Pomerantz v. United States, 4549.

• Decision Date: 21 August 1931
• Docket Number: No. 4549.,4549.
• Parties: POMERANTZ v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

51 F.2d 911 (1931)

POMERANTZ v. UNITED STATES.^*

No. 4549.

Circuit Court of Appeals, Third Circuit.

August 21, 1931.

B. D. Oliensis, of Philadelphia, Pa., for appellant.

Paul Freeman, Asst. U. S. Atty., of Philadelphia, Pa., and Raymond S. Norris, Sp. Asst. to Atty. Gen.

Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

Pomerantz and others were convicted in the District Court for the Eastern District of Pennsylvania of conspiracy to violate the National Prohibition Act. The case is brought to this court on appeal by Pomerantz alone.

He and his codefendants were indicted on December 14, 1927, in the District of Delaware on the charge of conspiracy to violate the National Prohibition Act. On September 5, 1929, while the indictment was pending in Delaware, they were indicted for the same offense in the Eastern District of Pennsylvania. The defendants moved the court to quash the indictment then pending in the Pennsylvania district. The motion was denied. Thereupon the Attorney General elected to proceed in Pennsylvania and the defendants were accordingly brought to trial in that District. The indictment in Delaware was nolle prossed six days after the return of the indictment in Pennsylvania.

The appellant insists that the lower court was without power to entertain the indictment on which he was convicted, for the reason that at the time of the return of the indictment in Pennsylvania there was an indictment pending in the district of Delaware charging the same offense; that the "prior jurisdiction of the District Court for the District of Delaware was exclusive, and that as long as the indictment was pending there, no other federal court might take cognizance of the matter."

These contentions are answered by the Supreme Court in the case of Haas v. Henkel, 216 U. S. 462, 30 S. Ct. 249, 251, 54 L. Ed. 569, 17 Ann. Cas. 1112, wherein it was said:

"But, if indicted in two or more districts, there must be an election as to where the defendant shall be tried. Primarily, this is the right and duty of the Attorney General, or those acting by his authority. * * *

"But if the fact be that the offense charged in both sets of indictments is identical, and that the locus of the conspiracy is laid in one set as in one district and in the other as in a different district, it is still for the government to determine in which of the two districts it will bring the accused to trial, and of the commissioner to determine whether a prima facie case has been shown that the accused had probably committed an offense in the District of Columbia, which was indictable and triable there."

The appellant's second objection is that the evidence is legally insufficient to warrant a conviction.

The government contends that the appellant was a party to a conspiracy to manufacture potable alcohol at the plant of the Rayon Silk Company of America, at Chester, Pa.; that the government thwarted the conspirators' original plan to use specially denatured alcohol, which is comparatively easy to redistill, and forced them to use completely denatured alcohol; that they devised a system to cover up their operations and the use of such large quantities of alcohol by organizing in Wilmington, Del., an alleged distributing company, called the "Delaware Distributing Company," to which they consigned truckloads of completely denatured alcohol; that, if a truck en route from Philadelphia, where the alcohol was obtained, to Chester, was seized and detained, it could easily be shown that the load was being carried to Wilmington, and the appellant was in charge of these "cover up" operations.

To support these charges, the government produced the following evidence: The appellant appeared at the office in Philadelphia of the manufacturer of stills and general equipment of denaturing plants on several occasions and participated in the negotiations for the installation of a denaturing plant for the Rayon Silk Company; that on August 2, 1926, he rented a portion of a building for the "Delaware Distributing Company" to store naval oils and alcohol, and used an alias in signing the lease, refusing to affix his own name; that nothing was ever stored in the space rented by the Delaware Distributing Company; that the appellant appeared at the place every few days to await telephone calls; that he told one Smalley, whose concern occupied the remaining portion of the building, that (in the words of Smalley) "the alcohol would be moving through, and if anytime it was stopped on the road, if they called up about that, to let it come on through and telephone him at Chester and he would come down and take care of it, but he said when he came he was not to be known as...