250 F. 747 | 2d Cir. | 1918
(after stating the facts as above),
“The actual law of nations plaees no restriction whatever upon the purchase of provisions or of coals by a belligerent in neutral ports.”
No one, we think, will seriously assert the law of nations prohibits trade between citizens of a neutral state and those of a belligerent state with which it is at peace. As Lord Westbury expressed it:
“In the view of international law, the commerce of nations is perfectly free and unrestricted. The subjects of each nation have a right to interchange the products of labor with the inhabitants of every other country. If hostilities occur between two nations, and they become belligerents, neither belligerent has a right to impose, or to require a neutral government to impose, any restrictions on the commerce of its subjects.” Ex parte Chavasse, re Grazebrook, 34 L. J. (N. S.) 17.
And see Mr. Jefferson’s letter of May 15, 1793, to the British Minister, who had complained of the purchase of arms in this country by an agent of the French government with an intent to export them to
Two
“If two or more persons conspire either to commit any offense against the United States * * * in aify manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the' parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both.” Criminal Code, § 37; U. S. Comp. Statutes (1916) Ann. vol. 10, p. 12552, § 10201.
The provision in question does not use the word “corrupt” or “corruptly,” although as we have seen the indictments employ it. The conspiracy charged is a conspiracy to defraud the United States. If the facts charged in the indictment are true, and that was a question for the jüry, the defendants by the means described obtained from the officers of the government clearances for their vessels to which' they were not entitled and without which their ships could not have left their ports. It needs no argument to make it plain that this amounted to defrauding the United States, and that the wrong was a grievous one.
In Haas v. Henkel, 216 U. S. 462, 30 Sup. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112 (1910), the defendants were indicted and charged with having conspired to defraud the United States by causing to be issued at Washington by the Bureau of Statistics for the Department of Agriculture of false cotton crop reports. The court, speaking through Mr. Justice Rurton, in referring to the fact that the indictment did not expressly charge that the conspiracy included any direct pecuniary loss to the United States, said:
“But it is not essential that such a conspiracy shall contemplate a financial loss or that one shall result. The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government. Assuming * * * that this 'statistical side of the Department of Agriculture is the exercise of a function within the purview of the Constitution, it must follow that any conspiracy, which is calculated to obstruct or impair its efficiency and destroy*757 tlie value o.f its operations and reports as fair, impartial, and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation. That it is not essential to charge or prove an actual financial or prop-ertv loss to make a case under the statute has been more than once ruled. Hyde v. Shine, 199 U. S. 62. 81 [25 Sup. Ct. 760, 50 L. Ed. 901; United States v. Keitel, 211 U. S. 370, 394 [29 Sup. Ct. 123, 53 L. Ed. 230]; McGregor v. United States, 134 Ed. 195 [69 C. C. A. 477].”
And see Curley v. United States, 195 U. S. 629, 25 Sup. Ct. 787, 49 L. Ed. 351; Id., 130 Fed. 1, 64 C. C. A. 369; United States v. Morse (C. C.) 161 Fed. 429.
That court has also more than once said that it is important to keep in mind in a case like the present that the character and effect of a conspiracy is not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole. United States v. Patten, 226 U. S. 525, 544, 33 Sup. Ct 141, 57 L. Ed. 333, 44 L. R. A. (N. S.) 325; Montague & Co. v. Rowry, 193 U. S. 38, 45, 46, 24 Sup. Ct. 307, 48 R. Ed. 608; Swift & Co. v. United States, 196 U. S. 375, 386, 387, 25 Sup. Ct. 276, 49 L. Ed. 518. The court has also said that by purposely engaging in a conspiracy which necessarily and directly produces a certain result they are in legal contemplation intending that result. United States v. Patten, 226 U. S. 525, 543, 33 Sup. Ct. 141, 57 L. Ed. 333, 44 L. R. A. (N. S.) 325.
“But, to make an agreement between two or more persons to do an act innocent in itself a criminal conspiracy, it is not enough that it appears that the act which, was the object of the agreement was prohibited. The confederation must be corrupt. * * * The agreement must have been entered into with an evil purpose, as distinguished from the purpose simply to do the act prohibited in ignorance of the prohibition.”
The indictment in that case charged certain officials with conspiracy to violate a statute which enjoined upon them the duty of advertising for such proposals as they might require in their department and in awarding the contracts therefor to the lowest bidder. There was evidence that the defendants did not know of the existence of the statute' making it their duty to advertise; and the court held that persons who agree to do an act innocent in itself, in good faith, and without the use of criminal means, are not converted into conspirators because it turns out that the contemplated act was prohibited by statute.
“Tire gist of the crime of conspiracy consists in a corrupt agreement between two or more individuals to do an unlawful act, unlawful either as a means or as an end. * * The criminal quality resides in the intention of the parties to the agreement, construed in connection with the purpose contemplated. The mere fact that the conspiracy has for its object the doing of an act which may be unlawful, followed by the doing of such act, does not constitute the crime of conspiracy, unless the jury find that the parties were actuated by a criminal intent.”
And the court goes on to say that, although the object of the agreement and the overt act may be unlawful, nevertheless the parties may liave acted under a misconception or in ignorance, without any actual criminal motive in which case the jury should acquit.
Whatever may be the law of the state of New York as to criminal conspiracy, wo are satisfied that as to the statutory crime of conspiracy, as defined in the Criminal Code of the United States, it is not necessary to show that the defendants who are alleged to have conspired to do an act which is only malum prohibitum had knowledge of the unlawfulness of the act. We think that the law was correctly stated in Chadwick v. United States, 141 Fed. 225, 72 C. C. A. 343 (1905), a case in the Circuit Court of Appeals in the Sixth Circuit in which Mr. Justice Lurton, speaking for the court, said:
“The Indictment Is for a statutory conspiracy to violate a penal statute oi the United States. Knowledge that the act which it was the object oi the conspiracy to do would be in violation of the law is imputed and need not be proven. Keither do we understand that in courts of the United Slates the fact that the object of the conspiracy was to do an act which is only mala prohibirá requires evidence of knowledge of the unlawfulness of the act purposed by the conspirators. The conspiracy itself is one created by statute ana is made out by evidence that its object was to perpetrate some offense against the United States.”
And an instruction was sustained which informed the jury that the question of defendant’s knowledge or her ignorance of the acts done being contrary to law—
“is not a fact which you have to consider. The only question for you to pass upon is whether the defendant violated the law; not whether she had any knowledge that she was violating the law.”
“In England it hath always been Rolden that the king is lord of the whole shore, and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm; and therefore, so early as the reign of King John, we find ships seized by the king’s officers for putting in at a place that was not a legal port.”
In the United States the power to regulate commerce with foreign nations and among the several states is vested in Congress, and that body has the right to determine the conditions under which ships, or persons, or merchandise may enter or depart from the ports which it has established, and those conditions must be conformed to: The ship before it leaves port must obtain its “clearance” from the collector of the port. Clearances have a history in the maritime law extending over hundreds of years. A clearance is an important document, even in time of peace. It is particularly so in time of war. It certifies to the fact that a vessel has complied with the law and is au~ thorized to leave port. It contains the name of the master, of the vessel, and of the port to which it is going. It bears an official seal and is a ship’s passport, which entitles-it to go from one end of the sea to the other, except that it cannot, enter a blockaded port. Its regularity is the first thing that is inspected in time of war when the boarding officer of a belligerent vessel boards the ship to determine whether she is on a lawful voyage.
It was essential to the success of the defendants’ undertaking that they should obtain clearance papers which should falsely state that the cargoes were to be carried to certain ports which it was not intended they should reach. The false manifests which were presented, to obtain the clearances were used because it was feared that no clearances would issue if the facts were truthfully disclosed. There was another reason. It was feared that, if they disclosed the facts, the information would not be kept secret, but would in some way become known to the English and French authorities, whose warships would defeat the success of the undertaking. And of course, if the true destination of the ships were disclosed in the clearances, their doom would be sealed if they happened to encounter a hostile ship of war.
The conditions under which a clearance may be obtained are specified in the statute and will be presently referred to. And if any vessel bound to a foreign port departs on her voyage to such foreign port without obtaining a clearance as required, the master or other person having charge of the command of such vessel is liable to a penalty of $500 for every such offense. Section 4197, U. S. Rev. Statutes 1878 (Comp. St. 1916, § 7789). A clearance, as said by Judge Hough in International Mercantile Marine Co. v. Stranahan (C. C.) 155 Fed. 428, 432, “is * * * the gracious permission of the sovereign to depart from a port into which, without like uermission implied from an ‘entry,’ there was no right to come. In the United States this sovereign power is, by the commerce clause of the Constitution, lodged in the federal government, and the privilege of clearance is granted,.
An examination of these provisions discloses that there is no authority to grant a clearance until a manifest is presented to the collector. It shows that it is a criminal offense to leave port without obtaining a clearance. It shows, too, that the master is required to make oath as to “the port or place” his vessel is bound to, and that the manifest must state “the* port” lor which the vessel is bound. It appears, also, that the master and shippers must state “the foreign port or coun
Was the place on the high seas, fixed by latitude and longitude, where the German ships were to be met, a “port,” within the meaning of the act of Congress under consideration? A “port” is defined in the Century Dictionary as follows:
“Specifically, in law, a place wtiere persons and mercliandise are allowed to pass into and out of tlie realm, and at wMcli customs officers are stationed for tlie purpose of inspecting or appraising imported goods. In tfiis sense a port may exist on tlie frontier, where the foreign communication is by land.”
In Carver’s Carriage by Sea it is said that:
“Perhaps it is not possible to give an exact definition of what constitutes a ‘port’ for loading or discharging; but, that a place may be a port, it seems that it should have somewhere for vessels to lie safely, and a shore where goods may be safely landed; also that there should be some conveniences for trade, such as wharves and warehouses, and that it should be a place to which vessels are allowed to come by the government of the country.”
In Packwood v. Walden, 7 Mart. N. S. (La.) 81, 88 (1828), it is said that by the Roman law a port is defined to be “locus conclusus, quo importantur merces, et unde exportantur.” D. 50, 16, 59. The definition in the eighth law, title 33, part 7, is nearly similar to the Roman Digest. That found in the Curia Phillipica, p. 456, No. 35, states a port to be: .
“A place either on the seacoast or on a river, where ships stop for the purpose of loading and unloading, from whence they depart, and where they finish their voyages.”
In Cockey v. Atkinson, 2 Barn. & Aid. 460 (1819), an action was brought upon a policy of insurance upon a vessel “to any port or ports whatsoever and wheresoever.” The court said that they thought the words ought'to be construed the same as if they were “place or places,” and that under them the vessel might lawfully unload or take in goods in an open roadstead. The court added that, if there had been any improper conduct in the master in loading or unloading at a dangerous or unusual place, it might alter the case. But in this case the place was the usual place of loading at the Island of Graciosa.
In Sailing Ship Garston Co. v. Hickie & Co., 15 Q. B. Div. 580 (1855), the meaning of the word “port,” as used in a charter party, was discussed at considerable length, and it appears from what is there said that its meaning may be one thing in a charter party and a different thing in an act of Parliament; that it may have one meaning in a business or commercial sense and another meaning in a fiscal sense. In his opinion Brett, M. R., said:
“Wliat do you go to a port for? Because you want either to load or unload goods. Every one who understands ships knows that you cannot conveniently load or unload goods in a place where the ship xtseli! would be In danger. Therefore all people possessed of common sense, instead of taking their boats onto a beach on an open sea, where they might bo knocked to pieces in a storm, go to what they call a port, which is always a sheltered place. It is a place of safety for the ship and the goods, whilst the goods are being loaded or unloaded. " * The moment you can find that the loading and unloading of ships takes placo at a particular spot, you may safely infer that the parties understood that spot to be within ‘the port,’ because, as a general rule, people do not load or unload goods outside a port. They do sometimes, but very seldom, and only under exceptional circumstances. If, therefore, you can find a place of loading and unloading, you have another ■safo rule.”
And Bowen, L. J., declared it obvious that the word “port” could-—
“not be treated as a term which is capable of any very rigid 'definition. * * ~ We are dealing with a word which has not a fixed sense. If you found in a commercial document that certain acts were to be performed within. the limita of a borough, you would know that the word ‘borough’ is a term which has a fixed sense; but no one has ever defined the word ‘port’ in a fixed sense of that kind. * * Taking all these things together, you must make up your mind in each particular case as to the sense in which ship owners and charterers would be likely to intend to employ the term ‘port’ It becomes really, therefore, a question of fact.”
In Cole v. Union Ins. Co., 12 Gray (Mass.) 501, 519, 74 Am. Dec. 609, a vessel in the open roadstead at the Chincha Islands for the purpose of taking in cargo was held not to be “at sea.” In Gookin v. New England Ins. Co., 12 Gray (Mass.) 501, 506, 74 Am. Dec. 609, a vessel was held to have arrived at “a port of destination” upon her arrival at a similar open roadstead at Ypala for a like purpose. In De Longuemere v. N. Y. Fire Ins. Co., 10 Johns. (N. Y.) 120, the court held that the term “port” might be properly applied to places resorted to and used for the purposes of loading and unloading cargoes, although they were mere open roads, having no harbors.
In Ayer v. Thacher, 3 Mason, 153, 2 Fed. Cas. 269, Judge Story said that in the revenue laws of the United States the terms “port” and “district” are often used as of the same import. And see Hartwell Lumber Co. v. United States (C. C.) 128 Fed. 306. And the Revised Statutes expressly provide that the word “port,” as used in sections 4178 and 4334 (Comp. St. 1916, §§ 7758, 8083), may mean the place where a vessel is built or where one or more of the owners re
From what has been said it appears that the word “port” is a somewhat indefinite term; that its meaning is not exact, but depends upon the connection in which it is used; that it has been employed to designate a place where ships are accustomed to load and unload goods, or to take on and let off passengers, and where persons and merchandise are allowed to' pass into and out of the realm. We find nothing in the cases examined which leads us to believe that a place on the high seas, where ships are not accustomed to stop, or to discharge or to take on cargoes, where vessels cannot anchor, and which is not a place of safety for either ship or goods, can be regarded as a port.
The uncontradicted evidence shows that these defendants under•took to send ships, with cargoes of coal, provisions, and other supplies, from American ports to places on the high seas indicated by the admiralty division of the German government, with the intention of meeting German warships to which the cargoes were then to be transferred. The successful accomplishment of this purpose made it necessary for the defendants to obtain clearance papers for the ships, and to obtain these documents the evidence shows that manifests were presented to the collectors of the ports which stated as “the foreign port or country” in which the cargoes were “truly intended to ■be landed” ports to which the defendants never intended the cargoes should be taken, unless there was a failure of the enterprise for the accomplishment of which the combination was formed.
“That the clearance papers required by the United States statutes to be carried by ships are not required by the laws of the United States to state the destination of cargo; and in the absence of a request to that effect from the master of a ship, such clearance papers need not state the character of the cargo.”
A request to charge may properly be refused which has no relation to any issue which has arisen in the case. Bird v. United States, 187 U. S. 118, 23 Sup. Ct. 42, 47 L. Ed. 100.
“That there is no evidence in this case that any clearance was issued which contained any statement of the nature of any cargo or its destination.”
The issue related to defrauding the United States by presenting false manifests, thereby wrongfully obtaining the clearances. We are concerned with what the manifests contained, rather than with what the clearances contained.
• “Well, I suppose we will have to give them the assistance required by him, and pay the $1,000.”
And Hachmeister said he paid the draft. And there is a letter written by Hachmeister in which he remits $421.75 on behalf of the Hamburg-American Line to the ship chandlers for goods supplied to the Gladstone. It is objected that there is no evidence which establishes that the defendants, or any of them, had exercised any control over the clearance or the subsequent activities of this vessel. And the court was asked to charge:
“That defendants are not chargeable with any of the acts committed by the Gladstone (known also as the Marina Quesada), or any of its officers, and no inference can be drawn against any of the defendants by reason of such acts.”
The request was not granted, and the court in its charge made no reference to the Gladstone, or to the acts of those in charge of her. Of course, the issue was whether the defendants had knowledge of the false clearance of this vessel and were in. any way responsible therefor. It is perfectly certain that she cleared under false master’s and shipper’s manifests, and that Hachmeister supplied her with stores. We think the request to charge was properly refused. It was some evidence, and the weight of it was for the jury to determine.
“That the jury must not draw any inference hostile to these defendants, or any of them, because of the failure by them, or any of them, to produce documents in the p'ossession of the ambassador to the United States of the imperial government.”
The instruction requested related to letters, cables, and other papers embodying the understanding existing between the admiralty division of the German government and the Hamburg-American Line as to the coaling and provisioning of the warships and as to what was done in connection therewith. These papers, it was admitted at the trial, were transferred to the German embassy by the defendant Bunz on July 31, 1914, he having been requested to do so by the embassy when it became known that the matter was attracting public attention. And counsel for defendants stated that not the slightest effort had been made to obtain the consent of the embassy to have the papers brought into court, although the defendant Bunz had been asked by his counsel on his direct examination to state orally some of the contents of the papers, to which counsel for the government duly objected. The District Judge in his original charge made no comment on the failure to produce the papers in court, but counsel for the government in addressing the jury commented unfavorably upon the fact that defendants had not produced the papers nor made any attempt to obtain them. It was this which led to the above request to charge. And at the conclusion of the charge counsel for defendants also requested the court to charge:
“That there was no legal process available to these defendants, or any of them, to compel the production upon this trial of "any documents in the possession or custody of the ambassador of the imperial government to the United States.”
Thereupon the District Judge said:
“Gentlemen of the jury, I will charge that as the law, for the purposes of this case; but you will bear in mind, that the evidence tends to show that these documents were voluntarily turned over to the ambassador, and, as J recall Mr. Wood’s [attorney for the government] argument; it was that no attempt had been made by the defendants to get the documents back. Whatever signiiication that has is for you to determine.”
It may be admitted as a general rule that, in order that an invidious inference may he drawn from the failure to produce a document, the document should be within the control of the party against whom the inference is sought to be drawn. We nevertheless think that, where a party who has in his possession documents which would throw light upon the entire matter, knowing that it is probable that it will be before the courts, voluntarily deposits the documents where international law does not permit the government to reach them, an invidious inference may he drawn from that fact. It is not an unwarranted inference that, if the defendants made no effort to obtain the documents from the German embassy for use upon the trial, it was because they would not have been helpful to their defense. And if the reason why they made no effort to secure them was because the German cipher would have been disclosed, that explanation for their
The case of Graves v. United States, 150 U. S. 118, 14 Sup. Ct. 40, 37 L. Ed. 1021, upon which defendants rely, is inapplicable to the facts of this case. In that case, the defendant being on trial for murder, the district attorney commented on the absence- from the courtroom of tire prisoner’s wife, who had been with him at a time when her husband was seen by a witness for the prosecution. As the wife was an incompetent witness, either for or against her husband, the court held the comment was quite improper, and reversed the judgment of conviction. The rule is elementary that it is improper for counsel to comment on the failure to produce evidence which would not have been competent. Blaisdell v. Davis, 72 Vt. 295, 48 Atl. 14; Shaw v. Gilbert, 111 Wis. 165, 86 N. W. 188. And it is equally improper to comment on the failure of the adverse party to call witnesses where such witnesses are incompetent. Laird v. Laird, 127 Mich. 24, 86 N. W. 436; Wright v. Davis, 72 N. H. 448, 57 Atl. 335. But counsel have the right to comment on the absence of evidence which is in the possession of the opposite party, which should naturally be introduced. Huntsman v. Nichols, 116 Mass. 521; Concord Land & C. Co. v. Clough, 70 N. H. 627, 47 Atl. 704; Whitehead v. Wisconsin Central R. Co., 103 Minn. 13, 114 N. W. 254, 467. And where, as in the instant case, a party puts out of reach documents which were in his possession, which relate to the offense with which he is charged and for the obvious purpose of putting them out of reach, he certainly is not entitled to complain if the court informs the jury that it may determine the significance to be attached to the suspicious conduct. The court was quite right in saying what it did, and saying that counsel had a right to comment on the failure to produce the papers.
There was no error in refusing to charge as follows:
“Even if you should be convinced beyond a reasonable doubt that one or more of the defendants conspired or agreed among themselves or with other persons to present to a collector or collectors of customs manifests which should be false in the particulars described in the indictment, it would be your.duty to acquit the defendants of the crime charged in the indictments unless you were also convinced beyond a reasonable doubt that in entering into this agreement they intended to defraud the United States and. to deceive' the collector or collectors of customs in the manner set forth in the indictments.”
“No inference may be drawn against any of the defendants in this case from the fact that a fine was imposed upon Oapt. Ealkenberg for deviation.”
And there was no error involved in the admission of evidence that Capt. Falkenberg of the Berwind, upon which defendant Poppen-house had sailed as supercargo, had been fined $500 by the ‘customs authorities for making a false' statement in the manifest upon the faith of which he obtained the clearance of his ship, which was one of those chartered for this enterprise, and that the New York & Puerto
The assignment of errors in this case number 191. We have examined them with the care which the importance of the case demands. The most important of them have been specifically considered, but the length of this opinion forbids the specific consideration herein of the others. It must suffice to say that in none of the assignments which learned counsel has brought to this court’s attention do we find any prejudicial error for which the judgment of conviction should be reversed.
Judgment affirmed.
Section 11&7 of the Revised Statutes of the United States 1878, provides that the master or person having the charge or command of any vessel bound to a foreign port shall deliver to the collector of the district from which such vessel is about to depart a manifest of all cargo on board the samo and the value thereof, and shall swear to the truth thereof, whereupon the collector is to grant a clearance for such vessel and her cargo. And it provides that “if any vessel bound to a foreign port departs on her voyage to such foreign port without delivering such manifest and obtaining a clearance, as hereby required, the master or other person having the charge or command of such vessel shall be liable to a penalty of five hundred dollars for every such offense.”
Then section 4198 of the Revised Statutes (Comp. St. 1916, § 7790) provides as to the oath of the master or commander of the vessel and declares it shall be as follows:
“District of I (insert the name), master or commander of the (insert the denomination and name of the vessel), bound from the port of (insert the name of the port or place sailing from) to (insert the name of the port or place bound to, etc.),” etc.
And section 4199 of the Revised Statutes (Comp. St. 1910, § 7791) provides as follows:
"Form, of Manifest. The form of the report and manifest to be delivered to the collector shall be as follows: Report and manifest of the cargo laden at the port of , on board the master, bound for port,” etc.
And section 4200 of the Revised Statutes (Comp. St. 1810, § 7792) provides as follows:
“Manifest of Shippers. Before a clearance shall be granted for any vessel bound to a foreign port, the owners, shippers, or consignors of the cargo of such vessel shall deliver to the collector manifests of the cargo, or the parts thereof shipped by them respectively, and shall verify the same by oath. * * * And before a clearance shall be granted for any such vessel, the master of that vessel, and the owners, shippers, and consignors of the cargo, shall state, upon oath, to the collector, the foreign port or country in which such cargo is truly intended to be landed. The oaths shall be taken and subscribed in writing.”
And section 4201 of the Revised Statutes (Comp. St. 1916, § 7798) provides as follows:
“Form of Glearanee. The form of a clearance, to be granted to a ship or vessel on her departure to a foreign port or place, shall be as follows':
ss.: “District of ). ‘Tort of j
“These are to certify all of whom it doth concern, that , master or commander of the , burden tons, or thereabouts, mounted with guns, navigated with men, bull!, and bound for having on board , hath hero entered and cleared Ids said vessel according to law.
“Given tinder our hands and seals, at the custom-house of , this day of ' , one thousand , and in the year of the Independence of the United States of America.”