MacDaniel v. United States

Citation294 F. 769
Decision Date08 January 1924
Docket Number3839.
PartiesMacDANIEL v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Robt. R. Nevin and Earl H. Turner, both of Dayton, Ohio (Wellmore B. Turner and John W. Kalbfus, both of Dayton, Ohio, on the brief), for plaintiff in error.

James R. Clark, Sp. Asst. Atty. Gen. (Benson W. Hough, U.S. Atty of Columbus, Ohio, on the brief), for the United States.

Before DENISON and DONAHUE, Circuit Judges, and WESTENHAVER District judge.

WESTENHAVER District Judge.

The indictment charges Charles C. MacNabb, M. J. Mulholland, and the plaintiff in error, J. L. MacDaniel with the crime of criminal conspiracy. The offense they conspired to commit is averred to be a violation of section 213, Criminal Code (Comp. St. Sec. 10383), viz.: That they conspired to deposit and caused to be deposited, and knowingly sent or caused to be sent, letters, packages, and tickets concerning a lottery offering prizes depending in whole or in part upon lottery or chance, in the mails of the United States. This lottery concerning which the letters and packages were mailed need not be described in detail, because no criticism is made as to the sufficiency of the indictment, nor is it denied that the scheme was in fact a lottery. It is sufficient to say that the lottery was of the familiar kind popularly known as baseball pools. MacNabb and Mulholland entered pleas of guilty and were not put on trial. MacDaniel was tried alone found guilty, and sentenced, and prosecutes error.

The errors assigned and relied on pertain to the admission of certain evidence, and certain observations with respect thereto by the trial judge in his charge. Of these, three only were urged in oral argument or call for separate comment.

1. Harry Hopf, a United States postal inspector, called on behalf of the government, identified Exhibits A and B, the lottery tickets specially set forth in the indictment, an envelope in which they were inclosed, and other inclosures as having been delivered through the United States mail to one Henry Janser, at Hamilton, Ohio. He then testified that on August 9, 1921, MacNabb admitted to him that he had mailed this envelope and its contents to Janser. This testimony as to this admission was objected to and exception noted. The Court in his charge said:

'If there was a conspiracy, and the mails were to be used, and if MacNabb was a member of that conspiracy, then the mails were used, because it is uncontradicted here that MacNabb used them.'

This comment was also excepted to on the ground that there is no evidence in the record showing that MacNabb ever used the mail. Comment is made in counsel's brief on a similar observation with respect to like documents mailed to Mike Doda and Frank Violet, but no exception was taken thereto, and no objection or exception appears to have been taken to the introduction of their testimony.

It is urged in support of this assignment of error that the only evidence of mailing is MacNabb's admission, and this admission, it is urged, was not competent against MacDaniel, the only person on trial. It is immaterial, in our view of the case, to determine whether MacNabb's admission was made in his own interest, or touching exclusively his own affairs, and not in furtherance of the alleged conspiracy, or was made after the conspiracy ended. If it was improper to receive this admission when offered, the error was later fully cured. Janser's testimony, introduced later, and not denied, shows clearly that this documentary evidence was in fact mailed or caused to be mailed by MacNabb. The envelope containing the inclosures was received by Janser from the United States mails in the presence of Hopf, and contained the usual post office stamps showing its transmission in the usual course. Among the inclosures was a return envelope addressed to MacNabb at his Dayton place of business, and a bill for the inclosed tickets and a blank form for reports of sales. Janser testifies that he had known MacNabb and had similar business transactions with him since early in the spring; that during the intervening period he had received similar mail matter through the mails; that he had filled out similar blank reports and inclosed them with remittances to MacNabb's Dayton address; that for part of the period he had had similar transactions by going to Dayton and meeting MacNabb at the given address, obtaining like lottery tickets and blanks, delivering the same to MacNabb, and making settlements by paying money. In view of this long-continued course of business, and the personal participation therein of MacNabb, and the recognition by him that he was Janser's correspondent at Dayton, no other inference is permissible than that this last parcel of mail matter was either mailed or caused to be mailed by him.

2. The witness Hopf also produced and identified certain other lottery tickets, similar to Exhibits A and B, and reports and forms like those mailed to Janser, which he had obtained by search of MacNabb's place of business at Dayton. This search was made after MacNabb had been lawfully arrested, but pursuant to a search warrant which it is said is void, because issued without a sufficient supporting affidavit. Over objection and exception this evidence was admitted, on the theory that any objection to the manner in which the evidence was obtained was available only to MacNabb, who was not on trial, and was not available to MacDaniel.

Passing all questions as to the legality of the search and seizure, we agree in the view of the court below. An objection of this nature, it is well settled, is available only to the person whose premises have been unlawfully searched and whose documents have been unlawfully seized. See Remus v. United States (6 C.C.A.) 291 F. 501, 511; Haywood v. United States (7 C.C.A.) 268 F. 795, 803. In Wilson v. United States, 221 U.S. 361, 31 Sup.Ct. 538, 55 L.Ed. 771, Ann. Cas. 1912D, 558; Wheeler v. United States, 226 U.S. 478, 33 Sup.Ct. 158, 57 L.Ed. 309, and Johnson v. United States, 228 U.S. 457, 33 Sup.Ct. 572, 57 L.Ed. 919, 47 L.R.A. (N.S.) 263, it is held that officers of a corporation may be compelled to produce corporate records and documents, even after they have succeeded to the title thereto, and that the same may be used in evidence against them on a criminal charge. If Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. 319, is thought to contain anything to the contrary, it must be regarded as limited by Essgee Co. v. United States, 262 U.S. 151, 157, 43 Sup.Ct. 514, 67 L.Ed. 917. In Schenck v. United States, 249 U.S. 47, 39 Sup.Ct. 247, 63 L.Ed. 470, it is likewise held that records and papers seized under a search warrant directed against a Socialist headquarters may be used in evidence against the secretary, from whose personal possession the same were taken. It is likewise held that evidence obtained by an illegal search and seizure by state officers or agents, not participated in by United States officers or agents, is admissible in a criminal prosecution in the United States courts against persons from whose possession they were thus wrongfully taken. Weeks v. United States, 232 U.S. 383, 398, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Twining v. New Jersey, 211 U.S. 78, 29 Sup.Ct. 14, 53 L.Ed. 97; United States v. O'Dowd (D.C.) 273 F. 600; Kanellos v. United States (4 C.C.A.) 282 Fed.461; Robinson v. United States (9 C.C.A.) 292 F. 683. In Burdeau v. McDowell, 256 U.S. 465, 41 Sup.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159, it was held that incriminating documents procured by private parties by burglarizing one's office and blowing open one's safe, may be retained and used by the United States authorities to prosecute such person for a crime against the United States. These several cases illustrate and support the principle upon which rests the decision in the Remus Case. They also show that the right to complain because of the federal Constitution is a privilege personal to the wronged party, and that it is not available in any event, unless the wrongful search and seizure was made or participated in by officers or agents of the United States.

3. The witness Hopf also produced and identified certain documents obtained by searching the printing office of MacDaniel at Indianapolis, Ind. These documents consist chiefly of original letters written and mailed by Mulholland at Cleveland, Ohio, to MacDaniel at Indianapolis, and carbon copies of what purport to be replies thereto by MacDaniel. They were admitted in evidence over objection and exception, and Mulholland, when called as a witness, was permitted to testify with respect thereto. They were material evidence tending to show that MacDaniel and Mulholland, as well as others associated with Mulholland, were engaged in the criminal conspiracy charged in the indictment. At the time the search was made, MacDaniel had not been arrested; but Hopf had applied to a judge of the city court of Indianapolis, had made an affidavit before him, and had procured a search warrant to be issued for the premises in question, directed to city police officers, who accompanied Hopf to the premises, and took the leading part in serving the warrant and making the search and seizure.

It was urged below that the warrant is void, and the search and seizure illegal because neither the affidavit nor the preliminary examination of Hopf conformed to the specific requirements of Act of Congress June 15, 1917 (Comp. St 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4a et seq.) The trial court, being in doubt as to whether the warrant was valid under the Indiana law, admitted the documents on the theory that the evidence tended to show that MacDaniel had voluntarily consented...

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