Gillespie v. United States, 13 F.2d 736 (2d Cir. 1926)

*737 Martin Conboy, of New York City, for plaintiffs in error.

Percy R. Smith, Asst. U. S. Atty., of Buffalo, N. Y.

Before HOUGH, HAND, and MACK, Circuit Judges.

MACK, Circuit Judge (after stating the facts as above).

It was proven that whisky, bearing Canadian labels, was brought within the territorial waters and as to a part thereof remained on the boat when tied up to the soil of the United States, and as to another part was landed upon soil of the United States from the tug described on the night in question, and it was further proven that the men who either fled or surrendered when the first police party arrived at Gratwick's were busied in landing the whisky. The jury could infer from these facts that all of these men were engaged in transporting and secreting the liquor so landed.

Plaintiffs in error, however, are not accused of "running" this liquor, or of any offense under the National Prohibition Law; nor does that statute have any connection with their crime, except to render the bringing into the United States of the whisky in the manner above described unlawful, for reasons not necessarily having a connection with revenue. The statute relied upon, and above quoted, does not speak of smuggling; the statutory words in section 593 (b) are to "bring into the United States." It is in section 593 (a) that punishment is prescribed for one who "smuggles or clandestinely introduces into the United States any merchandise which should have been invoiced," etc.

Thus the indictment herein goes further than is necessary under section 593 (b). Under that section the defendants would be guilty if, after the whisky had been "brought into the United States," they "in any manner facilitated the transportation, concealment, or sale" thereof; whereas they are accused of facilitating the "transportation and concealment" of certain whisky after it had been "smuggled and clandestinely introduced into the United States."

The language of the indictment is not, however, harmful; for, while it may be admitted that bringing into the United States merchandise contrary to law is not necessarily smuggling, it is undoubtedly true that all *738 goods smuggled and clandestinely introduced into the United States are necessarily brought into that country contrary to law.

Smuggling is a word to be interpreted by reference to Keck v. United States, 172 U.S. 434, 19 S. Ct. 254, 43 L. Ed. 505, a case decided upon unusual consideration. We think the court's essential position is stated at pages 442, 443 (19 S. Ct. 254) and the opinion of Lowell, J., in United States v. Jordan, Fed. Cas. No. 15,498, 2 Low. 537, was practically adopted against the view of the minority that the actual unlading of goods on the shore was not an essential ingredient of the offense of smuggling.

Substantially the court in the Keck Case accepted and elaborated the definition of "smuggling" given in 1 Hawk. P. C. c. 30, § 1 (Ed. 1824): "Smuggling consists in bringing on shore, or in carrying from the shore, dutiable goods, wares, or merchandise, for which duty had not been paid, or goods the importation of which is prohibited." That, under this definition, smuggled goods were lying on Gratwick's dock when the police sergeant's party appeared there, is beyond all question. But, if there were smuggled goods there, there were also goods brought into the United States contrary to law. In fact, all the whisky still on the tug, while it was not yet smuggled, was in the United States and unlawfully brought there, because, as charged in the indictment, it was brought in without a permit. See, on the nature of smuggling, United States v. Thomas, Fed. Cas. No. 16,473, 473, Ben. 370; and, as to the applicability of section 593 (b) of the Tariff Act to the "running" of liquor, vide Nounes v. United States (C. C. A.) 4 F.(2d) 833; Bailey v. United States (C. C. A.) 5 F.(2d) 437; United States v. Cardwell (D. C.) 9 F.(2d) 146.

The first count in the Keck Case was based on R. S. § 3082 (Comp. St. § 5785), substantially identical with section 593 (b) of the Tariff Act of 1922. That count was held insufficient and there was no dissent on this point because of the failure to specify in the indictment in what way the importation was contrary to law. In the indictment before us it is specifically charged in the allegation that the importation was without the required permit.

However inartistic the indictment in this case may be, it is clear that it was intended to charge the offense created by section 593 (b), and not that created by section 593 (a). These defendants are not charged with having smuggled the goods, or with being accessories to the smuggling; they are charged with having facilitated the transportation of the goods after they had been smuggled, and with knowledge that they had been brought into the country contrary to law. It is unnecessary to determine whether, as used in this indictment, the word "smuggling" is to be given a meaning different from that given to it by the majority of the court in the Keck Case; that is to say, as synonymous with "brought into" the country. We say this because, if, as here used, it means and was intended to mean "brought into" the country, and there unladen, the second element, the unlading, may be treated as surplusage, inasmuch as the offense created by section 593 (b) is established, if it be proven that the goods were brought into the country contrary to law, even though they were never unladen.

Whatever possible doubt there may be on this record, whether the smugglers made away with any goods which they, and not the police, had unladen, there was sufficient evidence for a jury to find that, when the defendants arrived, goods were there which had been "brought into" the United States contrary to law that is, without the required permit and that these disappeared.

The evidence being clear that there was to defendants' knowledge whisky brought into this country at the time and place alleged, contrary to law, did the plaintiffs in error facilitate the transportation and concealment of the same? We think there was testimony from which a jury could find that they did; Kinzly as principal, and Gillespie as at least an aider and abettor, under Criminal Code, § 332 (Comp. St. § 10506).

Without dwelling on the evidence, confused and for the most part unwilling, as to just what whisky was on land when the raiding party arrived, and what became of it, it was plain that not all the whisky brought in was captured and kept, and there was also evidence that some of the whisky brought in was abandoned under the direction of Kinzly. It is plain that the escape of the tug, the abandonment of the rum runners' motorcars, and the discharge of the captured men were acts facilitating the transportation and concealment of each and every bottle of whisky that was on the tug on the trip in question.

Judgment affirmed.