no other name.

At the close of all the evidence the defendants moved for a directed verdict.

We think there was sufficient evidence to warrant the submission of the case to the jury; that, from it, it could be reasonably inferred that on the afternoon of February 16 Lee and the other defendants went out from Gloucester in Lee's motorboat for the purpose of obtaining liquor at rum row and bringing it to Gloucester.

The second and principal contention in the case is whether the evidence procured by the officers of the Coast Guard in visiting, searching, and seizing the motorboat and liquor at a point 24 miles or more from the nearest land was properly admitted in evidence. It is contended on behalf of Lee that the visitation and search of his motorboat, and seizure of the boat and the liquor by the Coast Guard, was illegal and in violation of the Fourth Amendment of the Constitution, and that its admission in evidence was in violation of the Fifth Amendment; that it was illegal and in violation of the Fourth Amendment (1) for the reason that, under section 581 of the Tariff Act of 1922 (Comp. St. § 5841h), the officers of the Coast Guard were without authority to visit, search, and seize any vessel, domestic or foreign, on the high seas more than 4 leagues from the shore; and (2) if the Coast Guard had authority to seize an American vessel more than 4 leagues from the shore, the vessel being engaged in violating a law of the United States, that at the time of the seizure here in question the vessel was not violating any law of the United States; that its presence where it was when seized was lawful, and the fact that it had taken liquor on board at that point was not a violation of any law of the United States; that the liquor at the place of seizure was not contraband and subject to seizure; that the entrance upon and the search and seizure of the vessel and liquor by the Coast Guard differed in no respect from the situations presented in Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann Cas. 1915C, 1177, Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319, Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647, Amos v. United States, 255 U. S. 213, 41 S. Ct. 266, 65 L. Ed. 654, and Flagg v. United States, 233 F. 481, 147 C. C. A. 367.

The contention on behalf of the government is that the visitation, search, and seizure of the vessel and liquor on the high seas and beyond the 12-mile limit was lawful; that if section 581 of title 4 of the Tariff Act of 1922 restricted the authority of the Coast Guard, as to the right of visitation and search of vessels on the high seas, to waters within the 12-mile limit, it did not restrict their authority to such waters as to seizure; that by implication, or under the common law, the Coast Guard were authorized to seize an American vessel on the high seas beyond the 12-mile limit for a violation of our laws; that the vessel in question was violating our laws by having liquor on board and was subject to seizure; that the liquor was contraband and also subject to seizure; and that, the seizure of the vessel and liquor being legal, the evidence procured thereby was competent and properly admitted.

Section 581 of the Tariff Act (42 Stat. p. 979 Comp. St. § 5841h) is the only statute to which our attention has been called, or of which we are aware, defining the authority of the Coast Guard in the visitation, search, and seizure of vessels, American or foreign, on the high seas, and that act, in defining their authority as to these matters, limits it to waters within four leagues of the coast of the United States. It reads:

"Sec. 581. Boarding Vessels. — Officers of the customs or of the Coast Guard, and agents or other persons authorized by the Secretary of the Treasury, or appointed for that purpose in writing by a collector, may at any time go on board of any vessel or vehicle at any place in the United States or within four leagues of the coast of the United States, without as well as within their respective districts, to examine the manifest and to inspect, search, and examine the vessel or vehicle, and every part thereof, and any person, trunk, or package on board, and to this end to hail and stop such vessel or vehicle, if under way, and use all necessary force to compel compliance, and if it shall appear that any breach or violation of the laws of the United States has been committed, whereby or in consequence of which such vessel or vehicle, or the merchandise, or any part thereof, on board of or imported by such vessel or vehicle is liable to forfeiture, it shall be the duty of such officer to make seizure of the same, and to arrest, or, in case of escape or attempted escape, to pursue and arrest any person engaged in such breach or violation."

The Circuit Court of Appeals in the Second Circuit, in an opinion handed down in July, 1926, in the case of United States v. American Steam Screw Underwriter, 13 F. (2d) 433, in construing section 581, expressed the view that this section was intended to give the Coast Guard authority to stop, board, search, and seize foreign vessels coming within the 12-mile limit, but was not intended to restrict their power in this respect as to American vessels beyond the 12-mile limit. In other words, that court apparently considered that...