266 F. 326 | 2d Cir. | 1920
Lead Opinion
The defendant in error has asked for, and has been granted, a reargument on this writ of error, appealing
The first indictment, filed April 23, 1918, charged the plaintiffs in error with a violation of the Act of February 9, 1909, as amended by the Act of January 17, 1914 (section 8374, Barnes’ Federal Code, 35 Stat. 614, 38 Stat. 275 [Comp. St. §§ 8800—88011]), concealing smoking opium. This statute makes it an offense, after April 1, 1909, to import into the United States opium in any form, or any preparation or derivative thereof, providing that the opium, or preparation or derivative thereof, other than smoking opium or opium prepared for smoking, may be imported for medicinal purposes, and this only under regulations which the Secretary of the Treasury is authorized to prescribe. When so imported, it is subject to the duties which are or may thereafter be imposed by law.
In the second indictment, filed June 26, 1918, under which the plaintiffs in error have been convicted, they are charged with manufacturing smoking opium in violation of the Act of January 17, 1914 (38 Stat. 277 [Comp. St. §§ 6287a-6287f]). This indictment consists of three counts. The first count charges engaging in the manufacture of smoking opium when the plaintiffs in error were not citizens of the United States; the second count charges that the plaintiffs in error were engaged in manufacturing smoking opium without giving a bond required by the Commissioner of Internal Revenue; .and the third c.ouut charges the manufacture of opium without keeping books, and rendering returns of the materials and products, as required by-the Commissioner of Internal Revenue. After conviction, the plaintiffs in error were sentenced, under the first indictment, to two years in the Maryland prison, and, under the second indictment, to pay a fine of $10,000 on *he first, second, and third counts, making a total of $30,000. They thereafter sued out this writ of error.
The plaintiffs in error were found in a room on the sixth floor of No. 25 Pell street, New York City, on the night of April 3, 1918. A police officer came to the door,- which was opened by Toy. In his hand at the time was a tin of smoking opium. The plaintiff in error Cip was seated at a table in the room rolling opium toys in packages. The testimony is-that his hand smelled of the odor of opium. On the table were 124 toys containing smoking opium. The officer found a wash basin containing a quantity of gum opium in the room. He placed this opium in four bottles. There were some other receptacles containing smoking opium and a quantity of yen slice, and some empty receptacles and small tin cans which had contained opium. A metal needle, three knives,'a wooden stock, a copper funnel, a basin, a small gas stove and tubing, and a weighing scale were also found. The room
“Every person who prepares opium suitable for smoking purposes from crude gum opium, or from any preparation thereof, or from the residue of smoked or partially smoked opium, commonly known as yen shee, or from any mixture of the above, or any of them, shall be regarded as a manufacturer of smoking opium within the meaning of this act.” 38 Stat. 277, c. 10 (Comp. St. § 6287a).
Under the facts above disclosed, a jury was justified in saying that the plaintiffs in error were preparing smoking opium, or opium suitable for smoking, when they were detected. It appears from the statute quoted that the manufacture of smoking opium may consist of admixing yen shee with other smoking opium, or it may consist of any other preparation of crude gum opium. One who thus mixes these ingredients becomes a manufacturer of smoking opium, and it is thus evident that the same smoking opium may be the subject of more than one preparation for smoking purposes. As before related, the plaintiffs in error, when arrested, were found to have crude gum opium, also smoking opium and yen shee. It was evident, from what was found in the room and all the surrounding circumstances, that the plaintiffs in error were engaged in mixing these ingredients. Thus the jury could say they were engaged in the manufacture, as prohibited by the statute.
The first count of the indictment charges concealment of smoking opium. Since the manufacture was unlawful, the plaintiffs in error, by the same acts and course of conduct, did conceal yen shee and the other ingredients which went to make up their smoking opium, and which they used in their process, and thus were not only guilty of the crime of concealing smoking opium, but also of the crime of manufacturing smoking opium. The jury was justified in finding this from all appearances. Because of this manufacturing statute, to which our attention has been called on the reargument (the act of January 17, 1914), we are of the opinion that the indictments were properly consolidated and tried together. Several charges against the plaintiffs in
“Penalty for Unlawful Importation — Possession a.s Evidence. — -If any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any opium or any preparation or derivative thereof contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such opium or preparation or derivative thereof after importation, knowing the same to have been imported contrary to law, such opium or preparation or derivative thereof shall be forfeited and shall be destroyed, and the offender shall be fined in any sum not exceeding $5,000 nor less than $50 or by imprisonment for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to tiave or to have had, possession of such opium or preparation or derivative thereof, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satis taction of the jury.” Comp. St. § 8801.
The court below, in the charge to the jury, stated that—
“There is a presumption of law that any smoking opium found in the United States after July 1, 1013, will be presumed to have been imported into the United States after April 1, 1909.”
The act of January 17, 1914 (38 Stat. 275), prohibits the importation of smoking opium without exception after April 1, 1909. Section 2 makes it unlawful to receive or conceal imported opium after importation, knowing it to have been imported, contrary to law. It provides that possession of imported opium shall be deemed sufficient evidence to warrant conviction, unless the defendant explains the possession to the satisfaction of the jury. Section 3 (Comp. Stat. 1916, § 8801a) provides that after July 1, 1913, all smoking opium within the United States is presumed to have been imported after April 1, 1909, and hence contrary to law, and the burden is upon the accused to rebut the presumption. Ng Choy Fong v. United States, 245 Fed. 305, 157 C. C. A. 497; Id., 245 U. S. 669, 38 Sup. Ct. 190, 62 L. Ed. 539; Gee Woe v. United States, 250 Fed. 428, 162 C. C. A. 498; Id., 248 U. S. 562, 39 Sup. Ct. 8, 63 U Ed. 422; United States v. Yee Fing (D. C.) 222 Fed. 156; United States v. Johnson (D. C.) 228 Fed. 251.
The act of February 9, 1909 (chapter 100, § 2, 35 Stat. 614), provides that—
“Whenever, on trial for a violation of this section, the defendant is shown to have, or to have had, possession of such opium or preparation or derivative thereof, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury.” Comp. St. § 8801.
The defendant in error relies upon this presumption. It submits proof of the fact that opium was found in possession of the plaintiffs in error. The illegal importation is established by the presumption thereof from showing such possession. Luria v. United States, 231 U. S. 9, 34 Sup. Ct. 10, 58 L. Ed. 101. A presumption of one fact
“Neither of the said defendants at tlífPtime and place aforesaid being a citizen of the United States,” and “did engage in the manufacture of smoking opium without giving the bond required by the Commissioner of Internal Revenue.”
Section 2 covers the third count, which charges:
“Did engage in the manufacture óf smoking opium without keeping books and rendering returns of the material and products, as required by the regulations of .the Commissioner of Internal Revenue.”
We are of the opinion that there is a minimum fine of $10,000 for every violation of the section and this does not permit the imposition of two minimum fines for violating the same section in two different ways. We think that a fine of $10,000 should be imposed for guilt as found in the first and second counts of the indictment, and $10,000 for guilt as found and as charged in the third count.
Judgment of conviction as to the first indictment is affirmed and as to the second is modified, making a total fine of $20,000.
Dissenting Opinion
(dissenting).- I dissent from the opinion of the court as to the indictment for concealing imported smoking opium' under Act Jan. 17, 1914, § 3. The judicial power of the United States is defined by section 2, art. 3, of the Constitution as follows:
*331 “The judicial power shall extend to all cases, in law and equity, arising Tinder this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all eases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects.”
The authority of Congress to enact the law is derived from its constitutional power to regulate foreign commerce. But opium can be and has been produced in the United States, and may in the future he produced commercially. Congress has no power to enact this law as to such opium. The remarks of Mr. Justice Holmes in United States v. Jim Fuey Moy, 241 U. S. 394, 36 Sup. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854, are very applicable to this situation.
The jurisdiction of the federal courts is not presume^, but must he pleaded and proved, and I think it cannot be proved by a statutory presumption. Could Congress by a general statute establish jurisdiction in all cases brought in federal courts, unless the presumption of jurisdiction were rebutted by the defendant; or, to put a specific case, the Constitution having limited jurisdiction to suits between citizens of different states, could Congress establish jurisdiction by presumption, unless the defendant rebutted the presumption? If the defendant put the jurisdiction in issue, and there was no proof of the fact at the trial, other than the presumption, it seems to me the judgment would be invalid.