Romano v. United States
| Citation | 9 F.2d 522 |
| Decision Date | 20 November 1925 |
| Docket Number | No. 77.,77. |
| Parties | ROMANO et al. v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Wallace E. J. Collins, of Jamaica, N. Y., and Morris Kamber, of Brooklyn, N. Y. (Otho S. Bowling and Vine H. Smith, both of New York City, of counsel), for plaintiffs in error.
Ralph C. Greene, U. S. Atty., and William A. De Groot, Asst. U. S. Atty., both of Brooklyn, N. Y.
Before HOUGH, MANTON, and HAND, Circuit Judges.
There are two counts to the indictment now said to charge the defendants below with the crime of violating the Tariff Act of 1922, § 593 (Comp. St. Ann. Supp. 1923, §§ 5841h12, 5841h13). The first count charges that between December 1, 1924, and January 1, 1925, "in the waters of Long Island Sound, off Huntington and within Huntington Harbor, Suffolk county, Long Island, state and Eastern district of New York, * * * did unlawfully, fraudulently and knowingly import and bring into the United States * * * upwards of 8,000 cases of whisky and champagne, the same being intoxicating liquors, * * * without first obtaining a permit from the Commissioner of Internal Revenue so to do, in violation of the Act of Congress of October 28, 1919, known as the National Prohibition Act Comp. St. Ann. Supp. 1923, § 10138¼ et seq.. * * *"
The second count charges that during the same period and at the same place the defendants below "did unlawfully, fraudulently and knowingly conceal merchandise after the same had been brought into the United States contrary to law and to the provisions of * * * the National Prohibition Act," and in that "during the times aforesaid there was imported and brought into the United States * * * upwards of 8,000 cases of intoxicating liquors, * * * and thereafter, at the times and places before set forth, the said defendants did conceal aboard * * * the auxiliary schooner, known as `Arco Felice II,' the said intoxicating liquors, * * * knowing the same to have been imported and brought into the United States, contrary to law as aforesaid."
A motion was made to dismiss the indictment at the opening of the trial, which was denied, and upon request of counsel for the defendants below the government's counsel announced that the defendants below were indicted under the Tariff Act, § 593 (b). They were convicted on the first count of the indictment and acquitted on the second.
The evidence established that the Arco Felice II was anchored at Huntington Harbor on the 31st of December, 1924. She was a four-masted schooner, about 250 feet long and of Italian registry. The government patrol boat drew near, and members of the United States Coast Guard went aboard the schooner. One of the men engaged the captain in conversation and asked for the ship's papers, which were produced, and they purported to be clearance papers from Honduras to Havana in ballast, dated December 22, 1924. A search of the vessel was made, and some loose corks and broken bottles were found. Thereupon the captain was asked where the corks came from, and he said "they were left there by the stevedores in Havana." Whereupon the captain was asked by the agent, "I thought you weren't in Havana?" to which the captain "shrugged his shoulders." A search warrant was procured, and examination of the vessel made, and there were found, in one of the rooms, three cases of liquor nailed up in a locker. In the crew's quarters, several partly filled bottles were found. The schooner was then towed to anchorage off Bedlow's Island. On January 2d further search was made, and there was found in a chest in one of the rooms other papers which purported to be clearance papers from Havana to St. Pierre, which were dated December 7, 1924. On this manifest it was stated that in the cargo there were 8,215 cases of liquor. A log book was found, and there were entries of records showing that on December 11th the vessel was sailing north along the coast of the United...
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