United States v. Gerke, 7770

• Decision Date: 16 January 1942
• Docket Number: 7783.,No. 7770,7770
• Citation: United States v. Gerke, 125 F.2d 243 (3rd Cir. 1942)
• Parties: UNITED STATES v. GERKE et al. Appeal of GERKE et al. Appeal of ROBIN et al.
• Court: U.S. Court of Appeals — Third Circuit

125 F.2d 243 (1942)

UNITED STATES v. GERKE et al. Appeal of GERKE et al. Appeal of ROBIN et al.

Nos. 7770, 7783.

Circuit Court of Appeals, Third Circuit.

Argued December 1, 1941.

Decided January 16, 1942.

Writ of Certiorari Denied April 13, 1942.

Charles Handler, of Newark, N. J. for Daniel W. Robin and F. W. Watson.

Samuel I. Kessler, of Newark, N. J. (Kessler & Kessler, of Newark, N. J., on the brief), for Henry Gerke and others.

Charles A. Stanziale, Asst. U. S. Atty., of Trenton, N. J. (Charles M. Phillips, U. S. Atty., of Trenton, N. J. on the brief), for the United States.

Before BIGGS, MARIS, and GOODRICH, Circuit Judges.

Writ of Certiorari Denied April 13, 1942. See 62 S.Ct. 1033, 86 L.Ed. ___.

MARIS, Circuit Judge.

The defendants Henry Gerke, James T. Brown, Gerald R. Wade, Daniel W. Robin, F. W. Watson, Charles Larkey, James Holland and Joseph Turansky were found guilty of having conspired to import alcohol unlawfully into the United States in violation of section 37 of the Criminal Code, 18 U.S.C.A. § 88,¹ and all the defendants save Robin and Watson were found guilty of having unlawfully imported alcohol into the United States in violation of section 593(b) of the Tariff Act of 1930, 19 U.S.C.A. § 1593(b).² Each of the defendants has appealed upon the ground that there was insufficient evidence to sustain a judgment of conviction as to him and all the defendants take the position that the government has failed to prove a conspiracy.

On April 25, 1936, the United States Customs Authorities seized the tanker Charles D. Leffler, at a dock at Bayway, New Jersey, and found approximately 50,000 gallons of alcohol of foreign production on board and then being unloaded. No duty had been paid upon this alcohol. The jury found that each of the defendants had some share in a conspiracy to import this alcohol without the payment of duties upon it. The story of the Leffler is in essence the story of the alleged conspiracy. Originally the Leffler was used to transport gasoline and refined petroleum products. It had 14 tanks and a capacity of approximately 70,000 gallons. On October 1, 1935 Daniel W. Robin purchased the tanker for $5,000, giving a deposit of $500. On October 10, 1935 Robin, accompanied by Watson, made a deposit of $7,000 in cash in his bank account. The money was mostly in denominations of five and ten dollar bills, indiscriminately arranged. Among them was a $100 counterfeit bill. Robin told the cashier he received the money from a New York bank. In his direct testimony he stated that he brought the money from a box at his home. On the same day Robin withdrew $4,500 and $1,500 by check. The $4,500 check was drawn to the order of the Standard Shipping Company, in final payment for the vessel.

On October 8, 1935 the Chesapeake Marine Railway Company began extensive repairs on the vessel, including the installation of an additional tank of 7,000 gallons. Robin paid for the work with three checks, the third dated January 14, 1936. Robin and Watson (who used the name Thomas) made all the arrangements with the Chesapeake Marine Railway Company. The work on the vessel was completed November 14, 1935, at which time it left dry dock. James T. Brown, calling himself Andrews, actively supervised the work during the last few weeks, and Captain Charles Larkey was also present. On November 8, 1935 Charles Larkey took an oath as master of the vessel. On November 9, 1935 Robin signed a bill of sale for the Charles D. Leffler to the Economy Oil Transportation Corporation. That company had been incorporated on November 1, 1935 with Gerald R. Wade as president. Wade signed all necessary papers to complete the enrollment of the vessel.

Some time in November, 1935 the vessel Anna D. Anagagana left Yarmouth, Nova Scotia, proceeded to St. Pierre Miquelon, contacted a tramp steamer, took on about 2,000 cases of alcohol, proceeded to United States waters and at or near Hog Island Light met the Leffler and discharged its entire cargo. Because of high seas the two vessels smashed into each other. The port side of the Leffler was damaged. During this trip James T. Brown, who was on the Leffler, came aboard the Anna D., as pilot. In December 1935 the Leffler went into dry-dock at South Rondout, New York, for repairs to her port side. The work took a few days and the vessel left on December 8, 1935. Additional repairs were made at or about December 21, 1935 and April 21, 1936. On the latter date seven new tanks were installed. The work was billed to the Economy Oil Transportation Corporation. Some time between November, 1935 and the spring of 1936 the Leffler was icebound at Tarrytown. On its way to Tarrytown it stopped at 125th Street, New York City, and at that point Robin came on board to inquire of its engineer about parts for the vessel's pump. This was after its sale to the Economy Oil Transportation Corporation and after the vessel had been used to take the cargo of alcohol off the Anna D.

When the Leffler was seized and Captain Charles Larkey was arrested he stated that he had procured his cargo of alcohol from the steamship Hillfern about 100 miles off the United States coast. The evidence discloses that the Hillfern took on a cargo of 180,000 gallons of alcohol at Antwerp, Belgium. At the time of the loading Henry Gerke was on the quay in conversation with the agents for the distillery. The Hillfern left port March 30, 1936, ostensibly for Uruguay. Gerke returned from Europe April 8, 1936. A dock at Bayway, New Jersey, had been leased to a fictitious Morris Slavin trading as Criterion Oil Company on April 14, 1936. In fact Wade signed the lease using the name Morris Slavin. On April 21, 1936 the Leffler left dry dock and between that date and April 25th contacted the Hillfern at sea. On April 25th the Leffler was in the process of unloading alcohol upon the leased dock at Bayway, New Jersey. Charles Larkey and James Holland were arrested on the dock as they were returning to the vessel past midnight. Larkey admitted he was captain of the Leffler. The vessel's log contained entries in Larkey's handwriting from December 8, 1935 to April 25, 1936. At the time of the seizure personal papers belonging to Brown were found in the captain's quarters of the Leffler. Holland gave his name as Wentzel, and said he was the engineer. He took the job some time between December, 1935 and the spring of 1936. At the time of the seizure of the Leffler Joseph Turansky approached the customs men in the dark and called to them "Who are you fellows, coast guardsmen?" and when asked who he was said "I am the watchman, come on, let's go up to the office so we can straighten this matter out." The agent said "No, I am placing you under arrest, you are to come over to our patrol boat." Turansky attempted to escape but was placed under arrest. Turansky was not employed as a...