United States v. Jordan

• Decision Date: 17 October 1927
• Citation: 22 F.2d 702
• Parties: UNITED STATES v. JORDAN.
• Court: U.S. District Court — Western District of Pennsylvania

22 F.2d 702 (1927)

UNITED STATES v. JORDAN.

District Court, M. D. Pennsylvania.

October 17, 1927.

Andrew B. Dunsmore, U. S. Atty., of Wellsboro, Pa., A. A. Vosburg, Asst. U. S. Atty., of Scranton, Pa., and A. E. Bernsteen, U. S. Atty., and Miles E. Evans, Asst. U. S. Atty., both of Cleveland, Ohio.

Knapp, O'Malley, Hill & Harris, John M. Gunster, and Stanley M. Evans, all of Scranton, Pa., for defendant.

JOHNSON, District Judge.

The defendant, James A. Jordan, and Michael Newheile, residents of Lock Haven, Pa., were indicted by a grand jury in the Northern district of Ohio, Eastern division, for conspiring to violate the National Prohibition Act (27 USCA), commonly known as the "Volstead Act." The defendant was arrested and, after hearing before United States Commissioner James Peck, at Scranton, Pa., was held in bail on October 6, 1927, by the commissioner for trial in the Northern district of Ohio, Eastern division.

On October 6, 1927, Andrew B. Dunsmore, United States attorney for the Middle district of Pennsylvania, moved the court for an order, based upon proceedings before United States Commissioner Peck, directing the removal of the said defendant from the Middle district of Pennsylvania to the Northern district of Ohio, Eastern division. Whereupon the defendant, by his counsel, moved the court to quash the complaint made to the said commissioner, and to set aside the warrant issued thereon and the service of the warrant, assigning in support of the motion 56 reasons which may be considered under five heads:

First, the legality of the arrest; secondly, the jurisdiction of the court of the Northern district of Ohio, Eastern division; thirdly, the sufficiency of the indictment; fourthly, probable cause; and, fifthly, the venue or proper place for trial.

First, as to the legality of the arrest: The defendant contends that the complaint on which the warrant of arrest issued is void and insufficient to support and justify the issuance of the warrant of arrest in that it fails to set forth in substance the commission of an offense against the laws of the United States. The complaint sets forth, among other things:

That the defendant, "James A. Jordan, and Michael Newheile, in violation of section 37 of the United States Criminal Code, did, through a period of time extending from on or about the 1st day of April, A. D. 1924, to on or about the 1st day of January, A. D. 1927, continuously and throughout the said period, unlawfully, knowingly, willfully, and feloniously conspire, combine, confederate, and agree together and with one another, and each with the other and with one Frank A. Delehanty, to violate the National Prohibition Act and the Volstead Act. And they did, in furtherance of their conspiracy, manufacture, possess, keep, barter, sell, transport, deliver, and distribute intoxicating liquors, to wit, a certain malt and cereal beverage known as beer used for beverage purposes, which beer did then and there contain more than one-half of 1 per cent. of alcohol by volume fit for use for beverage purposes. A more detailed account of the conspiracy and overt acts committed by the above defendants in the furtherance of their conspiracy may be had from the certified copy of the indictments returned against the above defendants in the United States Court in the Northern District of Ohio, which certified copy of the indictment was filed with the aforesaid commissioner at the time of the issuance of this complaint. All of which acts of the defendants aforesaid were contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.

"And, further, that on March 25, 1927, a true bill of indictment was found and preferred against James A. Jordan and Michael Newheile by the grand jury of the United States District Court for the Northern District of Ohio for the said offenses as aforesaid. * * * And, further, that the foregoing information, except as to the fact of the said defendants aforesaid now being within this judicial district, is laid and made upon information and belief, the source of deponent's information and the grounds of his belief being a certified copy of the bill of indictment found and preferred against the defendants as aforesaid in the United States District Court for the Northern District of Ohio, which said certified copy as aforesaid is presented to and filed with the undersigned commissioner by the deponent at the time of the making of this complaint."

The indictment, which was attached to the complaint and made a part of it, sets out the charge of conspiracy against the defendant herein, James A. Jordan, and Michael Newheile by charging them with conspiring at Cleveland, in the county of Cuyahoga, state of Ohio, in the Eastern division of the Northern district of Ohio, and within the jurisdiction of the United States District Court of the Northern District of Ohio, Eastern Division of Ohio, and at Lock Haven, in the state of Pennsylvania, in the Middle district of Pennsylvania, and at Baltimore in the district of Maryland, and at divers other places to the grand jurors unknown, willfully, knowingly, unlawfully, and feloniously to violate the terms and provisions of the National Prohibition Act, commonly called the "Volstead Act," specifying the acts of violation of the said act contemplated by the alleged conspirators, and setting forth the overt act committed by this defendant, James A. Jordan, and Michael Newheile in pursuance of the conspiracy charged in the indictment. The indictment must be considered as part of the complaint in this case in determining the sufficiency of the complaint. It therefore follows that the complaint sets forth the offense with sufficient certainty to afford authority to the commissioner to issue the warrant. Beavers v. Henkel, 194 U. S. 73, 24 S. Ct. 605, 48 L. Ed. 882.

In Rice v. Ames, 180 U. S. 371, 21 S. Ct. 406, 45 L. Ed. 577, a case of extradition to a foreign country in which the complaint was made upon information and belief, it was said, on page 375 (21 S. Ct. 408): "If the officer of the foreign government has no personal knowledge of the facts, he may with entire propriety make the complaint upon information and belief, stating the sources of his information and the grounds of his belief, and annexing to the complaint a properly certified copy of any indictment or equivalent proceeding, which may have been found in the foreign country, or a copy of the depositions of witnesses having actual knowledge of the facts, taken under the treaty and act of Congress. This will afford ample authority to the commissioner for issuing the warrant."

Secondly, as to the jurisdiction of the United States District Court for the Northern District of Ohio, Eastern Division: The indictment charges conspiracy between the defendant, James A. Jordan, and Michael Newheile, residing at Lock Haven, Pa., and divers other persons to the grand jurors unknown, at Cleveland, in the Northern district of Ohio, Eastern division, and the commission of overt acts in pursuance of said conspiracy, one of the overt acts alleged being the shipment of 100 barrels of beer from Lock Haven, Pa., to Cleveland, Ohio. Section 42 of the Judicial Code (28 USCA § 103) covers this question: "When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein."

This indictment charges conspiracy at Cleveland, in the Northern district of Ohio, Eastern division, in the Middle district of Pennsylvania, in the district of Maryland, and overt acts begun in Lock Haven, in the Middle district of Pennsylvania, and completed in Cleveland, in the Northern district of Ohio, Eastern division. The United States District Court of the Northern District of Ohio, Eastern Division, therefore, has jurisdiction to try this defendant, James A. Jordan, on the charge contained in the indictment.

Thirdly, as to the sufficiency of the indictment: This indictment clearly charges the conspiracy to violate the National Prohibition Act, stating the manner in which the act was to be violated by the alleged conspirators, and stating the overt acts in pursuance of the conspiracy. The indictment clearly charges an offense against the laws of the United States.

In United States v. Benjamin Fogel, John M. Sell, et al., 22 F.(2d) 823, District Judge Sanborn, in discussing the sufficiency of the indictment said: "In the present case, it is claimed that the indictment is too indefinite to advise the defendant of the crime of which he was charged. The conspiracy is alleged to have been formed in various places, some known and some unknown, throughout the United States. The time is stated to be between the 1st day of April, 1923, and the 16th day of February, 1926. Overt acts are alleged to have been committed at various places throughout the United States, including Cleveland, Ohio, which is in the Eastern division of the Northern district of Ohio. The acts which the conspirators were to do in violation of the National Prohibition Act are set out with particularity. They were to manufacture and sell alcohol in various places throughout the United States for beverage purposes. It may be that the defendant Sell is entitled to a bill of particulars, but that is a matter for the trial court to determine, and not this court. I am of the opinion, therefore, that the indictment does states a public offense, and one which is triable in the Eastern...