Zucker v. United States

• Decision Date: 16 March 1923
• Docket Number: 2930,2931.
• Parties: ZUCKER v. UNITED STATES. KRIVIT et al. v. SAME.
• Court: U.S. Court of Appeals — Third Circuit

288 F. 12

ZUCKER v. UNITED STATES.

KRIVIT et al. v. SAME.

Nos. 2930, 2931.

United States Court of Appeals, Third Circuit.

March 16, 1923

Robert H. McCarter and G. W. C. McCarter, both of Newark, N.J., for plaintiff in error Zucker.

Warren Dixon, of New York City, and Mark Townsend, Jr., of Jersey City, NJ., for plaintiffs in error Krivit and others.

Frederic M. P. Pearse, of Newark, N.J., for the United States.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS Circuit Judge.

The indictments on which the defendants were tried and convicted charged them with conspiracy unlawfully to 'possess sell, and transport intoxicating liquors, prohibited by law containing more than one-half of 1 per cent. of alcohol by volume and fit for use for beverage purposes. ' To effect the object of their conspiracy the indictment charged that on January 28, 1922, Millard Van Blaricom and Harry T. Clark conveyed in an automobile Charles H. Scandalis, Charles E Phillips, and John T. Richardson from the city of Newark to the place of business of Samuel Krivit and Barney Cohen at 85 Fairmount avenue in the city of Jersey City, N.., where Krivit, Cohen, Titlebaum, and Zucker did unlawfully sell to Scandalis and Richardson 14 barrels of alcohol, being intoxicating liquor, prohibited by law, containing more than one-half of 1 per cent. of alcohol by volume and fit for beverage purposes; that Titlebaum and others took the alcohol from the storehouse of Cohen and Krivit for the purpose of placing it on a truck, whereupon Richardson paid Cohen on account of the sale $350.

The testimony of the government tends to establish the following facts:

Charles Scandalis, a prohibition agent, came to Newark from Washington, and met Van Blaricom, whom he had previously known, and who was then in the automobile business. Scandalis had formerly been in the bootlegging business, and while in that business was known by Van Blaricom. He told Van Blaricom that he wanted to buy some alcohol. Van Blaricom went to the drug store kept by Zucker and asked him where he could obtain alcohol or whisky. Zucker said that he did not handle it himself, but it might be possible that he could get in touch with some one who did. The following day, Saturday, Van Blaricom and Scandalis went back to Zucker's store, and Zucker told them 'that he had not been able to do anything so far, but would let (them) know a little later'; that 'his people were out of town.' The following Thursday Van Blaricom and Scandalis went again to the store of Zucker. At these meetings the conversation related to the purchase of alcohol, which was to be sold to them at 'approximately $10 a gallon.' On the following day, Friday, Van Blaricom, Scandalis, Phillips, an internal revenue agent, Clark, and a man by the name of Schwartz drove to Zucker's store. Scandalis, Van Blaricom, and Phillips went into the store, while the others remained in the car. Zucker was shown a roll of bills, whereupon he said:

'All right; if you really mean business, I will see what I can do.'

He further said that he would be able to tell them something definite in about an hour. In an hour Van Blaricom called up Zucker, who told him that he would not be able to do anything that day, but would probably be able to do something the next day, which was Saturday.

The next day Van Blaricom, Scandalis, and Clark went to Zucker's drug store, and while they were there Krivit came in and was introduced to Clark and Van Blaricom. He said, 'I suppose you are here on the same business I am.' Zucker told Van Blaricom that Krivit was the man that he had in mind to furnish the alcohol. That Saturday afternoon Van Blaricom, Scandalis, and Clark got a truck and went to Krivit's junk shop. While there Scandalis called Aucker on the telephone at his drug store, and told him to come to Krivit's place of business, but he refused. Clark ran down in an automobile for him, but he still refused to come. Upon Clark's return 14 barrels of alcohol were brought out of Krivit's storehouse. It was tested and ready to be loaded on the truck in the presence of Cohen, Krivit, Titlebaum, Van Blaricom, Clark, and Richardson. While Krivit was writing out a so-called permit on a blank used by the Prohibition Department, and known as 'form No. 1410,' Richardson paid Cohen $350 on the alcohol and immediately thereafter the disguise was thrown off and the defendants were arrested. Zucker, Cohen, Krivit, and Titlebaum were tried, convicted, and have brought their writ of error to this court to review the judgment of the District Court.

There are 24 assignments of error, but the principal ones relate to two propositions:

1. The indictment does not sufficiently charge a crime.

The same questions raised in this indictment were raised in the case of Peter Rulovitch et al. v. United States (C.C.A.) 286 F. 315. Substantially the same language was used in charging the crime in that indictment as is used in this one. Our decision in that case disposes of the contentions here made, and we will not repeat what Judge Woolley there said.

2. Government agents induced the defendant to commit the crime and participated in all that was done, but in fact they never anticipated a real sale of alcohol, but only the entrapment of the defendants.

We are in harmony with the law as declared in the many cases cited by counsel. It is unlawful for a government official to induce a person to commit crime in order to obtain a conviction of him. If such official by persuasion and false representation incites and lures a defendant to commit a crime in order to entrap him, a conviction based thereon will not be sustained, on the ground that it is against public policy. Butts v. United States (C.C.A.) 273 F. 35, 18 A.L.R. 143; Lucadamo v. United States (C.C.A.) 280 F. 653; State v. Dougherty, 88 N.J.Law 209, 96 A. 56, L.R.A. 1916C, 991, Ann. Cas. 1917D, 950. The difficulty about the defendant's contention is that the facts do not bring it within the rule of law laid down in the cases cited. It cannot be maintained with any plausibility whatever that any of the defendants, except Zucker, were induced to commit the crime.

In the case of Woo Wai v. United States, 223 F. 412, 137 C.C.A. 604, Woo Wai was not suspected of committing any such...