United States v. Haim

• Decision Date: 08 July 1963
• Parties: UNITED STATES of America v. Charles HAIM et al., Defendants.
• Court: U.S. District Court — Southern District of New York

218 F. Supp. 922

UNITED STATES of America v. Charles HAIM et al., Defendants.

United States District Court S. D. New York.

July 8, 1963.

COPYRIGHT MATERIAL OMITTED

Robert Morgenthau, U. S. Atty., New York City (Daniel P. Hollnan, Asst. U. S. Atty., of counsel), for plaintiff.

Garey & Garey, New York City, John D. Roeder, New York City, of counsel, for defendants Haim and Goddards Ltd.

Thomas H. Casey, New York City, for defendant Scheer.

EDELSTEIN, District Judge.

The Government has filed an eighty-five count indictment which alleges that Charles Haim, Sidney Haim, Gladys Scheer, and a corporate defendant, Goddard's Ltd., together with other defendants conspired to violate several federal criminal statutes by importing Dutch whiskey into the United States under the guise that the Dutch whiskey was "Scotch" whiskey.

These named defendants have now moved to dismiss the indictment, urging five separate grounds of attack.¹ Some of the grounds for objection involve the relationship and alleged duplication of the criminal charges and a thorough review of the Government's allegations is necessary in order to comprehend clearly the precise nature of the defendant's objections.

The first Count charges that the movants, together with nine other co-conspirators, violated the general conspiracy statute, 18 U.S.C. § 371,² by conspiring to violate four different statutory sections, i. e., 18 U.S.C. §§ 542, 1001, 49 U.S.C. § 121 and 26 U.S.C. § 5683. Section 1001, referred to as the false statements or entries section, in general, makes it a crime to wilfully or knowingly make a false writing or document in any matter within the jurisdiction of any government department or agency;³ § 542 punishes the introduction of imported merchandise into the United States by means of any false statements or writings or declarations without reasonable cause to believe the truth of such statement.⁴ Section 121 of Title 49 makes it a crime to knowingly or with intent to defraud falsely make or alter a bill of lading purporting to represent goods received in foreign commerce. 26 U.S.C. § 5683, as amended, 26 U.S.C.A. § 5683 (Supp.1963) is somewhat more specific as it interdicts the transportation or removal of liquors under improper names or brands.

The Government alleges that the movants conspired with foreign nationals who distilled the whiskey in Holland and then shipped it from Rotterdam, Holland, to the United States in bottles, casks, and barrels, falsely labeled as legitimate Scotch distilled whiskey. In order to carry out the scheme the Government alleges that the conspirators prepared false bills of lading showing the origin of the shipments to be Glasgow, Scotland. Additionally, it is charged that the Haims and Gladys Scheer, the Haims' secretary, prepared false official British Customs documents known as "Certificates in Respect of Spirits Exported to the United States of America," which they filed with the United States Collector of Customs in various ports of entry in the United States. The culmination of this illicit project to traffic in Dutch "Scotch" was the sale of spurious Scotch whiskey to various purchasers throughout the United States.

Counts two through eighty-four of the indictment are substantive counts. These accuse the Haims, Gladys Scheer, and two Panamanian corporations with which the Haims are connected, with knowingly making false statements and representations in each of eighty-three official British Customs documents filed with United States Customs officials in violation of 18 U.S.C. §§ 1001 and 1002. Count eighty-five of the indictment charges defendant Gladys Scheer with committing perjury before a Grand Jury in the Southern District of New York on February 8, 1962. See 18 U.S.C. § 1621.

Defendants Charles Haim, Sidney Haim, and Goddard's Ltd. joined by the defendant Gladys Scheer, have moved to dismiss the indictment on several grounds. First, they move to dismiss Counts one through eighty-four on the ground that their inclusion in the indictment violates the guarantee of the Sixth Amendment to the United States Constitution that defendants shall have the right of compulsory process. The defendants contend that the Government, by charging them with conspiring with alien defendants and co-conspirators who are not subject to the subpoena powers of the United States Courts, has effectively deprived them of their right to compel the attendance of witnesses who may be of assistance to the defendants in denying the allegations of the indictment. Second, these defendants move to dismiss the conspiracy count, Count one, on the ground that it charges a conspiracy to commit both a misdemeanor and a felony and consequently prejudices them inasmuch as they are unable to ascertain from the face of the indictment whether they will plead, or be tried, on a greater or lesser offense. Third, they move to dismiss Counts two through eighty-four on the ground that the language of each Count charges two separate and distinct crimes and thus each Count is duplicitous. See Fed.R.Crim.P. 8(b). Fourth, the movants seek to sever Count eighty-five from the indictment on the ground that it charges one of the other defendants, Gladys Scheer, with acts of perjury before the Grand Jury which are not directly connected with the crimes charged on the first eighty-four Counts of the indictment and are not part of the same series of acts or transactions. See Fed.R.Crim.P. 8(b).

The defendant Gladys Scheer, in addition to joining in the previous motions, moves on her own behalf to dismiss the indictment on the ground that she was forced to testify before the Grand Jury without "waiving immunity" and was not advised of her right to remain silent, and was not advised of her status as a potential defendant.

I. DENIAL OF COMPULSORY PROCESS

The defendants' initial motion is to dismiss Counts one through eighty-four on the ground that the indictment, as framed, has effectively denied and foreclosed the movants from exercising their right of compulsory process which is guaranteed by the Sixth Amendment.⁵ The indictment charges that in order to accomplish the scheme of illegal importation the movants conspired with several foreign corporations and aliens. The movants draw attention to the fact that these corporations, being Dutch and English companies, have their offices and corporate records in either England or the Netherlands, and that consequently, information vital to their defense is outside the jurisdiction of this court. The movants claim that the indictment has been constructed in such a manner as to foreclose the defendants from obtaining evidence from these European corporations and aliens, which evidence the defendants deem essential to negate the Government's case in chief.

Although this court is empowered to subpoena under specified conditions a United States citizen or resident to testify in proceedings here, the court has no power to compel the attendance of aliens when such are, at the time of the request, inhabitants of a foreign country. See 28 U.S.C. § 1783 (1952).⁶ Burgman v. United States, 88 U.S.App.D.C. 184, 188 F.2d 637 (1951), cert. denied, 342 U.S. 838, 72 S.Ct. 64, 96 L.Ed. 1347 (1951); Gillars v. United States, 87 U.S. App.D.C. 16, 182 F.2d 962, 978 (1950); United States v. Best, 76 F.Supp. 138 (D.Mass.1948), affirmed sub. nom. Best v. United States, 184 F.2d 131 (1st Cir., 1950). Cf. United States v. Thompson, #28073, 2d Cir., 1963, 319 F.2d 665.

In support of their position defendants contend that it may be necessary for them to show, for example, their relationship, or lack of it, with distillers and whiskey brokers in Scotland and England as well as with the Dutch defendants. The movants point out that the indictment renders them helpless to call potential witnesses who would have knowledge of the facts in dispute and that their defense is entirely dependent upon the fortuity that witnesses will voluntarily appear. Furthermore, the defendants assert that the same disability faces them with respect to foreign corporate records. Defendants conclude that they are at the mercy of the volition of witnesses who might — or might not — desire to help them, and consequently they are deprived of their right to compulsory process.

The parties have not cited any case — and this court's independent research has not revealed any — in which this novel contention was considered on a motion to dismiss the indictment. However, recently in United States v. Greco, 298 F.2d 247, 251 (2d Cir., 1962), cert. denied, 369 U.S. 820, 82 S.Ct. 831, 7 L.Ed.2d 785 (1962), the defendant raised the question at another stage of the proceedings when he sought to have his conviction reversed, inter alia, on the ground that he had been denied his constitutional right to compel foreign based witnesses to attend the trial. Greco was convicted of transporting and receiving stolen Canadian securities in interstate and foreign commerce, 18 U.S.C. §§ 2314 and 2315, and of conspiracy to commit those offenses. At no time either prior to or during the trial did the defendant state the names of witnesses, if any, that would have been called. Nor did he move to take the testimony of any witness in Canada. Greco argued that his constitutional rights were violated because the theft, which was the essential element of the crimes charged, occurred in Canada and that he did not have the absolute right to take the testimony of Canadian witnesses on this issue. To this contention the court responded by stating that "* * * the Sixth Amendment can give the right to compulsory process only where it is within the power of the federal government to provide it. Otherwise any defendant could forestall trial simply by specifying that a certain person living where he could not be forced to come to this country was required as a witness in his favor. The fact that appellant could not compel the attendance of * * * witnesses * * * did not deprive him of any...