Schouweiler v. United States

• Decision Date: 16 July 1928
• Docket Number: No. 5410.,5410.
• Citation: 27 F.2d 515
• Parties: SCHOUWEILER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

27 F.2d 515 (1928)

SCHOUWEILER v. UNITED STATES.

No. 5410.

Circuit Court of Appeals, Ninth Circuit.

July 16, 1928.

Samuel A. King and King & King, all of Salt Lake City, Utah, for plaintiff in error.

Samuel W. McNabb, U. S. Atty., and Donald Armstrong, Asst. U. S. Atty., both of Los Angeles, Cal.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

The appellant and six others were convicted upon an indictment charging a conspiracy to violate section 593 of the Tariff Act of 1922, defining smuggling and kindred offenses (42 Stat. 98219 USCA § 496). The indictment was returned August 31, 1927, and the period of the conspiracy is therein alleged to have been from May 1, 1926, up to that date. Its object, as averred, was to commit the offense of importing into the United States, near the city of San Diego, Cal., from some foreign country to the grand jurors unknown, with intent to defraud the revenues of the United States, 31 sacks, containing 12 quarts each, of contraband intoxicating liquor, without paying the taxes thereon or conforming with other requirements of the law. Seven overt acts are specified, two on June 4, one on June 5, two on June 23, one on July 1, and one during the period from July 20 to August 6, all in the year 1926.

The principal assignment challenges the sufficiency of the evidence to support the verdict. It was shown that, during the period covered by the indictment and for some time prior thereto, two "rum boats," the Clara French and the Marion Douglas, with large quantities of liquor on board, were lying about 60 miles off the coast from Los Angeles. The plan of the persons interested therein was from time to time, as there was opportunity, clandestinely to land in the United States portions of the liquor by means of smaller speed boats. One of these speed boats was the Jackie, owned by the defendant Dellan, with defendant Nicholles captain, and manned by the defendants Thompson, Fairbanks, and others. Nicholles, who was a witness for the government, testified that during the month of June, 1926, the Jackie brought in four loads of liquor; the first three being landed at the Venice Pleasure pier, and the last at San Diego. On this last trip, the Jackie, with 200 cases received from the Marion Douglas, was chased by a revenue cutter as she came into the harbor. Temporarily eluding the cutter, she was able to land 160 cases, and the other 40 were cast overboard. Of these 40 cases, divers from the cutter recovered 31, and these apparently constitute the liquor particularly referred to in the indictment. That there was a conspiracy, as alleged, the evidence leaves no doubt, and the question is of appellant's connection therewith. We therefore concern ourselves only with the evidence in so far as it bears upon that question.

Walker, the owner of and engineer on the Clara French, testified to his going, under engagement with one Detweiler, from Vancouver, where he resided, to the place where the Marion Douglas lay off the coast from Los Angeles. This was in March, 1926. When he reached the Marion Douglas there were on board several men, and he estimated she had a cargo of from 12,000 to 15,000 cases of liquor. He remained there until June, and received portions of the liquor from time to time for delivery to the speed boats. After the Clara French had been so operating for a considerable period, he, being advised so to do, sent a letter by a fish boat addressed to "Dr. Ross," at Los Angeles, and it turned out that "Dr. Ross" was Schouweiler. The letter was so worded that it would be meaningless to a stranger. After waiting a few days and receiving no answer, the witness went ashore for the purpose of seeing "Dr. Ross." He did not find him at an address in Los Angeles given to him by the captain of the Clara French, whereupon he went to San Diego to make inquiry, and there he got in touch with Schouweiler over the telephone, and told him where the Clara French was, that he had a load of liquor on board, and was short of supplies. By appointment he met Schouweiler soon thereafter, and in response to his request Schouweiler gave him $50 and took a list of supplies needed on the Clara French. This was in the presence of the defendant Thompson and others, and about June 4 Schouweiler, in the witness' presence, gave Thompson money, whereupon Thompson, accompanied by the witness, proceeded to various places for the purchase of the requisite supplies. During this visit the witness also conferred with Schouweiler, when he was with others of the defendants. When the witness started to return to the Clara French, he learned she had been seized by the Mexican government. He saw Schouweiler later, got more money from him, and was informed by him that he expected soon to have the Clara French free and the crew released. On one of these occasions...