Louie v. United States

• Decision Date: 16 November 1914
• Docket Number: 2403.
• Citation: 218 F. 36
• Parties: LOUIE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

218 F. 36

LOUIE v. UNITED STATES.

No. 2403.

United States Court of Appeals, Ninth Circuit.

November 16, 1914

By an indictment filed in the court below on April 2, 1913, the defendant and one James A. Ralston were jointly charged with a violation of section 5440 of the Revised Statutes of the United States (section 37 of the Criminal Code; Act March 4 1909, c. 321, 35 Stat. 1096 (Comp. St. 1913, Sec. 10201)). That section provides as follows: 'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be liable to penalty of not less than one thousand dollars and not more than ten thousand dollars or imprisonment not more than two years.'

It was alleged in the indictment that on the 1st day of September 1912, the defendants conspired to commit an offense against the United States, 'by corruptly, willfully, knowingly and fraudulently agreeing together fraudulently and knowingly to import and bring into the United States, as aforesaid, opium prepared for smoking, and to receive, conceal, buy, sell, and facilitate the transportation, concealment, and sale of such opium, knowing the same to have been fraudulently imported, contrary to law as aforesaid. ' The offense which it was charged the defendants conspired to commit was a violation of section 3082 of the Revised Statutes (Comp. St. 1913, Sec. 5785), which provides as follows: 'If any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any merchandise, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury.'

The subject-matter of the conspiracy, the objects thereof, and the means by which such objects were to be effected were fully set forth in the indictment. From the allegations thereof it appeared that the principal object of the conspiracy was that the defendant Ralston should go into the Dominion of Canada and there receive opium for smoking purposes; that he should bring such opium into the United States, and that the defendant Louie should receive it, and should conceal, transport, and sell the same; that the defendant Louie should furnish Ralston with money with which to pay the expenses of the trip into Canada, and with which to purchase the opium; and that the defendant Louie should pay to Ralston certain sums of money as his reward and compensation from the proceeds arising from the sale of the opium, the balance of such proceeds to be retained by Louie. It was further alleged in the indictment that after the formation of the conspiracy, and during its continuance, to wit, on March 5, 1913, to further effect the object of the conspiracy, Ralston had in his possession and concealed in the city of Seattle, Wash., and fraudulently and knowingly transported and facilitated in the transportation, and aided and assisted in transporting, 64 five-tael tins of opium prepared for smoking; Ralston then and there well knowing that such opium had theretofore been imported and brought into the United States contrary to law. This last charge is the overt act required by the statute to complete the offense of conspiracy. Various other acts on the part of the defendant Louie and Ralston, alleged to have been performed in furtherance of the conspiracy, were set forth in the indictment. They are immaterial to any issue in the present case. Upon the trial of the case the defendant Louie was found not guilty by the jury, and the judgment of the court entered thereon has not been reversed, and is still in full force and effect.

On September 12, 1913, a second indictment was filed in the court below against the defendant Louie and James A. Ralston for violation of the act of February 6, 1909, entitled 'An act to prohibit the importation and use of opium for other than medicinal purposes.' 35 Stat. 614. The indictment was in eight counts. The second count, which is the only one with which we are concerned, was as follows: 'On or about the 5th day of March, 1913, one James A. Ralston, within the Northern division of the Western district of Washington, and within the jurisdiction of this court, did willfully, knowingly, unlawfully, and feloniously receive, conceal, buy, sell, and facilitate the transportation, concealment, and sale of certain merchandise of foreign manufacture, to wit, sixty-four (64) five-tael tins of opium, prepared for smoking, after said opium had been imported into the United States contrary to law, and the said opium, prior to the time when the said James A. Ralston did receive, buy, sell, and facilitate the transportation, concealment, and sale thereof, as aforesaid, had been willfully, knowingly, unlawfully, and feloniously imported into the United States, into the Northern division of the Western district of Washington, contrary to law, from some foreign country to the grand jurors unknown, by some person or persons to the grand jurors unknown, he, the said James A. Ralston, then and there well knowing that the same had been imported as aforesaid into the United States contrary to law; * * * that Charlie Louie did then and there, on or about said 5th day of March, 1913, willfully, knowingly, unlawfully, and feloniously aid, abet, counsel, command, induce and procure the said James A. Ralston, as aforesaid, willfully, knowingly, unlawfully, and feloniously to receive, conceal, buy, sell, and facilitate the transportation, concealment, and sale of said opium, prepared as aforesaid, after the same had been imported contrary to law, as aforesaid, they, the said James A. Ralston and said Charlie Louie, then and there well knowing that the same had been imported, as aforesaid, into the United States contrary to law. * * * '

The charge that the defendant Louie aided, abetted, counseled, commanded, induced, and procured Ralston to commit the offense charged against him is based upon section 332 of the Criminal Code, approved March 4, 1909 (35 Stat. 1152, c. 321 (Comp. St. 1913, Sec. 10506)), which provides: 'Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.'

The defendant Louie interposed a plea of former acquittal to certain counts of the indictment, including the second count, based upon the indictment filed against him on April 2, 1913, and the subsequent acquittal by the jury thereunder. The United States demurred to the plea of former acquittal, and the demurrer was sustained. Louie was found guilty of count 2, and not guilty of the other counts.

Vanderveer & Cummings, of Seattle, Wash., for plaintiff in error.

Clay Allen, U.S. Atty., and Albert Moodie, Asst. U.S. Atty., both of Seattle, Wash., for the United States.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

1. It is assigned as error that the court sustained the demurrer to the defendant's plea of former acquittal. The objection to the order of the court presents the question whether upon the face of the record it appears as matter of law that the offense charged in the second count...