United States v. Harrison, No. 7498.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBIGGS, CLARK, and JONES, Circuit
Citation121 F.2d 930
PartiesUNITED STATES v. HARRISON.
Docket NumberNo. 7498.
Decision Date24 June 1941

121 F.2d 930 (1941)

UNITED STATES
v.
HARRISON.

No. 7498.

Circuit Court of Appeals, Third Circuit.

June 24, 1941.


121 F.2d 931

Nathan H. Brodsky, of Newark, N. J., for appellant.

Irwin L. Langbein, of Washington, D. C. (William F. Smith, U. S. Atty., of Newark, N. J., on the brief), for appellee.

Before BIGGS, CLARK, and JONES, Circuit Judges.

121 F.2d 932

CLARK, Circuit Judge.

The appellant, a dealer in sugar in New York City, was convicted of conspiracy to defraud the revenue through the operation of an unregistered and so untaxed still.1 The facts are not in dispute and may be summarized in this fashion. A still located on a farm in Atlantic County, New Jersey, was raided on October 26, 1937. In and around it were found many empty sugar bags and five-gallon cans. On October 23, 1937 the defendant Harrison had filled his truck with 125 bags of sugar and 200 empty five-gallon cans. He ordered his driver, one Ferdinand DeRosa, a co-conspirator who plead guilty, to take the truck to the Villa Roma Hotel in Atlantic City. He told the latter that there he would meet a man who would direct him to the spot where the truck would be unloaded. The load was consigned to the Boulevard Storage Warehouse Company in Atlantic City and a bill of lading2 to that effect was furnished to the driver. He was instructed to show the bill if he was stopped along the road. At the Hotel in Atlantic City the driver met the guide, one Rizzo, another co-conspirator who plead guilty. At the latter's command, he parked his truck at a gasoline station overnight. The next morning he was told to move the truck to a parking lot 3 or 4 blocks away and after doing so reported fully to the defendant Harrison. At midnight that night DeRosa and Rizzo departed on the truck in the general direction of what afterwards proved to be the still site. Ten or fifteen miles from Atlantic City, a Ford or Chevrolet "tail" car joined the convoy. Twenty miles from Atlantic City the driver of this car warned the guide Rizzo that they were being followed. The truck was thereupon turned around and driven back to Atlantic City. It was parked at 4 o'clock in the morning in a vacant lot near the Boulevard Warehouse. At 9 o'clock DeRosa left his bed at the Hotel and went back to pick up his truck. It was gone. He immediately telephoned the appellant Harrison and was told to return to New York. The next day the latter informed him that the truck had been seized by the Federal agents and that he, DeRosa, was to be questioned by the agents. He was told to maintain to them that he was to take the load to the Boulevard Warehouse in Atlantic City. Thereafter he left the defendant's employ and saw him only once again when arrangements were made for him to be taken by the defendant to the trial in Camden. The sale of the sugar was unreported despite the requirements of the regulations of the Bureau of Internal Revenue.3

The principal ground of his appeal is a claim for the benefit of a recent decision of the United States Supreme Court.4 He contends that it compels a direction in his favor. He seeks the advantage of certain language5 in the opinion of the Circuit Court of Appeals for the Second Circuit in the same case. That language was, in fact, clarified by a later decision of the same court.6 Even if it had not been so explained, we need only give heed to the highest court. Mr. Justice Stone phrases the decision in the last few lines of its opinion. He says: "* * * one who without more furnishes supplies to an illicit distiller is not guilty of conspiracy even though his sale may have furthered the object of a conspiracy to which the distiller was a party but of which the supplier had no knowledge. On this record we have no occasion to decide any other question." United States v. Falcone, 311 U.S. 205, 210, 211, 61 S.Ct. 204, 207, 85 L.Ed. 128 (italics ours).

This is at most a declaration that the Supreme Court sides with the numerical minority on a question much agitated in the United States Courts during the prohibition era.7 That question is the legal position

121 F.2d 933
vis a vis a conspiracy of a seller who knows that the goods he supplies are destined for an illegal use; or in other words, of a "wise" owner of innocent goods which contribute to the operation of an illegal distillery. We can start with the assumption that an intention to become a party to an illegal enterprise must be predicated on some affirmative action. That is the consensus of both the minority and majority views.8 The sale of goods surely constitutes affirmative action. The problem has arisen in the civil as distinguished from the criminal law. There we find the earlier cases holding that no principle of law compels a seller to take cognizance of the morals of his customers.9 Later the civil judges displayed a tendency opposite to that of their brethren on the criminal side. They stiffened the rule and made participation turn upon the magnitude of the buyer's wrongful purpose and so upon the nature of the crime.10 It may be that the same compromise will ultimately be the rule of the Supreme Court. A writer in the Iowa Law Review has clearly set forth the conflicting considerations: "A choice between these two doctrines depends upon an evaluation of how each best protects the social, individual, and commercial interests involved. On the one hand, freedom of enterprise would be curbed if sellers were forced to select their purchasers with care in order to prevent becoming involved in their plans and conduct. Also, sellers should be protected from prosecutors who seek to prosecute as co-conspirators all those who have been associated in any degree whatever with the main offenders. On the other hand, perhaps the seller should be regarded as a co-conspirator, since his association with the conspiracy actually goes beyond a sympathetic attitude or acquiescence; his contribution is physical and essential to their success. It would seem that the social interest invaded by such active assistance should be protected. Furthermore, it will be difficult to...

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16 practice notes
  • American Tobacco Co. v. United States, No. 9137-9139.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 26, 1945
    ...separately or together, by common or different means, but always leading to the same unlawful result. United States v. Harrison, 3 Cir., 121 F.2d 930; Allen v. United States, 7 Cir., 4 F.2d 688. Often, if not generally, direct proof of a criminal conspiracy is not available, and the common ......
  • United States v. Lutwak, No. 10326-10328.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • April 16, 1952
    ...316 U.S. 265, 275, 62 S.Ct. 1070, 86 L.Ed. 1461; United States v. Mack, 2 Cir., 112 F.2d 290, 292-293; United States v. Harrison, 3 Cir., 121 F.2d 930, 934; Allen v. United States, 7 Cir., 4 F.2d 688, However, before the jury could properly conclude that the scheme became an illegal conspir......
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • February 6, 1958
    ...3 Cir., 1952, 197 F.2d 26, at pages 28, 29; United States v. Perlstein, supra, 126 F.2d 789; United States v. Harrison, 3 Cir., 1941, 121 F.2d 930, at page 933; Lefco v. United States, 3 Cir., 1934, 74 F.2d 66, at page 68; Poliafico v. United States, 6 Cir., 1956, 237 F.2d 97, at pages 103,......
  • United States v. Kemmel, Crim. No. 12808.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 5, 1958
    ...145 F.Supp. 323, at page 330. An indictment may include the known and the unknown. United States v. Harrison, 3 Cir., 1941, 121 F.2d 930, at page 934; Pomerantz v. United States, 3 Cir., 1931, 51 F.2d 911, 913; United States v. Hamilton, C.C.S. D.Ohio, 26 Fed.Cas.No. 15,288, p. 90; United S......
  • Request a trial to view additional results
16 cases
  • American Tobacco Co. v. United States, No. 9137-9139.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 26, 1945
    ...separately or together, by common or different means, but always leading to the same unlawful result. United States v. Harrison, 3 Cir., 121 F.2d 930; Allen v. United States, 7 Cir., 4 F.2d 688. Often, if not generally, direct proof of a criminal conspiracy is not available, and the common ......
  • United States v. Lutwak, No. 10326-10328.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • April 16, 1952
    ...316 U.S. 265, 275, 62 S.Ct. 1070, 86 L.Ed. 1461; United States v. Mack, 2 Cir., 112 F.2d 290, 292-293; United States v. Harrison, 3 Cir., 121 F.2d 930, 934; Allen v. United States, 7 Cir., 4 F.2d 688, However, before the jury could properly conclude that the scheme became an illegal conspir......
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • February 6, 1958
    ...3 Cir., 1952, 197 F.2d 26, at pages 28, 29; United States v. Perlstein, supra, 126 F.2d 789; United States v. Harrison, 3 Cir., 1941, 121 F.2d 930, at page 933; Lefco v. United States, 3 Cir., 1934, 74 F.2d 66, at page 68; Poliafico v. United States, 6 Cir., 1956, 237 F.2d 97, at pages 103,......
  • United States v. Kemmel, Crim. No. 12808.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 5, 1958
    ...145 F.Supp. 323, at page 330. An indictment may include the known and the unknown. United States v. Harrison, 3 Cir., 1941, 121 F.2d 930, at page 934; Pomerantz v. United States, 3 Cir., 1931, 51 F.2d 911, 913; United States v. Hamilton, C.C.S. D.Ohio, 26 Fed.Cas.No. 15,288, p. 90; United S......
  • Request a trial to view additional results

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