De Luca v. United States, 99.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 299 F. 741
• Docket Number: 99.
• Parties: DE LUCA et al. v. UNITED STATES.
• Decision Date: 15 May 1924

299 F. 741

DE LUCA et al.
v.
UNITED STATES.

No. 99.

United States Court of Appeals, Second Circuit.

May 15, 1924

Otho S. Bowling, of New York City (Vine H. Smith, of New York City, of counsel), for plaintiff in error De Luca.

Samuel F. Frank, of New York City, for plaintiff in error Pavlou.

William Hayward, U.S. Atty., of New York City (Herman L. Falk, Asst. U.S. Atty., of New York City, of counsel), for the United States. [299 F. 742]

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MANTON, Circuit Judge.

The plaintiffs in error were tried on two indictments, which were consolidated. The first indictment charged the plaintiffs in error and seven other defendants with conspiracy to defraud the United States, by removing 20 cases of opium, on which import duty had not been paid, from a bonded warehouse, without payment of the duty; to procure export withdrawal permits by falsely representing that the opium was still in the warehouse and would be exported; to withhold the opium from exportation, concealing it in an unknown place, and distributing it throughout the United States. The overt acts charged are that the plaintiff in error Pavlou asked two other defendants to obtain a purchaser for 102 pounds of opium; one of the untried defendants received $500 from an unknown person; another paid $500 to Pavlou, and still another defendant went to the Anchor Warehouse, Inc., and delivered 102 pounds of opium to unknown persons; that the plaintiff in error De Luca delivered 102 pounds to one of the defendants; that the warehouse company delivered an unknown quantity of opium to an unknown person; that the plaintiff in error Pavlou signed a contract for the sale by Pavlou to one of the defendants of 16 cases of opium; and that 20 wooden cases were removed from the Anchor Warehouse, Inc., all of which was alleged to be a violation of section 37 of the United States Criminal Code (Comp. St. Sec. 10201). The second indictment charged the sale, in a package which was not the original stamped package, or without a written order in the form issued by the Commissioner of Internal Revenue.

At the opening of the trial, on motion of the United States attorney, there was a severance in the conspiracy indictment as to the defendants, except the plaintiffs in error. A motion was then made to consolidate the two indictments, one of conspiracy and one of violation of the Harrison Act. The first indictment was against nine defendants, whereas the second was against five defendants. The motion to consolidate was granted over the objection and exception of counsel for the plaintiffs in error. No motion was made to sever in the case of the indictment under the Harrison Act (Comp. St. Secs. 6287g-6287q).

There was testimony from which the jury could conclude that on July 5, 1921, 12 cases of opium arrived at the port of New York and were entered in the customs house by the plaintiff in error Pavlou. On January 4, 1922, 8 more cases arrived and were likewise entered by Pavlou. The duties were not paid, and all 20 cases reached the appraisers' stores. There they were weighted and found to contain a total net weight of 1,194 1/8 pounds and were subject to a duty of $3 per pound. Thereafter the 12-case lot was delivered to the Anchor Warehouse, Inc., on July 22, 1921, and 8 more to the same warehouse on January 17, 1922. Thereupon De Luca originated the plan and carried it into execution whereby the opium in the warehouse, through the assistance of Pavlou, was taken out and sold, and stones and bricks were put in the cases and exported to Cuba and Mexico. The details of how this was done and the assistance rendered by the other defendants [299 F. 743] is not of importance for our present consideration of the case. But it is sufficient to say that the duty was not paid and the opium was illicitly and unlawfully taken out. But it was not established during the trial that the 102 pounds of opium which were illegally sold were any part of the 20 cases of opium imported, and which was testified to have been the subject of the conspiracy alleged in the other indictment. There is a concession as to this as follows:

'The Court: Is this 102 pounds part of the 20 cases

'Mr. Falk: Well, I do not say that it is part of the 102 pounds that came out of these 20 cases. I cannot, nor can any human being, state whether or not this particular opium ever came out of those cases.'

There is no proof showing that the 102 pounds of opium, the subject of the Harrison Act indictment, did in point of fact, come from the 20 cases. The court, however, adhered to its ruling that the two cases be tried together. The following request to charge was made:

'At the request of the defendant De Luca I make this charge: Defendant De Luca requests the court to charge the jury that there is no evidence against the defendant De Luca, supporting the indictment under the Harrison Act or the sale of the 100 pounds of opium, except the testimony of William J. Sardo that on April 6th the defendant De Luca gave to him (Sardo) two bundles containing that opium. * * *

'Mr. Falk: I also request your honor to charge the jury that the jury may also infer from all other circumstances as to whether or not

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