Grove v. United States , 3 F.2d 965 ( 1925 )

WOODS, Circuit Judge.

The indictment charges conspiracy by John Routzahn, Wilbur Routzahn, Albert White, and Harry C. Grove, and other persons unknown, to transport and possess 1,000 cases of whisky on and prior to November 9, 1923, stored in the warehouse of the Outerbridge-Horsey Company, of Frederick, Md., distillery warehouse No. 17, in a manner not authorized by the National Prohibition Act. The overt act charged against the two Routzahns, Albert White, and other persons unknown was that they went to the vicinity of bonded warehouse No. 17, and by means of a false and fraudulent permit presented to A. M. Becker, secretary and treasurer of the warehouse company, obtained possession of 250 cases of whisky and loaded it into an automobile truck. Overt acts were charged against Grove in paying H. Walter Ganster, attorney, and Louis Mann, secretary and treasurer, of the Outerbridge-Horsey Company, on 1,000 eases of whisky, $5,000 on November 7th, $25,000 on November 9th, and $10,000, the final payment, on the same date, and on the last payment receiving a certificate showing the serial numbers of 1,-000 cases of whisky.

Tho defendants Routzahn and White were acquitted, and the defendant Harry C. Grove convicted. Grove assigns error in the conduct of the trial, in refusing to direct the jury to acquit him, and in the refusal of other requests to charge.

Much stress is laid on the contention that the defendant did not have a constitutional jury trial. Tho trial began on March 24th and proceeded regularly until the morning of March 2Gth. On that day, when tho court met as usual at 10 o’clock in the morning, the trial judge stated to the jury that trial of the caso would have to he suspended because of the sickness of one of the jury, who was not able to come to the trial. The jury was excused until the following morning at 10 o’clock, to which time court was adjourned.

On March 27th, in view of the continued sickness of the juror, counsel for both parties agreed that the jury be discharged and a new jury be sworn to try the case, the new jury to consist of the remaining 11 of the jury first sworn and an additional juryman; that the testimony taken during the two days of the trial should be read to the new jury by the stenographer; that either party would have the right to recall the witnesses, if they were desired for further examination; that the witnesses who had already testified be recalled to the stand and sworn; that they be asked whether or not the testimony already given by them was true; and that the witness Becker be re-examined, if the stenographer who took his testimony did not return in time to read it to the jury.

The new jury was then sworn, and the court asked if counsel desired to make any statement to the jury. The prosecuting attorney made a brief statement, and, after him, counsel for defendants stated their case. The prosecuting attorney suggested that the 11 jurors who had already heard the testimony be excused,- which suggestion was opposed by counsel for defendants. The court stated to the jury that the circumstances were unfortunate, but that time would be saved by having the stenographer read the testimony, as agreed by counsel.

Thereupon H. Walter Ganster, Jr., was recalled to the stand, sworn, and testified that he had testified in the ease before 11 of the present jurymen and Mr. Bayne, the sick juryman, and that the testimony he had then given was true. Witness was excused, and Louis Mann was recalled to the stand and sworn. He testified that the testimony he had given in the trial before 11 of the present juryjnen and Mr. Bayne was true. This witness was then excused. Aaron N. Becker was then recalled to the stand, and testified that he had been sworn before in ■ the ease, and that the testimony he then gave was true. Witnesses were then excluded, by desire of counsel for both sides. The testimony of Ganster, Mann, and Becker was then read by the stenographer to the jury.

There can be no ground for saying that a legal jury was not provided and sworn after the discharge of the first jury, consequent on the illness of juror Bayne. When the new juror, Breebaek, was called, there were 12 jurors presented to the deféndant. He not only made no objection to any in-. dividual juror, or to the manner in which the jury were presented, but affirmatively accepted and agreed to the panel as it stood. But, even if defendant had objected to -the method of presentation, this court has recently held in Tierney v. United States, 280 F. 322, after full consideration, that the presentation to the defendant for challenge or acceptance of 12 qualified jurors at one time is legal. We adhere to that decision, which is in accordance with decisions of the Supreme Court in three cases: Pointer v. United States, 151 U. S. 396, 14 S. Ct. 410, 38 L. Ed. 208; Lewis v. United States, 146 U. S. 378, 13 S. Ct. 136, 36 L. Ed. 1011; St. Clair v. United States, 154 U. S. 134, 147, 148, 14 S. Ct. 1002, 38 L. Ed. 936.

Nor were the defendants deprived of the right to be confronted with the witnesses against them and have them testify in their presence and the presence of the jury. Each witness was separately resworn, counsel for * the government was ready to re-examine them, and the defendants had the opportunity to reeross-examine each of them. Thus, not only substantially, but in the strictest technical sense, the defendants were confronted with the witnesses. In consenting to the reading of their evidence before taken, defendants may well have had very good reasons for preferring that the witnesses should not repeat their testimony in person. They might well have thought that the testimony against ' them, repeated by the witnesses themselves, would make a greater impression against them, not only on the new juror, but on the 11 who had already heard it. They might well have thought, also, that a re-examination and reeross-examination might educe additional testimony against them. Whatever the defendants’ reason, they considered it to their advantage to consent to the reading of the evidence, and the law did not require the trial judge to override that consent.

We think no authority can be found, and no substantial reason can be stated, for saying that defendant eannot, by request and consent, substitute a written statement of a witness for his formal oral examination. On the contrary, after full discussion of the subject, the Supreme Court has held that defendant may waive the right to be confronted with the witnesses by agreeing to the admission as evidence of the statements of the witnesses made out of court not even under oath. The court says, in Diaz v. United States, 223 U. S. 442, 450, 32 S. Ct. 250, 252 (56 L. Ed. 500, Ann. Cas. 1913C, 1138):

“That this is so is a necessary conclusion from the adjudged eases relating to the like right secured by the Constitutions of the several states and the Constitution of the United States. Thus it is held that the right is waived where, by the consent of the accused, the prosecution is permitted to read in evidence the testimony of an absent witness given in some prior proceeding, Hancock v. State, 14 Tex. App. 392; Rosenbaum v. State, 33 Ala. 354; Williams v. State, 61 Wis. 281; State v. Poison, 29 Iowa, 133; or a statement of what such a witness would testify, if present, as embodied in an agreement made to avoid a continuance ©r to dispense with the presence of the witness, State v. Wagner, 78 Mo. 644, 648; State v. Fooks, 65 Iowa, 452; State v. Mortensen, 26 Utah, 312; State v. Lewis, 31 Wash. 75, 88; or the deposition of sueh a witness taken within or without the jurisdiction, Butler v. State, 97 Ind. 378; State v. Vanella, 40 Mont. 326; Wightman v. People, 67 Barb. 44; People v. Guidici, 100 N. Y. 503, 508; People v. Murray, 52 Mich. 288.”

Had the indictment limited the charge of the conspiracy to Grove, Wilbur Routzahn, John Routzahn, and Albert White, the acquittal of the three last-named would have been equivalent to an acquittal of Grove, since it requires more than one man to commit the crime of conspiracy. But the indictment also charges that other persons unknown were parties to the agreement, and there was evidence tending to prove the implication of persons not mentioned by name. One of the trucks in which the wliisky was to be loaded was licensed in the name of King Bros. The other truck had a false Yirginia license, taken from the Central Automobile Company of Alexandria, Va. Wilbur Routzahn testified that one Barney Winkel lent him this license, and Grove testified that Winkel lent him part of the money paid for the certificates as a means of getting whisky. Winkel was Grove’s brother-in-law and on intimate terms with him. Cleveland Grove, a brother of the defendant, lent him part of the money to pay for the whisky. Cleveland Grove also, to protect the defendant from robbery, patrolled the road at the Jug Bridge, where part of the money was paid. When the last payment was made, Cleveland Grove and one King secreted themselves in the sehoolhouse nearby for the same purpose. The defendant also borrowed money to make the payment from Will Grove, Eddie Grove, and one Kidwey-lor. The defendant Grove testified he had never told anybody of the contemplated unlawful transaction, but admitted that he might have fold Cleveland Grove that he was buying some liquor. None of these persons — Winkel, Cleveland Grove, Bang, Eddie Grove, Will Grove, Kidweyler — testified in denial or explanation of their connection.

The jury, then, had before them, on the one hand, the circumstances set out, tending to show that persons not mentioned in the indictment were implicated as conspirators, and, on the other, testimony, of the defendant Grove only, that they were not. It makes no difference that these circumstances were made known by the testimony of Grove. The jury was at liberty to accept part of his testimony and reject the remainder. The verdict, finding one or more of these persons not named in the indictment to have been implicated with the defendant Grove in the conspiracy charged, was well supported by the evidence to whieh we have referred.

The evidence furnished no foundation for the request on the subject of entrapment. Ganster and Mann, who were agents of the distillery, and from whom the defendant Grove arranged to buy the certificates and thus get possession of the whisky, testified that they wont into the transaction at Grove’s request, and that they made known the whole matter to the prohibition agent. But they were never agents of the officers of the law. The evidence shows that Ganster informed the prohibition officers that Grove had proposed to him and Mann a scheme to defraud the government and get the whisky for sale. Upon this information, the officers did encourage Ganster and Mann to go forward with the scheme proposed by Grove, and to pretend to accept it, so that Grove might be detected; but the evidence does not show that the officers authorized or encouraged, or were ever informed of, a proposition by Ganster and Mann to enter into the conspiracy. The case, therefore, presented no question of entrapment, and the District Judge correctly so charged the jury. We have recently restated the familiar rule on the subject, in Newman v. United States, 299 F. 128:

“It is well settled that decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime. But decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime. When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor.”

The brazen trickery and deceit by which Ganster and Mann defrauded the defendant Gro.ve of at least $25,000 "was commented on by the District Judge in language of strong condemnation, in instructing the jury to receive their testimony with great caution. It was not error to decline to repeat the same thing in the almost identical language of the defendant’s request.

We find no error, and judgment must be affirmed.