United States v. Hecht

• Decision Date: 08 February 1926
• Docket Number: No. 199.,199.
• Citation: 11 F.2d 128
• Parties: UNITED STATES ex rel. BRODY v. HECHT, U. S. Marshal.
• Court: U.S. Court of Appeals — Second Circuit

11 F.2d 128 (1926)

UNITED STATES ex rel. BRODY v. HECHT, U. S. Marshal.

No. 199.

Circuit Court of Appeals, Second Circuit.

February 8, 1926.

Emory R. Buckner, U. S. Atty., of New York City (Thomas T. Cooke, Asst. U. S. Atty., of New York City, of counsel), for appellant.

Wahle, Gilbert & Black, of New York City (Chas. G. F. Wahle, of New York City, of counsel), for appellee.

Before ROGERS, HOUGH, and MACK, Circuit Judges.

ROGERS, Circuit Judge.

It appears that Hyman Brody, with one Harry Drew, were indicted by a federal grand jury in Kansas City, Missouri, sitting in the Western district of the state of Missouri. The indictment was filed on June 1, 1925. It charged that Hyman Brody and one Harry Drew were "then and there" within the jurisdiction of that court, and were then and there dealers in opium and its derivatives. It charged that they "then and there" unlawfully, willfully, knowingly, and feloniously violated in the particulars therein stated an Act of Congress of December 17, 1914 (Comp St. §§ 6287g-6287q), as amended February 24, 1919 (Comp. St. Ann. Supp. 1919, Comp. St. Ann. Supp. 1923, § 6287g), and under Act May 26, 1922 (Comp. St. Ann. Supp. 1923, §§ 8800-8801g).

The act involved is known as the Harrison or Anti-Narcotic Act. 38 Stat. p. 785, c. 1. The act requires every person who "deals in, dispenses, sells, distributes, or gives away opium or coca leaves or any compound, manufacture, salt, derivative, or preparation thereof," to register with the collector of internal revenue of the district, his name, place of business, and the place where such business is to be carried on; and at the time of registry he is required to pay and on or before the 1st day of the month specified annually thereafter to the collector a special tax at a specified rate per annum; and it is made unlawful for any one required to register under the terms of the act to deal in any of the aforesaid drugs without having registered and paid the tax as provided in the act.

It is also declared to be unlawful to sell, barter, exchange, or give away any of the aforesaid drugs, except in the manner and under the conditions specified in the act. The constitutionality of the statute has been sustained. United States v. Brown (D. C.) 224 F. 135; U. S. v. Woods (D. C.) 224 F. 278; United States v. Charter (D. C.) 227 F. 331; United States v. Wong Sing, 260 U. S. 18, 21, 43 S. Ct. 7, 67 L. Ed. 105; United States v. Doremus, 249 U. S. 86, 39 S. Ct. 214, 63 L. Ed. 493. And see Jin Fucy Moy v. United States, 254 U. S. 189, 41 S. Ct. 98, 65 L. Ed. 214.

On June 5, 1925, a narcotic agent in charge of the office at Kansas City, Missouri, filed a complaint with a United States commissioner in the Southern district of New York, in which he charged Hyman Brody with having unlawfully, willfully and knowingly violated the Harrison Act. The source of his information was a certified copy of a warrant issued by the United States commissioner of the district of Missouri, and it was further alleged that Brody was a fugitive from justice within the Southern district of New York, and he asked for a warrant of arrest and removal to the district of Missouri, there to be dealt with according to law.

Thereupon Brody was taken into custody, brought before the commissioner, and hearings were had commencing on June 11, 1925. At this hearing the government offered in evidence the certified copy of the indictment, and then proceeded to call four witnesses, two being narcotic agents of the government, the United States attorney for the district of Missouri, and one Max Bernstein, who had acted as a "stool pigeon" for the government, and was named in the indictment as the person to whom Brody had made two unlawful sales of narcotics in Kansas City, Missouri.

Brody himself did not testify, and no witnesses were sworn on his behalf, and the case is to be disposed of on the indictment and the testimony introduced by the government.

Before proceeding to the consideration of their testimony, it is important to set forth the indictment, which is the ground upon which these proceedings rest.

The first count charged that Hyman Brody on May 21, 1925, at Kansas City, Missouri, was a dealer in opium and its derivatives, and as such, being required to register as such dealer under the laws of the United States, then and there unlawfully, willfully, knowingly, and in violation of the Act of Congress and the amendments thereto, possessed for sale and distribution 10 ounces of morphine without having registered or paid the tax.

The second count charged that on May 21, 1925, at Kansas City, Missouri, Hyman Brody feloniously sold to Max Bernstein 10 ounces of morphine.

The third count charged that on May 21, 1925, Brody purchased at Kansas City, Missouri, from a party or parties to the grand jurors unknown, 10 ounces of morphine, the same not being in or from the original stamped package.

The fourth count charged that on June 21, 1925, at Kansas City, Missouri, Brody possessed "for sale and distribution" 40 ounces of morphine, contrary to the provisions of the statute.

The fifth count charged that on June 1, 1925, at Kansas City, Brody feloniously sold to Max Bernstein 40 ounces of morphine.

The sixth count charged that on June 1, 1925, Brody feloniously purchased at Kansas City, Missouri, from a party or parties unknown to the grand jurors, 40 ounces of morphine.

The seventh and last count charged that Brody on May 30, 1925, feloniously facilitated the transportation of 40 ounces of morphine from New York City to Kansas City, Missouri, by consigning and shipping it to Max Bernstein at Kansas City, after the same had been unlawfully imported into the United States, the said Brody then and there well knowing that it had been imported contrary to law.

This brings us to a consideration of the testimony adduced at the hearing.

One of the narcotic agents from Kansas City, Missouri, testified that he had not spoken to Brody, or seen him, until May 29, 1925, when he saw him in New York City getting into his automobile. The first conversation was on June 4, 1925, and in that conversation the man told him he was Hyman Brody. That was the extent of his testimony, and it was evidently for the purpose of establishing identity.

The second narcotic agent was also from Kansas City, Missouri. He testified to having seen Brody in New York City on May 29 and on June 4. He had never spoken to Brody until June 4, when he called upon him in his office in New York. He detailed a long conversation he had with him, in which the witness stated that he was a friend of Max Bernstein (with whom Brody had dealt), and that he wanted to buy some morphine. They discussed how the matter could be best handled to avoid suspicion and detection. Then he testified as follows:

"He (Brody) said, `You just deal in morphine?' I said, `Yes.' Then he said, `I will say $22 a yard or feet, or anything, and you will know what I mean.' I said, `All right.' Then I said, `Supposing I want to get a small amount by express?' He said, `I don't deal in small amounts.' He said, `That ten ounces I sent Max, I done that as an accommodation.'

"Q. Did he say who Max was? A. Bernstein; we were talking about Bernstein. He said, `Max just called me up from Kansas, on the long distance, and he said to have ten ounces, and I shipped it to him by express as an accommodation.' I said, `All right, I am going home; when I get ready to buy some stuff, I will send you a wire.'"

Then the record shows that counsel for Brody called attention to the fact that the indictment contained no conspiracy count, but charged substantive crimes committed in Kansas City, and that the conversation testified to had no probative force in New York City. He said:

"You cannot send a man from here to Kansas City on an indictment which charges him with having committed grand larceny in Kansas City on the 21st of May, or the 30th of May, or on the 1st of June, perforce because of a conversation which is had on the 4th of June, in which he agrees to commit another burglary there some time in the future."

The United States attorney from the district of Missouri thereupon said:

"I think a portion of the conversation did relate to future things, but a very important part of it constituted admissions as to past occurrences, being the identical occurrences set out in the indictment. For instance, this defendant, Brody, in the course of his conversation with Mr. Koehn, referred to a 10-ounce shipment to Max Bernstein. Now, that is what the first count is based on, a 10-ounce shipment made to Kansas City, and the sale and delivery being in Kansas City, and of course fixing the jurisdiction there, and his reference to the price of $22 an ounce, which had been made to Max, refers to the 40-ounce shipment which the indictment sets forth was delivered in Kansas City. It has nothing to do with future occurrences, but the conversation which started out on future occurrences developed into these admissions by the defendant Brody, not that the government has to prove on this proceeding the details of these occurrences, but merely for the purpose of fastening identification on this man, to show there is no mistake that this is the Brody who is engaged in the narcotic business, and this is the Brody who is shipping in quantities to Max Bernstein, for the purpose of foreclosing beyond all question the point of mistaken identity."

This shows that the testimony as to the sale to Max Bernstein of 10 ounces of morphine charged in the second count, and the purchase by Brody of 10 ounces charged in the third count, and the 40 ounces referred to in the fourth count, the fifth, the sixth, and seventh counts, relate to the sale and possession of the morphine testified to in the testimony given by the narcotic agent above set forth, and that is now to be set forth in the testimony of Max Bernstein himself.

Bernstein testified in part as follows:

"Q. Did you ever...