United States v. Glass

• Decision Date: 19 April 1928
• Docket Number: No. 3729-3739.,3729-3739.
• Citation: 25 F.2d 941
• Parties: UNITED STATES ex rel. MAYER et al. v. GLASS, U. S. Marshal. UNITED STATES ex rel. McGOWAN et al. v. SAME. UNITED STATES ex rel. JORDAN v. SAME.
• Court: U.S. Court of Appeals — Third Circuit

25 F.2d 941 (1928)

UNITED STATES ex rel. MAYER et al. v. GLASS, U. S. Marshal.

UNITED STATES ex rel. McGOWAN et al. v. SAME.

UNITED STATES ex rel. JORDAN v. SAME.

Nos. 3729-3739.

Circuit Court of Appeals, Third Circuit.

April 19, 1928.

Knapp, O'Malley, Hill & Harris, Stanley M. Evans, John M. Gunster, C. P. O'Malley, Vandling D. Rose, Paul G. Collins, M. J. Martin, and Clarence Balentine, all of Scranton, Pa., and Abram Salsburg, of Wilkes-Barre, Pa., for appellants.

A. E. Bernsteen, U. S. Atty., and Wilfred J. Mahon, Asst. U. S. Atty., both of Cleveland, Ohio, for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

These eleven citizens of Pennsylvania were named with twelve citizens of other states as defendants in three inter-related indictments found in the District Court of the United States for the Eastern Division of the Northern District of Ohio charging conspiracies to violate the National Prohibition Act (27 USCA). In proceedings instituted by the government for their removal to the Ohio district for trial, they were held and committed by a United States Commissioner for the Middle District of Pennsylvania. Thereupon each defendant petitioned the District Court for the Middle District of Pennsylvania for a writ of habeas corpus and moved to quash the complaint and otherwise annul the action of the Commissioner. The government at the same time petitioned the court for warrants of removal. All matters thus raised were heard together and the court dismissed the petitions for writs of habeas corpus and the motions to quash the complaints and entered orders for the commitment of all defendants to the United States Marshal for the Pennsylvania district and their removal to the Ohio district for trial. These appeals followed. Although separately argued, they were, because of the relation of one to another, heard at the same time and will be disposed of in one opinion.

The government supported its petitions before the Commissioner and before the court solely by the indictments as evidence of probable cause. The defendants attacked the complaints on which the arrests were made and attacked the indictments also; and, except in the cases against Dooley, Purcell, McGowan, McHugh and Bossert, they relied wholly on the averments in their petitions for writs of habeas corpus to overcome the indictments as prima facie evidence of probable cause. On these appeals the defendants raise twenty-three separate and distinct questions, discuss the law of removal in every aspect and ask for its application to the meager facts of these cases.

The law of removal was correctly stated by the learned trial judge and was recently reviewed by this court in United States v. Mathues, 19 F.(2d) 22, and Swan v. United States, 23 F.(2d) 148, with extended citation of supporting authorities. The cases at bar do not call for a re-statement of the law or a discussion of the law in the many phases which the industry of counsel have brought into view for, after all, the cases are rather simple. We have, however, carefully considered all matters presented and find ourselves constrained to decide adversely to the appellants all questions save one and that is the ever present and crucial question of probable cause. In deciding that question we have been guided by and shall pursue the discussion solely on the law which we have before stated as follows:

The indictment is introduced in proceedings under section 1014, R. S. (18 USCA § 591), "not to establish the appellant's guilt, but only as evidence to show that there was cause to believe his guilt probable enough to justify his removal for trial." Swan v. United States, supra.

"The indictment is itself evidence that there was probable cause for finding it. Of this, however, the indictment is not conclusive, Tinsley v. Treat, 205 U. S. 20, 32, 27 S. Ct. 430, 51 L. Ed. 689; its evidential effect is only prima facie. Hence the accused may attack it as not charging a crime and therefore as not showing probable cause." United States v. Mathues, supra.

Our one inquiry, therefore, is whether the indictments charge a crime against each defendant and in that way show probable cause justifying his removal.

These cases illustrate the preference of some government officials, charged with the enforcement of the National Prohibition Act, to enforce that law through internal revenue statutes, customs laws, and the general law of conspiracy found in the Criminal Code, rather than through the National Prohibition Law itself, thus at times converting misdemeanors into felonies and hazarding the greater certainty of convictions under the prohibition law in order to obtain heavier penalties under other laws. Against this practice the federal judiciary has formally expressed itself. These cases also illustrate the opposite positions which parties in removal cases sometimes take, where the government's law representative demands removal to a distant district of all defendants named in an indictment for conspiracy no matter how shadowy their connection with the offense may be and how unlikely their conviction, and where the defendants, shutting their eyes to their sole right of trial in the district "wherein the crime shall have been committed" and without any right of trial in the district of their residence, whether there or elsewhere at the time of the distant crime, In re Palliser, 136 U. S. 265, 267, 10 S. Ct. 1034, 34 L. Ed. 514, regard their home state as a sanctuary with right of trial by a jury of their fellow townsmen. Between these extremes, and wholly without regard to the views of others, it is the solemn duty of the court to find the true line and coldly to decide the law as it is written and to apply it impartially in a given case.

Nos. 3730 to 3736.

Except in the Purcell and Dooley Cases we accept as true all facts alleged in the indictments. Unverified averments in the petitions for writs of habeas corpus do not controvert them. The question as to each defendant is — does the indictment on the facts as alleged charge a crime against him? If it does, probable cause is shown and he must be removed. If it does not, probable cause is lacking and the warrant of removal cannot be sustained.

The first indictment, though lengthy, is clearly drafted. Naming only the parties here concerned, it states by way of inducement that the Anthracite Beer Company at the city of Scranton, Pennsylvania, manufactured beer of an unlawful alcoholic content; that Mayer, its brewmaster, was in charge of manufacturing unlawful beer; that Purcell was a yardmaster of the Delaware, Lackawanna & Western Railroad Company at Scranton and that Dooley was a yard conductor in the employ of the same company at the same place, and that they secretively put unlawful beer in transportation; that Loughran, Anderson, Lord and another were engaged in the business of buying and selling intoxicating liquor in carload lots; that Quinn was engaged in a similar business; that others were engaged in buying beer and distributing it in Cleveland, Ohio; that others were owners and drivers of trucks in Cleveland, engaged in making deliveries; that others were constables in a township in Ohio, affording protection; that another owned a siding in Cleveland and supplied it as a facility for receiving beer; and that still others were in the business of buying intoxicating liquor and selling it in Cleveland. All this without more might be the charging part of the indictment alleging substantive offenses against the National Prohibition Act. It is however only inducement. Next comes the charging part purporting to show a conspiracy between the nineteen defendants. Its critical words are as follows:

"And the grand jurors aforesaid * * * do further present and find that the said nineteen named persons continuously throughout said period of time beginning on or about the first day of April A. D. 1924, and ending on or about the first day of January A. D. 1927," at Cleveland, Scranton, Chicago, Buffalo, Pittsburgh, Baltimore, and at divers other places, "knowingly, willfully, unlawfully and feloniously did conspire, combine, confederate and agree together and with one another, and each with the other * * * to commit in the manner, by the means and to the extent hereinafter shown, certain offenses against the United States, to wit, to violate the National Prohibition Act, in that they would manufacture, possess, keep, barter, sell, transport, deliver and distribute intoxicating liquor, to wit, a certain malted and cereal beverage known as beer for beverage purposes which said beer would then and there contain more than one half of one per cent. of alcohol by volume," that is, "in the manner, by the means and to the extent" substantially as quoted from the inducing part of the indictment.

Clearly the indictment thus far recited would conform to the requirements of a criminal pleading for conspiracy at common law, but to comply with the statutory law of the United States in respect to such a pleading the draftsman had to plead at least one overt act. He pleaded forty-eight. Of these at least one is an overt act charged against each defendant. Having elected to aver overt acts so extensively, the government is bound by them in proceedings of this kind and also is bound by what they show and do not show. As they purport to be acts in furtherance of the conspiracy charged, the averments must make it clear that they grew out of or had some relation to the conspiracy. Applying this test to the seven defendants here concerned under the first indictment, it will be enough to say that the test is satisfied on a showing that the relation is established as to Mayer, Quinn, Loughran and Lord. Whether the test is met in respect to Dooley, Purcell and Anderson requires discussion.

The one overt act charged against Mary L. Anderson is in these words:

"Forty-Fifth. That the said defendant, William V. Loughran, on or...