Maresca v. United States

• Decision Date: 27 September 1921
• Docket Number: 190.
• Citation: 277 F. 727
• Parties: MARESCA et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

277 F. 727

MARESCA et al. v. UNITED STATES.

No. 190.

United States Court of Appeals, Second Circuit.

September 27, 1921

Manton Circuit Judge, dissenting. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

This cause comes here on writ of error to the District Court for the Southern District of New York.

The defendants were tried upon an indictment which was filed on February 10, 1920, and which charged them with a violation of the provisions of various acts of Congress respecting distilled spirits. The trial was commenced on June 10, 1920. The jury returned the verdict on June 24, 1920. Sentences were imposed on July 2, 1920.

The Promotion Sales Company, Inc., the Herba Products Company, and the Gramatan Company, Inc., all named in the indictment, were corporations organized under the laws of the state of New York. The government entered a nolle prosequi and dismissed the indictment as to the Promotion Sales Company. That company appears to have been a holding company, and it acted as a sales agent for the other companies. The Herba Products Company manufactured flavoring extracts, mints, lozenges, and other varieties of candy. The Gramatan Company manufactured the Gramatan hair tonic and the Quo Vadis hair tonic. The defendant Maresca was the president and sole owner of the Herba Products Company. Rubino was the president of the Gramatan Company. De Angelis was the treasurer of the latter company as well as a stockholder therein. Lipari, who was jointly indicted, was a shipping clerk and was acquitted by the jury. The remaining defendants were convicted.

The indictment originally contained 11 counts, but counts 2, 4, 5, 7, and 8 were dismissed by the court before the case was submitted to the jury. The convictions were on each of the remaining counts, 1, 3, 6, 9, 10, and 11.

Count 1 of the indictment charged a conspiracy to sell distilled spirits for beverage purposes in violation of the War Prohibition Act and of the Lever Act. Section 37, U.S.C.C.

Count 3 charged an unlawful sale for beverage purposes of distilled spirits made from food products after September 9, 1917. Act Aug. 10, 1917. This is the Lever Act, 40 St. at L. 276.

Count 6 charged the removal of distilled spirits on which the tax had not been paid to a place other than a distillery warehouse in violation of Rev. St. Sec. 3296.

Count 9 charged a similar offense.

Count 10 charged the sale of distilled spirits for beverage purposes, and not for export. Act Nov. 21, 1918. This is the War Prohibition Act. 40 St.at L. 1045.

Count 11 charged the carrying on the business of a wholesale liquor dealer without having paid the special tax in violation of section 16, Act Feb. 8, 1875. 18 St.at L. 307.

No demurrer, motion to quash, or other plea was filed, and no motion for a bill of particulars was made. But after the jury had been impaneled and sworn counsel for defendants moved to dismiss the indictment on the ground that it failed to charge the commission of a crime. The motion to dismiss was granted as to counts hereinbefore specified and denied as to the others. The defendants were convicted on each of the counts not dismissed.

The sentences imposed were as follows:

Henry F. Maresca sentenced to two years and $5,000 on count 1; one year and $1,000 on counts 3 and 10; two years and $5,000 on count 6; two years and $5,000 on count 9, two years and $1,000 on count 11-- sentence on each count to begin from the same date.

Giovanni Rubino sentenced to 20 months and $5,000 on count 1; one year and $1,000 on counts 3 and 10; 20 months and $5,000 on count 6; 20 months and $1,000 on count 11-- sentence on each count to begin from the same date.

Charles De Angelis sentenced to 15 months and $5,000 on count 1; one year and $1,000 on counts 3 and 10; 15 months and $5,000 on count 6; 15 months and $5,000 on count 9; 15 months and $1,000 on count 11-- sentence on each count to begin from the same date.

Gramatan Company, Inc., sentenced to pay a fine of $5,000 on count 1; $1,000 on counts 3 and 10; $5,000 on count 6; $5,000 on count 9; $1,000 on count 11.

Herba Products Company sentenced to pay a fine of $5,000 on count 1; $1,000 on counts 3 and 10; $5,000 on count 6; $5,000 on count 9; $1,000 on count 11.

Place of confinement to be in the United States Penitentiary, Atlanta, Ga.

The total amount of the fines imposed aggregate $85,000.

John J. Curtin and Elijah N. Zoline, both of New York City, for plaintiffs in error.

Francis G. Caffey, U.S. Atty., of New York City (Ben A. Matthews, Sp. Asst. U.S. Atty., of New York City, of counsel), for the United States.

Before WARD, ROGERS, and MANTON, Circuit Judges.

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

This case is one of considerable importance not only to the defendants, because of the severe sentences imposed, but to the government, because of the questions raised as to the construction to be given to certain acts of Congress for the violation of which the defendants have been convicted. The District Judge who imposed the sentences was, of course, invested with sole discretion, without the limits fixed by the statutes, of determining the extent of the punishments to be inflicted, and in the discharge of that duty he was well aware that sentences should be imposed which are sufficiently severe to cause the laws of the United States to be obeyed. The question which this court is to determine is as to the validity of the indictment and of the sentences imposed.

We are presented with a document marked 'Bill of Exceptions.' It appears to have been signed and filed on December 20, 1920. As the judgments of the court were entered on July 2, 1920, the term of the District Court expired with September 30, 1920, under rule 5, automatically extending the term 90 days after the entry of final judgment. Defendants rely on an oral statement, which is before us only because incorporated in the so-called bill of exceptions, which was made by the District Judge from the bench on July 2, 1920, and which was as follows:

'I will extend it (the term) until November 1st; and I am quite sure if it becomes necessary, I will have the power to grant an additional extension.'

No minute or docket entry was made of the remark, and no order was signed by the judge until November 3, 1920, when, over the government's objection, an order was signed purporting to extend the term to December 8th. This order was filed on November 4th, and on November 29th a further order again extending the term was signed extending the term to January 5, 1921. There is authority for holding that an oral statement extending the time for filing a bill of exceptions is not of any binding force unless entered in the docket. Barstow v. Marsh, 4 Gray (Mass.) 165; Doherty v. Lincoln, 114 Mass. 362; Klein v. State, 157 Ind. 146, 60 N.E. 1036. But for the purpose of the argument we will assume, without deciding, that the oral order extending the term to November 1st was valid. In that case the second order of November 3d, extending the term to December 8th would be invalid, as was the order of November 29th, as the term had expired when the extension on November 3d was granted. It is said, however, that the District Judge in his original and oral extension of the term said: 'I will extend it until November 1st; that is four months. ' Where time is defined by a particular date as well as by the number of days, and the two are inconsistent, it is very doubtful at the best whether the number of days named can overcome the particular date specified. But if they be given controlling effect, and we do not decide that they are entitled to it, the term would be extended to and including November 2, 1920. Then, as November 2d, being election day, was a legal holiday, it is urged that this would give an additional day, and therefore made the order signed on Monday, November 3d, valid; counsel insisting that it is well settled that, if the last day for settling and filing a bill of exceptions falls on a Sunday or on a holiday, the bill may be settled on the following day. And our attention is called to the following cases: Bacon v. State, 22 Fla. 46; Harris v. Atlanta, 62 Ga. 290; Evans & Hollinger v. Chicago, etc., R.R. Co., 76 Mo.App. 468; Cash v. Penix, 11 Mo.App. 597; Enck v. Gerding, 63 Ohio St. 175, 57 N.E. 1083-- in which it has been so decided.

In Siegelschiffer v. Penn Mutual Life Ins. Co., 248 F. 226, 160 C.C.A. 304, this court held, in computing the time within which an appeal or writ of error can be taken or sued out after entry of judgment, that if the last day of the six months' period falls on Sunday, the act cannot be lawfully done on Monday. In so holding we followed a like decision of the Circuit Court of Appeals in the Eighth Circuit (Johnson v. Meyers, 54 F. 417, 4 C.C.A. 399), and one by the Circuit Court of Appeals in the Ninth Circuit (Meyer v. Hot Springs Imp. Co., 169 F. 628, 95 C.C.A. 156).

A bill of exceptions was unknown to the early common law. 4 Chitty Gen.Pr. 2. It was introduced by the Statute of Westminster II (13 Edw. I) Stat. 1, c. 31, A.D. 1285. It is plainly common law in the United States, but in both countries has been held not to extend to criminal causes. Reg. v. Alleyne, 4 Ell. & B. 186; Vane's Case, 6 How.St.Tr. 119, 130, 131; Reg. v. Jelly, 10 Cox, Crim.Cas. 553; People v. Holbrook, 13 Johns. (N.Y.) 90; Ex Parte Barker, 7 Cow. (N.Y.) 143; Ned v. State, 7 Port. (Ala.) 187. And see Bishop's New Cr. Proced. (2d Ed.) Sec. 1265. The right to such a bill in a criminal case in the federal courts is statutory. And, as we pointed out in Buessel v. United States, 258 F. 811, 816, 170 C.C.A. 105, when Congress authorized the proceedings in a criminal case to be reviewed upon a writ of...