Van Dam v. United States

Decision Date06 January 1928
Docket NumberNo. 4988.,4988.
Citation23 F.2d 235
CourtU.S. Court of Appeals — Sixth Circuit


Joseph W. Sharts, of Dayton, Ohio, for plaintiff in error.

Harry A. Abrams, Asst. U. S. Atty., of Cincinnati, Ohio (Haveth E. Mau, U. S. Atty., of Cincinnati, Ohio, on the brief), for the United States.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

DENISON, Circuit Judge.

The plaintiff in error, Van Dam, hereafter called respondent, and Ellison and Shaffer, were, on April 14, 1927, arrested and brought before a commissioner for examination, upon the charge of transporting and selling intoxicating liquor. While this examination was pending under adjournment, the grand jury indicted Van Dam and Ellison for conspiracy to violate the National Prohibition Act (27 USCA). They were both convicted. Van Dam brought this writ of error, in which Ellison did not join. Counsel say — and it is apparently a proper inference — that Ellison preferred to and did serve out his sentence.

Van Dam has numerous complaints. They have been presented forcefully enough to have specific attention; but, as to most of them, brief mention will suffice.

1. The indictment was good. Leonard v. U. S. (C. C. A. 6) 18 F.(2d) 208. The only point not covered by the Leonard Case is the claim that the indictment is too broad, in that it charges conspiracy to transport, possess, and sell liquor in Montgomery county, Ohio, "and divers other places." This was, at the worst, surplusage. There might well have been in fact a conspiracy to do these acts in Montgomery county and elsewhere, as events might determine, and the conspiracy still have been a single crime. We see no reason to doubt that a trial under this indictment would serve its full purpose to prevent a second jeopardy for the same offense. Rudner v. U. S. (C. C. A. 6) 281 F. 516.

2. The pendency of the preliminary examination before the commissioner for the substantive offense plainly presented no bar to an indictment for the conspiracy, even if the offenses had been the same. Roth v. U. S. (C. C. A. 6) 294 F. 475. Plaintiff argues that there is a constitutional right to preliminary examination before indictment, and cites U. S. v. Wetmore (D. C.) 218 F. 227, and U. S. v. Jenks (D. C.) 258 F. 763. Both these cases recognize that the district attorney may "send up" an indictment, without leave of court, and that this makes unnecessary any preliminary examination.

3. Respondent claims that he was rushed into trial without opportunity to prepare his defense, upon an indictment which was very vague and general, and upon which he had been refused a bill of particulars, and that thus he was denied due process of law. We do not doubt that a sufficiently extreme case in these respects would be a deprivation of due process, and that to enforce a trial two days after the arraignment would be in some cases beyond the discretion of the trial court; but the inquiry is not important in this case. It is evident from the course of the trial that, if a bill of particulars had been given, it would have been confined to the overt acts alleged.

Although the time after indictment was short, a month had expired since the arrest for the substantive offense, so that respondents had long understood the general nature of the charge. Its formulation in a conspiracy indictment brought no surprise, since the conspiracy was inherent in the joint offense, which had been charged, as well as in the overt acts alleged. The record does not show that any satisfactory reasons were presented to the court why more time was necessary to prepare, or why Van Dam would be prejudiced by proceeding with what turned out to be a trial only for the conspiracy inherent in the overt acts charged. The motion for continuance was presented and denied on the 12th, when the case was called for trial; but, before any proof was taken, the case was, for some reason, adjourned three days. When the trial was resumed, there was no intimation from respondent that the delay, as thus received, was not satisfactory, or that he needed more time.

4. Complaint is made because, the jury having been selected and sworn, and the respective statements of counsel made on Thursday, and the case adjourned until Monday, the court, upon reassembling on Monday, entered an order withdrawing a juror, making a mistrial, and proceeded to impanel a new jury composed of 11 of the old jurors and one new one. It was directed that the opening statements of counsel should be repeated, if desired. The reason stated by the court was that one of the jurors had become ill during the recess and could not serve. Respondent's counsel concede that a disabling illness of a juror would justify this procedure, but insist that there must be a judicial inquiry, at which the respondent could be heard, to determine the fact of such illness. For the purposes of this opinion, this insistence might be conceded; but no such suggestion was made to the trial court. The court announced the fact of this illness, as reported by the marshal. Everybody seemed to take the fact for granted. We must assume that, if it had been challenged or doubted, the court would have provided for the proper inquiry. There was no error in omitting such an inquiry, when it was not asked.

5. Part of the evidence used on the trial was a quantity of whisky seized in a garage. Counsel argue questions of the necessity of a search warrant and of participation by the federal officers in the seizure. Perhaps there was the necessary effort to raise the question before trial. All these matters are immaterial. The garage was in the possession of Ellison as lessee; Van Dam was not shown to have anything to do with it; Ellison does not appeal; and clearly Van Dam cannot be heard upon that point. Remus v. U. S. (C. C. A. 6) 291 F. 501, 511.

6. Then it is argued that the facts clearly show a case of entrapment. They do not; the evidence, if...

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