United States ex rel. Mayer v. Glass, 25 F.2d 941 (3d Cir. 1928)

WOOLLEY, Circuit Judge.

These eleven citizens of Pennsylvania were named with twelve citizens of other states as defendants in three inter-related indictments found in the District Court of the United States for the Eastern Division of the Northern District of Ohio charging conspiracies to violate the National Prohibition Act (27 USCA). In proceedings instituted by the government for their removal to the Ohio district for trial, they were held and committed by a United States Commissioner for the Middle District of Pennsylvania. Thereupon each defendant petitioned the District Court for the Middle District of Pennsylvania for a writ of habeas corpus and moved to quash the complaint and otherwise annul the action of the Commissioner. The government at the same time petitioned the court for warrants of removal. All matters thus raised were heard together and the court dismissed the petitions for writs of habeas corpus and the motions to quash the complaints and entered orders for the commitment of all defendants to the United States Marshal for the Pennsylvania district and their removal to the Ohio district for trial. These appeals followed. Although separately argued, they were, because of the relation of one to another, heard at the same time and will be disposed of in one opinion.

The government supported its petitions before the Commissioner and before the court solely by the indictments as evidence of probable cause. The defendants attacked the complaints on which the arrests were made and attacked the indictments also; and, except in the cases against Dooley, Purcell, McGowan, McHugh and Bossert, they relied wholly on the averments in their petitions for writs of habeas corpus to overcome the indictments as prima facie evidence of probable cause. On these appeals the defendants raise twenty-three separate and distinct questions, discuss the law of removal in every aspect and ask for its application to the meager facts of these cases.

[1] The law of removal was correctly stated by the learned trial judge and was recently reviewed by this court in United States v. Mathues, 19 F.(2d) 22, and Swan v. United States, 23 F.(2d) 148, with extended citation of supporting authorities. The cases at bar do not call for a re-statement of the law or a discussion of the law in the many phases which the industry of. counsel have brought into view for, after all, the cases are rather simple. We have, however, carefully considered all matters presented and find ourselves constrained to decide adversely to the appellants all questions save one and that is the ever present and Crucial question of probable cause. In deciding that question we have been guided by and shall pursue the discussion solely on the law which we have before stated as follows:

The indictment is introduced in proceedings under section 1014, R. S. (18 USCA § 591), “not-to establish the appellant’s guilt, but only as evidence to show that there was cause to believe his guilt probable enough to justify his removal for trial.” Swan v. United States, supra.

may attack it as not charging a crime and therefore as not showing probable cause.” United States v. Mathues, supra.

Our one inquiry, therefore, is whether the indictments charge a crime against each defendant and in that way show probable cause justifying his removal.

These eases illustrate the preference of some government officials, charged with the enforcement of the National Prohibition Act, to enforce that law through internal revenue statutes, customs laws, and the general law of conspiracy found in the Criminal Code, rather than through the National Prohibition Law itself, thus at times converting misdemeanors into felonies and hazarding the greater certainty of convictions under the prohibition law in order to obtain heavier penalties under other laws. Against this practice the federal judiciary has formally expressed itself. These eases also illustrate the opposite positions which parties in removal cases sometimes take, where the government’s law representative demands removal to a distant district of all defendants named in an indictment for conspiracy no matter how shadowy their connection with the offense may be and how unlikely their conviction, and where the defendants, shutting their eyes to their sole right of trial in the district “wherein the crime shall have been committed” and without any right of trial in the district of their residence, whether there or elsewhere at the time of the distant crime, In re Palliser, 136 U. S. 265, 267, 30 S. Ct. 1034, 34 L. Ed. 514, regard their home state as a sanctuary with right of trial by a jury of their fellow townsmen. Between these extremes, and wholly without regard to the views of others, it is the solemn duty of the court to find the true line and coldly to decide the law as it is written and „to apply it impartially in a given case.

Nos. 3730 to 3736.

[2] Except in the Purcell and Dooley Cases we accept as true all facts alleged in the indictments. Unverified averments in the petitions for writs of habeas corpus do not controvert them. The question as to each defendant is — does the indictment on the facts as alleged charge a crime against him? If it does, probable cause is shown and he must be removed. If it does not, probable cause is lacking and the warrant of removal cannot be sustained.'

The first indictment, though lengthy, is .clearly drafted. Naming only the parties • here concerned, it states by way of inducement that , the "Anthracite Beer Company at the city of Scranton, Pennsylvania, manufactured beer of an unlawful alcoholic content; that Mayer, its brewmaster, was in charge of manufacturing unlawful beer; that Purcell was a yardmaster of the Delaware, Lackawanna & Western Railroad Company at Scranton and that Dooley was a yard conductor in the employ of the same company at the same place, and that they secretively, put unlawful beer in transportation; that Loughran, Anderson, Lord and another were engaged in the business of buying and selling intoxicating liquor in carload lots; that Quinn was engaged in a similar business; that others were engaged in buying beer and distributing it in Cleveland, Ohio; that others were owners and drivers of trucks in Cleveland, engaged in making deliveries; that others were constables in a township in Ohio, affording protection; that another owned a siding in Cleveland ánd supplied it as a facility for receiving beer; and that still others were in the business of buying intoxicating liquor and selling it in Cleveland. All this without more might be the charging part of the indictment alleging substantive offenses against the National Prohibition Act. It is however only inducement. Next comes the charging part purporting to show a conspiracy between the nineteen defendants. Its critical words are as follows:

[3] Clearly the indictment thus far recited .would conform to the requirements of a criminal pleading for conspiracy at common law,

but to comply with the statutory law of the United States in respect to such a pleading the draftsman had to plead at least one overt act. He pleaded forty-eight. Of these at least one is an overt act charged against each defendant. Having elected to aver overt acts so extensively, the government is bound by them in proceedings of this kind and also is bound by what they show and do not show. As they purport to be acts in furtherance of the conspiracy charged, the averments must make it clear that they grew out of or had some relation to the conspiracy. Applying this test to the seven defendants here concerned under the first indictment, it will be eno'ugh to say that the test is satisfied on a showing that .the relation is established as to Mayer, Quinn, Loughran and Lord. Whether the test is met in respect to Dooley, Purcell and Anderson requires discussion.

[4] The one overt act charged against Mary L. Anderson is in these words:

We inquire, in the terms of an informal demurrer — well, what of it? As this is an averment of an act alleged to have been done by MaryL. Anderson in furtherance of the conspiracy, the acts of others, namely. of Loughran and Vincent, are not chargeable against her unless, indeed, she inspired or ratified them. She is not charged with having drawn the sum from her account, nor is it averred how or for what purpose Lough-ran drew'it, nor is she charged with transmuting the fund into a cashier’s check to the order of Vincent, nor is it charged that the cheek was ever delivered to Vincent or that with the cheek Vincent ever bought beer made by the Anthracite Beer Company or any one else. ■ The entire substance of the act charged against her is her knowledge of and consent to the withdrawal by Loughran, which, so far as the pleading discloses, is a mental attitude just' as consistent With the hypothesis of innocence'-as- with that of guilt. • On ■this showing we think the indictment fails as evidence of probable guilt as to Mary L. Anderson.

[5] The one averment of overt acts in respect to Dooley and Purcell are in these words:

To rebut probable cause evidenced by the indictment and by this alleged overt act, Dooley and Purcell produced independent witnesses who testified in substance that Dooley was a yard conductor in the Scranton yard on the Green Ridge Branch of the Delaware, Lackawanna & Western Railroad Company, in which there were switches for about twenty-five industrial plants, that his duties required him to place empty ears for these industries and to move the cars when loaded into the Scranton yard, and that when he dropped them there he had no further business, with them; that Purcell was a terminal trainmaster of the. same railroad in charge of about twelve yards covering an area of about fifty square miles in and about Scranton, having under him two general yardmasters, twenty-one yardmasters, about fifty clerks and about three hundred and fifty switchmen, and that he had general supervision over and responsibility for the daily movement of about seven thousand cars in that area. They further testified that he had nothing to' do “with the billing of cars or anything of that kind,” that under the rules of the company ears in yard movements require no bills of lading, and that they are moved from the terminals after bills ■ of lading have been obtained from agents who alone have authority to issue them. The -government did not impeach these -witnesses

nor did it controvert their testimony. Wo think their testimony proves that in moving cars of beer from the siding of the brewery to terminal yards without bills of lading, Dooley and Purcell were obeying the order's of their master, the railroad company, and that such testimony clearly rebuts the prima facie evidence of probable cause for which the indictment stands and that in consequence an order of removal should not have been made against James J. Dooley and George I. Purcell.

Nos. 3737 to 3739.

[6] This indictment is so far out of the ordinary as to require careful consideration. Though found against only three persons, Patrick I’. McGowan, William F. McHugh and Karl Bossert, its first several pages contain a verbatim copy of the whole of the inducement of the first indictment against the nineteen persons there named as defendants. It then continues with averments that McGowan was engaged in the business of making unlawful beer in Bartel’s Brewery at Edwardsville, Pennsylvania; that McHugh was the general manager and Bossert the browmaster. Thus far the nineteen persons first named and the three persons newly named might be charged with substantive offenses against the National Prohibition Act. But that is only inducement. Then comes the charging part of the indictment. Covering the identical period set forth in the first indictment, the grand jurors found that McGowan, McHugh and Bossert “knowingly, willfully, unlawfully, and feloniously did conspire, combine, confederate and agree together and with one another, and each with tho other a/nd with” the nineteen defendants in the first indictment (naming them) “who aro not herein indicted and are therefore referred to as conspirators, * to commit in the manner, by the means and to the extent hereinafter shown certain offenses against” the National Prohibition Act, reciting precisely the same offenses and their participation in the same manner by the spme persons named in the first indictment, with the conduct of McGowan, McHugh and Bossert added. Then follow the forty-eight identical averments of overt acts contained in the first indictment with three added to cover McGowan, McHugh and Bossert.

For want of a better term we shall call the conspiracy charged by the second indictment an ancillary conspiracy. Of course there is no such thing in law, yet that is what the draftsman tried to charge in a composite indictment. This second indictment charges a conspiracy subordinate to and a part of that charged in the first indictment, yet the first makes no allusion to that charged in the second. The second indictment charges a conspiracy between three newly named men and the nineteen named in the first indictment and excuses the latter group from complicity by not indicting them. The first indictment, all of whose fact averments are woven into the second, is silent as to conspiracy between the nineteen defendants there named and the three defendants named in the second indictment, yet looking at it one way both indictments are directed to one unified crime. Clearly there may have been a conspiracy between members of the smaller group, or between members of the smaller group and others in Ohio, but there cannot be a conspiracy as alleged between the smaller group at Edwardsville and the larger group at Scranton for many members of the larger group had no pleaded or no conceivable relation to those of the smaller. Moreover, many, if not all, overt acts averred in the first indictment, pleaded to show conspiracy in respect to the sale, purchase and distribution of beer brewed by the Anthracite Beer Company at Scranton cannot relate to the sale, purchase, and distribution of beer brewed in Bartel’s Brewery at Edwards-ville. Neither indictment discloses or even suggests any relation in management or ownership between the Anthracite Beer Company and Bartel’s Brewery, the two sources of the unlawful liquors which constitute the bases of the two conspiracies separately charged by the two indictments. Separate and concrete overt acts pleaded in proof of one definite conspiracy between many persons cannot evidence conspiracy between others to do a different thing. The things done and pleaded as overt acts in furtherance of tho conspiracy charged by the first indictment and repeated in toto in tho second are from their very nature such as to make it impossible for the new conspirators named in tho second indictment to conspire, as alleged, with all the conspirators named in the first. Both groups may have been linked up with the Ohio group, the purchasing and distributing end of the transactions, but neither indictment shows, when its charging part is read in the light of its averments of overt acts, that either of the Pennsylvania groups was linked up with the other and, accordingly, the second indictment does not charge a crime of conspiracy on which alone probable cause can be established and resort to section 1014, R. S., be had.

We are of opinion that the order for the

warrant of removal of Patrick F. McGowan, William F. McHugh and Karl Bossert should be reversed.

No. 3729.

[7] This indictment recites that James A. Jordan, owner and operator of the Castanea Ice & Beverage Company at Lock Haven, Pennsylvania, and Michael Newheile, his brewmaster, manufactured unlawful beer. It then charges that, they conspired to violate the National Prohibition Act by making unlawful beer and shipping it to Cleveland for sale and distribution. Jordan alone was apprehended and held for removal to Ohio for trial. This indictment has the virtue of simplicity. There is no attempt to tie up the conspiracy here charged with the conspiracies of the Scranton and Edwardsville groups. The indictment, we think, adequately states a crime, against the probable cause of which the defendant has produced nothing in rebuttal.

The order for the warrant for the removal of James A. Jordan must be sustained.

Nothing in this opinion should be construed as an expression by this court as to the guilt or innocence of any of the parties concerned or .as to the power of the government to proceed against them for any crime in a proper forum.

The formal decree of this court will be that in cases numbered 3730 to 3736 the part of the order of the District Court committing Jacob Mayer, William A. Quinn, William V. Loughran and Lester Lord, Jr., to the marshal for removal to the Eastern Division of the Northern District of Ohio for trial is affirmed, and the part committing James J. Dooley, George I. Purcell and Mary L. Anderson is reversed; that in cases numbered 3737 to 3739 the order of the District Court committing Patrick F. McGowan, William F. McHugh and Karl Bossert for removal to the Eastern Division of the Northern District of Ohio ■ for trial is reversed; and that in case numbered 3729, the order of the District Court committing James A. Jordan for removal to the Eastern Division of the Northern District of Ohio for trial is affirmed.

BUFFINGTON, Circuit Judge

(dissenting). The basis .of these removal proceedings is an indictment found in the United States District Court for Northern Ohio, charging conspiracy to violate the National Prohibition Act. Without technically discussing such indictment we may in general say the purpose of the conspiracy was to manufacture illegal beer at Scranton in the • Middle District of Pennsylvania, to sell the same and cause it to be transported by rail to Cleveland, in the Northern District of Ohio, and" there sell the same for beverage purposes. Manifestly, a large number of persons had to co-operate in the carrying out of such a widely extended'operation, the successive steps of which are set forth in the indictment.

Referring only to those alleged conspirators who were by the court below ordered to be removed for trial, which order is now reversed, and whose cases form the subject of the present dissent, we note that the indictment alleged the Anthracite Brewing Company of Scranton was engaged “in the business of manufacturing, selling, and disposing of beer for beverage purposes which contained more than one-half of 1 per cent, of alcohol. That George I. Purcell was yardmaster for the Delaware, Lackawanna & Western Railroad at Scranton, Pa., including cars placed, loaded and unloaded on the private siding of the Anthracite Beer Company, and over the movements and placing of cars in and out of the Green Ridge station of the Delaware, Lackawanna & Western Railroad Company. That James J. Dooley was employed as a yard conductor under the supervision of George I. Purcell. That Mary L. Anderson and Lester Lord, Jr., were engaged in the business of buying and selling and dealing in intoxicating liquor, to wit, beer, and bills' of lading and shipping orders representing carload lots of intoxicating liquors, to wit, beer, having offices and headquarters in the.City of Scranton, Pa!” It then specified the various means, persons, and places by and through which and whom beer could be transported to Cleveland and there disposed of, and then averred that “the grand jurors upon their oaths aforesaid do further present and find that the said . Mary L. Anderson, George I. Purcell and James J. Dooley, beginning on or about the 1st day of April, A. D. 1924, and ending on or about the 1st day of January, A. D. 1925, at Scranton, in the Middle District of the State of Pennsylvania, under the circumstances and conditions aforesaid, the said defendants and each of them, well knowing the existence of said circumstances and conditions, knowingly, willfully, unlawfully, and feloniously did conspire, combine, confederate, and agree together and with one aanother, and each with the other, to commit in the manner, by the mea/ns, and to the extent hereinafter shown, certain offenses

against the United States, to wit, to knowingly, willfully, unlawfully, and feloniously violate the terms and provisions of an Act of Congress of October 28, 1919 (41 Stat. 305), entitled ‘An act to prohibit intoxicating beverages, and to regulate the manufacture, production, use, and sale of high-proof spirits for other than beverage purposes, and to insure an ample supply of alcohol and promote its use in scientific research and in the development of fuel, dye, and other lawful industries,’ particularly title 2 thereof (27 USCA § 4 et seq.), the short title of which act of Congress is ‘National Prohibition Act,’ and which act of Congress is commonly known as the ‘Volstead Act,’ m that they would manufacture, possess, keep, barter, sell, transport, deliver, and distribute intoxicating liquor, to wit, a certain malt and cereal beverage known as beer, for beverage purposes, which said beer would then and there contain more than one-half of one per cent, of alcohol by volume, and would then and there be fit for use for beverage purposes, contrary to and otherwise than as authorized by the aforesaid National Prohition Act, all of which said offenses would be involved m the transactions of manufacturing, possessing, keeping, bartering, selling, transporting, delivering, and distributing said beer, which it then and there was the object of said unlawful and felonious conspiracy, combination, confederation, and agreement to accomplish in connection with the beer aforesaid; and that for a better understanding of the character and scope of said unlawful and felonious conspiracy, combination, confederation, and agreement, reference is hereby made to the following specifications of things, which among other things, some of said defendants were, according to the terms thereof, to do and neglect to do m knowingly carrying out the said unlawful and felonious conspiracy, combination, confederation and agreement, and also to the Overt Acts hereinafter set forth.”

The indictment then averred the Anthracite Beer Company was to make the unlawful beer “which said beer was to be sold and distributed for beverage purposes in Cleveland” ; that Purcell and Dooley were to move ears of beer from the Anthracite Beer Company’s siding and allow them to remain on a certain yard “until such time as said carloads of beer were disposed of and conditions were favorable to the movement of said cars to their respective ultimate destinations”; that Mary L. Anderson and certain named other persons “were to buy intoxicating liquor, to wit, beer, and bills of lading representing carloads of said beer, from the aforesaid Anthracite Beer Company, and divers other persons and corporations whose names are to the grand jurors unknown, and therefore not herein mentioned, and were to sell same to Charles Basso and Frank Delahanty in the city of Cleveland, Ohio; that Charles Basso and Frank Delahanty were to purchase intoxicating liquor, to wit, beer, from the aforesaid * a Mary L. Anderson and Lester Lord, Jr., who were to procure the same from the Anthracite Beer Company, at the city of Scranton, Pennsylvania, aforesaid, and were to sell, transport, deliver, furnish, and dispose of the aforesaid beer to divers owners and proprietors of so-called ‘soft drink parlors’ in the city of Cleveland aforesaid, for beverage purposes.”

Meeting the requirement that, to maintain an indictment for conspiracy, some overt act in furtherance of such conspiracy must be shown, the present indictment alleged the necessary one overt act and some 47 additional ones, amongst which were acts of George I. Purcell, James J. Dooley, and Mary L. Anderson, as to which and whom the indictment, in addition to the extract quoted in the court’s opinion, to wit, the fourth and forty-fifth, averred this further and introductory clause, to wit, “and the grand jurors aforesaid, upon their oath aforesaid, do further present and find that certain of said conspirators at the several times and places hereinafter mentioned, in connection with their names, did do certain acts to effect the object of said unlawful and felonious conspiracy, combination, confederation, and agreement, that is to say,” which is by this reference a part of the fourth specification, which names Dooley and Purcell, and the forty-fifth, which names Mary L. Anderson.

In view of the foregoing, it seems to me the indictment charges an unlawful conspiracy, and so alleges the guilty participation of Dooley, Purcell, and Miss Anderson, and makes out such a case of probable cause as warrants their removal. Miss Anderson made no proof whatever to controvert the allegation that the overt act alleged to have been done by her was not done as above “to effect the object of said unlawful and felonious conspiracy, combination, confederation, and agreement,” and the fact that Dooley and Purcell proved that some of the acts they did were done in the course of their employment does not negative the fact that even such acts might be done at times and in a manner to aid in this conspiracy, or negative the finding of the grand jury that they

■“did do certain acts to effect the objeet of said unlawful and felonious conspiracy,” etc., as above averred and found by the grand jury. Whether they did, whether they performed acts, even in the course of their duty, in a way to aid- the purpose of the conspiracy, was to be determined by the trial, not the removing, court. I therefore record my dissent to the action of the court in so far as it failed to order the removal of Miss Anderson, Dooley, and Purcell.

The status of the defendants McGowan, Bossert, and McHugh, who were respectively the brewmaster, proprietor, and the shipping clerk of a brewery at Edwardsville, in the Middle District of Pennsylvania, and their relation to the alleged conspiracy, is substantially the same as that of Mayer, the brew-master of the Anthracite Brewing Company, and so warranted their removal. I therefore note my dissent in so far as their removal was not ordered.