Leonard v. United States, 1801-1803.

• Decision Date: 27 May 1925
• Docket Number: No. 1801-1803.,1801-1803.
• Citation: 6 F.2d 353
• Parties: LEONARD et al. v. UNITED STATES (two cases). LYNCH v. SAME.
• Court: U.S. Court of Appeals — First Circuit

6 F.2d 353 (1925)

LEONARD et al. v. UNITED STATES (two cases).

LYNCH v. SAME.

Nos. 1801-1803.

Circuit Court of Appeals, First Circuit.

May 27, 1925.

David H. Keedy, of Springfield, Mass. (Brooks, Kirby, Keedy & Brooks, of Springfield, Mass., on the brief), for plaintiffs in error.

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

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge.

The defendants, plaintiffs in error in the above-entitled cases, were convicted of having unlawful possession of liquor in violation of the National Prohibition Act (41 Stat. at Large, c. 85, § 25; Comp. St. Ann. Supp. 1923, § 10138½m) in the federal District Court for Massachusetts upon indictments charging that offense. Previous to finding the indictments, search warrants were issued in each matter by a United States commissioner, upon which intoxicating liquor was seized and later used in evidence at the trial of these defendants.

In cases Nos. 1801 and 1803 the search warrants were directed to "Walter H. Sullivan, federal prohibition agent, and his assistants, or any or either of them." In No. 1801 the warrant was served and returned by Charles F. Trembley, a federal prohibition agent; in No. 1803 it was served by James R. Horgan, a federal prohibition agent, but was returned as having been served by Edward H. Murphy, a federal prohibition agent.

In No. 1802 the warrant was directed to "John M. Mallon, Jr., general federal prohibition agent, and his assistants or any or either of them," and was served and returned by Richard F. Leeder, a general prohibition agent.

In Nos. 1801 and 1803 the defendants seasonably moved that the property and things seized and all information concerning the same and all other facts and information obtained by the search of said premises by means of said search warrants be excluded from evidence on the trial of said indictments, setting out 13 reasons therefor; and in No. 1802, in addition to the foregoing, they asked that the search warrant and all proceedings thereunder be quashed, assigning 8 reasons.

These motions were denied, subject to the defendants' exceptions, and at the several trials the evidence obtained through the searches and seizures was admitted, subject to the defendants' exceptions.

The first objection to each of the search warrants is that they were not directed to a "civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, or to a person so duly authorized by the President of the United States," as required by section 6, title 11, of the Espionage Act (40 Stat. at Large, p. 229; Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496¼f).

This objection is without merit. In Keehn v. United States, 300 F. 493, this court held that a prohibition agent appointed by the Commissioner of Internal Revenue for the enforcement of the Prohibition Act, although not an officer of the United States within the meaning of article 2, § 2 of the Constitution, was an officer to whom a search warrant might be properly issued and by whom it might be served; and in Steele v. United States, 45 S. Ct. 417, 69 L. Ed. — decided by the Supreme Court April 13, 1925, it was held that a prohibition agent was a civil officer of the United States, within the meaning of that expression as used in the Espionage Act, that the expression "civil officer of the United States," as used in that act, does not mean an officer in the constitutional sense, and that the words of description there used are to designate a civil officer rather than a military agent of the government and one "duly authorized to enforce or assist in enforcing any law of the United States."

The second objection is that the search warrants were directed to a federal prohibition agent or a general federal prohibition agent and that there were no such officer or officers and no such designation known under the Constitution or statutes of the United States. We think this objection is answered by what we have already said. The statutes of the United States authorize the appointment of agents by the Commissioner of Internal Revenue to enforce the Prohibition Law, and such agents may properly be termed federal prohibition agents.

The third objection is that the direction in the several warrants was to a particular individual as a federal prohibition, or general federal prohibition agent, and his assistants or any or either of them, and that there is no class of officers known to the laws of the United States as assistants of federal prohibition agents, whether the...