Simpson v. United States

Decision Date07 May 1923
Docket Number3916.
Citation289 F. 188
CourtU.S. Court of Appeals — Ninth Circuit

Rehearing Denied July 2, 1923.

Rudkin Circuit Judge, dissenting.

The plaintiff in error was convicted under an indictment which charged that he and De Liere and Brinket conspired to violate the National Prohibition Act (41 Stat. 305) by illegally obtaining possession of, dealing in, selling, and bringing into the territory of Alaska intoxicating liquors; that the purpose and object of the conspiracy was that the defendants should leave the port of Ketchikan, Alaska, bound for foreign waters on licensed American gas boats of at least 10 tons burden, without clearing from the United States customs, and without having a regularly indorsed master on board as provided by law, and proceed in said gas boats to foreign waters, securing a cargo of intoxicating liquors, and return to ports in the territory of Alaska with such cargo of intoxicating liquors, without entering at the United States customs, as provided by law, such intoxicating liquors tobe possessed, sold, and dealt in as aforesaid in violation of the National Prohibition Act. It was shown in evidence that on the night of November 14, 1921, the plaintiff in error with De Liere and Brinket, sailed on the Sylph, an American gas power boat, documented in the customs house at Ketchikan starting from an isolated gravel dock in Ketchikan and bound for British Columbia. Alex Runge, who was the duly indorsed master of the Sylph, was not on board, On November 15, 1921 the Sylph was met in British Columbia waters by the Canadian boat, Rosina B., and thereupon a cargo of liquor was transferred by Simpson, De Liere, and Brinket, and the crew of the Rosina B., to the Sylph for transportation to Alaska. Later, while making for the American boundary, the Sylph was overhauled by the Canadian coast guard ship, Thiepval. The Sylph endeavored to escape, but after a chase and after seven shots had been fired from the Thiepval's three-pounder Hotchkiss gun, the Sylph hove to and was taken into possession by the officers of the Thiepval. The plaintiff in error informed the captain of the Thiepval that De Liere was the captain of the Sylph. The Thiepval took De Liere aboard and took the Sylph in tow. On the following morning, De Liere attempted to release the Sylph by offering to deposit $800 with the collector of customs at Prince Rupert. The defendants were not detained by Canadian authorities and were permitted to return to Ketchikan. Before the trial, De Liere died and the indictment as to Brinket was dismissed.

John J. Sullivan, of Seattle, Wash., and A. H. Zeigler, of Ketchikan, Alaska, for plaintiff in error.

A. G Shoup, U.S. Atty., of Ketchikan, Alaska, and L. O. Gore, Asst. U.S. Atty., of Juneau, Alaska.

Before GILBERT and RUDKIN, Circuit Judges, and WOLVERTON, District judge.

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

We find no merit in the contention that the indictment was insufficient. It advised the defendants with reasonable certainty of the crime with which they were charged, Williamson v. United States, 207 U.S. 425, 28 Sup.Ct. 163, 52 L.Ed. 278. Its meaning is plain, a person of ordinary intelligence could not be misled as to the nature of the charge, and the averments are sufficient to enable the defendant to prepare his defense and, in the event of acquittal, to plead the judgment in bar of a second prosecution for the same offense. Burton v. United States, 202 U.S. 344, 26 Sup.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 392; 5 R.C.L. 1080.

The contention principally relied upon is that it was error to refuse to direct the jury to disregard any statement or admissions made by De Liere to the Canadian officers after the chase and capture of the Sylph, for the reason that the plaintiff in error could not be affected by any such admissions made after the conspiracy had ended. The court, in instructing the jury, charged them that such statements, if made after the conspiracy had been abandoned, were not admissible and should not be considered by them, but charged them that, if they found that such statements were made while the design or purpose of the conspiracy was being carried out, they might be taken into consideration in determining the scope, design, and purpose of the conspiracy, and the defendant's connection therewith. Evidence of the statements so made by De Liere was admitted without the interposition of the objection that is now urged against its admissibility. The evidence so admitted was that, on the morning following the capture of the vessel, De Liere stated to the Canadian collector of customs that he had been hired for $150 by the plaintiff in error to make the trip and to bring the liquor over, and that the hiring had taken place in Ketchikan; also that De Liere told the captain of the Thiepval that the plaintiff in error was financing the trip, and that the liquor all belonged to him, and that the plaintiff in error had promised to give him (De Liere) $150 to make the trip; and that De Liere further said that he was going to make an effort to get the boat released, that he was going to have a deposit of $800 put up, and that the $800 was coming from the plaintiff in error.

There can be no question of the general rule that, after the abandonment of a conspiracy, the acts or declarations of a conspirator are not admissible against his coconspirators. 'However there is a distinction between an abandonment of a conspiracy and the abandonment of the object thereof, and acts or declarations of coconspirators are admissible where at the time they were done or made, although the object had been abandoned, the conspiracy continued for the purpose of avoiding detection or exposure.' 16 C.J. 663. The contention that the declarations here in question were inadmissible is sustainable only on the theory that the evidence on the trial was such that it became the duty of the court to declare as a matter of law that the conspiracy had been abandoned before the declarations were made. We think it very...

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