De Witt v. United States

• Decision Date: 30 June 1923
• Docket Number: 3803.
• Citation: 291 F. 995
• Parties: DE WITT v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

291 F. 995

DE WITT v. UNITED STATES.

No. 3803.

United States Court of Appeals, Sixth Circuit.

June 30, 1923

W. H Boyd, of Cleveland, Ohio (Boyd, Cannon, Brooks & Wickham, of Cleveland, Ohio, on the brief), for plaintiff in error.

Berkeley W. Henderson, Asst. U.S. Atty., of Cleveland, Ohio (Edwin S Wertz, U.S. Atty., of Cleveland, Ohio, on the brief), for the United States.

The plaintiff in error, Theodore De Witt, was convicted on an indictment charging a criminal conspiracy between himself Thomas L. May, and W. J. McNab, beginning on or about the 13th day of August, 1921, and ending about the 20th of August, 1921, unlawfully and willfully to violate sections 6, 10, and 25 of title 2 of the National Prohibition Act (41 Stat. 305) by transporting and causing to be transported 96 cases of wine from Lachine, Canada, to Cleveland, Ohio, and to sell the intoxicating liquors so transported and containing more than one-half of 1 per cent. of alcohol by volume and fit for use for beverage purposes to Theodore De Witt in violation of the sections of the National Prohibition Act above mentioned.

The indictment charges three overt acts, which, in substance, are as follows:

First. The entering into the unlawful agreement and conspiracy charged in the indictment.

Second. The unlawful transportation of 96 cases of Vermouth, Port, and Burgundy wines and other intoxicating liquors from Canada to Cleveland, Ohio, on the steam yacht known as the 'Venice' for the purpose of sale to Theodore De Witt.

Third. The employment by De Witt of Ivy Burney to transport and deliver the 96 cases of intoxicating liquors from the yacht 'Venice' to No. 1211 Euclid avenue, in the city of Cleveland, Ohio.

May and McNab reside in Canada and were never arrested. Upon the trial of De Witt evidence was offered by the government tending to prove that 97 cases of Anderson Scotch whisky were transported in the month of May, 1921, from Canada to Cleveland on the yacht Tranquillo, owned by Osborne and Lavelle of Canada, and in charge of Capt. William L. Curry, 60 cases of which were bought by defendant (who was steward of the Union Club), and delivered to him from the yacht Tranquillo by Ivy Burney; that at about this time, a further order was given by De Witt to Osborne and Lavelle for substantially 300 cases of wine and whisky to be transported from Canada and delivered to him in Cleveland; that in June of the same year another cargo consisting of 200 cases of Johnny DeWar whisky was transported on the yacht Tranquillo, in charge of Capt. William L. Curry, from Canada to Cleveland, 60 cases of which were sold to De Witt and delivered to him by Ivy Burney and Joe Basco from the yacht Tranquillo; that before the balance of the whisky constituting this cargo could be sold and delivered to other purchasers, the yacht Tranquillo and the whisky still on board were seized and confiscated by the government. This ended the connection of Osborne and Lavelle with defendant De Witt, so far as disclosed by the evidence. To the introduction of this evidence by the government the defendant at the time objected. His objections were overruled and exceptions were noted.

The evidence offered by the government directed to the conspiracy charged in the indictment tends to show that shortly after the seizure of the yacht Tranquillo by the government officers, a man by the name of Arnott inquired of Capt. Curry, if he knew anything about a wine order in Cleveland, and Capt. Curry told him that he thought there was such an order; that shortly thereafter Arnott appeared in Cleveland and told the witness Ivy Burney that De Witt had verified this wine order but refused to advance any money upon it; that a day or two later Burney had a conversation with De Witt in which De Witt made a similar statement; that about this time, or shortly thereafter, W. J. McNab and Thomas L. May purchased the yacht Venice and placed it in charge of the same Capt. Curry who had been in charge of the Tranquillo before and at the time of its seizure; that Arnott handed this wine order that he said had been verified by De Witt, to Thomas L. May; that May purchased the 96 cases of wine described in the indictment at Lachine, Canada, caused it to be placed on board the yacht Venice, and directed Capt. Curry to proceed with the yacht to Cleveland, Ohio, and to lie out by the crib where he could be met with another boat to which the cargo of wine could be transferred; that May went to Cleveland by rail; that he reached there and registered at the Hollenden Hotel before the arrival of the Venice; that De Witt told Burney that May was at the Hollenden Hotel and had 96 cases of imported wines coming on the boat; that he had made arrangements to buy this wine and Burney then called upon May at his hotel and was informed by him that Capt. Curry was on his way from Canada in charge of the yacht Venice and that he wanted Burney to meet the boat at the crib at midnight; that Burney arranged to do this, but the Venice did not arrive that night; that it did arrive the next night and tied up at the Pennsylvania Docks; that the boat left these docks the next afternoon, returning to the Great Lakes Dredging Company dock, located at the foot of West Fifty-Fourth street, Cleveland, Ohio; that about midnight, while Burney and others were unloading this wine and placing it on the truck, the wine and boat were seized by government officers.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge (after stating the facts as above).

The first point made is that the indictment is insufficient because it does not state more in detail what the violation of the law was to be. Counsel say:

'The indictment must go further; it must state what the violation was or of what the offense consisted.'

The indictment charges that--

The defendants did conspire and agree together 'to commit an offense against the United States, to wit, to unlawfully and willfully violate sections 6, 10 and 25 of title II of the * * * National Prohibition Act, that is to say, that the said May and McNab would transport suitable intoxicating liquors * * * from Lachine in the Province of Quebec, Dominion of Canada, to Cleveland, in the state of Ohio, and would there sell to the said De Witt said ninety-six cases of distilled spirits and intoxicating liquors * * * in violations of sections 6, 10 and 25 of title II,' etc.

The specific criticism is that the statutory offenses are transporting without a permit, transporting without making record, and transporting with intent to sell. Cases are cited which hold that an indictment for conspiracy to possess intoxicating liquors contrary to the provisions of the law is insufficient. U.S. v. Dowling (D.C.) 278 F. 630; Hilt v. U.S. (C.C.A. 5) 279 F. 421. These cases can be distinguished. Not all possession is unlawful. No affirmative action by the possessor of ante-prohibition liquor, like getting a permit or making a record, is necessary to make his possession lawful. Not so as to transportation. There is an underlying general prohibition, which can be avoided only by the affirmative act of the one who transports. We think a charge that intoxicating liquors were transported in violation of sections 6, 10, and 25, is a good enough charge that the transportation was without any statutory excuse; and that when the particular transportation is so completely identified as it is here, by stating the circumstances, the indictment is sufficient. Rudner v. U.S. (C.C.A. 6) 281 F. 516.

Sale or transportation in violation of the provisions of the specific sections of the act named cannot be a sale or transportation authorized by other provisions of the act. There is no substantial difference between the allegation that the defendants conspired to violate section 6 of the act, by transporting liquor in violation of section 6, and the allegation in the Rudner Case, which charged a conspiracy to violate the act by transporting, etc., otherwise than as authorized by the act and in violation of its provisions. Further, the act expressly provides that it shall not be necessary to negative possible defenses. This provision is not without force in determining the essentials of this indictment.

For these reasons we hold the indictment good.

The witness Curry, captain of the Venice, was permitted to testify that before leaving Montreal, May, one of the owners of the boat and shippers of the liquor, had told him that it was intended for the Union Club. At the same time the jury was cautioned that this was not evidence as against DeWitt that he was a member of the conspiracy. This admission is said to be error, because May's statement, while made by one of the conspirators, did not pertain to the execution of the conspiracy, since the captain's part in its execution was only to take the liquor to the vicinity of Cleveland. It is therefore said that May's statement to Curry was mere gossip. Without critically examining the rule which plaintiff in error invokes, that such statement, to be admissible against other conspirators, must be of importance to the carrying out of the plan, we think the rule, however broad it may be, does not operate to exclude this testimony. Curry was placed in possession and control of the yacht and cargo, and charged with the responsibility of delivering it to the right person. In order that he might properly discharge this...