United States v. Moe Liss

• Decision Date: 19 June 1939
• Docket Number: No. 341.,341.
• Citation: 105 F.2d 144
• Parties: UNITED STATES v. MOE LISS.
• Court: U.S. Court of Appeals — Second Circuit

105 F.2d 144 (1939)

UNITED STATES v. MOE LISS.

No. 341.

Circuit Court of Appeals, Second Circuit.

June 19, 1939.

Sanford H. Cohen, of New York City (George Cohen, of New York City, of counsel), for appellant.

Vine H. Smith, U. S. Atty., of Brooklyn, N. Y. (James G. Scileppi and Frank J. Parker, both of Brooklyn, N. Y., of counsel), for the United States.

Before SWAN, CHASE, and PATTERSON, Circuit Judges.

PATTERSON, Circuit Judge.

The appellant and his wife were indicted for violations of the narcotic laws. The first count charged them with facilitating the transportation and concealment of 48 cubes of morphine after the same had been imported into this country in violation of law, with knowledge of unlawful importation, in violation of the Jones-Miller Act, 21 U.S.C. § 174, 21 U.S.C.A. § 174. The second count charged them with purchasing and selling morphine outside the original stamped package, in violation of the Harrison Act, 26 U.S.C. §§ 1040-1054, 1383-1391, 26 U.S.C.A. §§ 1040-1054, 1383-1391. At the trial the evidence for the government consisted of the testimony of police officers of the City of New York who made a search of the apartment occupied by the defendants and found the morphine hidden in a hole below the floor. Prior to trial the appellant's wife moved to suppress the evidence on the ground of unlawful search and seizure, and at the trial the appellant made objections on the same ground, but the motion and objections were overruled. The appellant took the stand and testified that he used narcotics, that he had obtained the morphine from a friend for his own use and had placed it in the hole, that he did not import it and did not know whether it had been imported into the country by others. The appellant's attorney, in summing up at the close of the case, said to the jury, "I say that the defendant Moe Liss is guilty of the second count of the indictment". The trial judge then asked whether the defendant pleaded guilty to the second count, to which the attorney responded that the defendant Moe Liss did so plead. In charging the jury, the judge said that Moe Liss had pleaded guilty to the second count and that the jury should consider only the first count as to that defendant. The jury acquitted the wife, but found the appellant guilty on the first count. He was sentenced to ten years on the first count and five years on the second, the sentences to run concurrently.

The appellant says that he did not plead guilty to the second count. The point urged is that he was not asked directly whether he pleaded guilty and did not himself utter any words or make any signs. But he was present and said nothing when his attorney told the jury that he was guilty on the second count and told the judge that he pleaded guilty to that count. He was also present and said nothing when the judge told the jury that he had pleaded guilty to the second count. The appellant could not have misunderstood the significance of what was taking place. No exception was taken before or after verdict. The plea of guilty to the second count was sufficient. We pass to the appellant's grievances over his conviction on the first count.

It is said that the court erred in denying the motion to suppress the evidence of the finding of the morphine, for unlawful search and seizure. The moving papers on the appellant's behalf showed that the raid was conducted by police officers of the City of New York, but the appellant's wife gave it as her belief that federal agents were also present and that the entire affair was at the instance of federal agents. In the answering affidavits by the police officers it was stated that no federal agents were present, that federal agents did not inspire the search, that the entry into the house was to question the appellant about a murder and to look for concealed weapons. When these positive statements are contrasted with the mere belief of the appellant's wife, it is plain that the court below did not err in finding that the search was the activity of state officers, that federal agents did not co-operate, and that no case for suppression of the evidence seized was made out on the preliminary motion. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159.

The appellant also complains that at the trial the court deprived him of the chance to show by cross-examination of the police officers that the raid had been instigated by federal agents. We take it that if the raid had been inspired by...