128 F. 615 | U.S. Circuit Court for the District of Southern New York | 1904
The indictment charges that “on and before the 30th day of July, 1901,” Rosenthal, Cohn, Browne, and others to the jurors unknown, conspired to defraud the United States of duties that should be paid upon goods imported from foreign countries by Abraham S. Rosenthal and Martin R. Cohn, and that such conspiracy was to be effected by Rosenthal and Cohn causing the goods to be shipped from foreign countries, consigned to A. S. Rosenthal & Co., at the port of New York, upon consular invoices containing,, and known to them to contain, false statements as to weight; and that they should make their written estimated entries at the custom house at the’port of New York upon such invoices, whereupon Browne,'the examiner in the appraiser’s department, should neglect and refuse to ascertain the true weight and nature of such part of the said goods as should be designated and sent to the public stores for examination, and should knowingly make false returns and reports upon the invoices as to the weight and nature of the goods, to the end that the estimated entries and the duties upon the same should be liquidated by the collector upon such returns and reports, and less than the amounts of duty legally due thereon collected. The indictment charged five overt acts, three of which were entries madé by Rosenthal and Cohn, and two of which were the passing of goods by Browne in the manner charged.
After numerous motions, demurrers, and pleas not involving the merits,' the action was brought to trial on January 22d, pursuant to an order of the court made at a previous term, and, upon Rosenthal failing to appear, the trial was severed as to him, and the jury impaneled as to the other defendants. Some days were taken in the selection of a jury, and thereupon the trial continued to February 20th, when the jury rendered a verdict that Cohn and Browne were each guilty, and strongly recommended the former tó the mercy of the court. Each defendant moved for a new trial, and after full discussion and consideration of the carefully prepared briefs of the parties it is concluded that a new trial should' be granted to Cohn and denied to Browne. The evidence amply justified the finding of the jury that some persons, in behalf of A. S. Rosenthal & Co., for several months after about January 1, 1901, were importing goods and entering them
It remains to point out with some particularity the reasons for the decision that the evidence concerning Cohn was insufficient to justify the verdict of guilty rendered against him. It is a delicate judicial function to supervise, and, if need be, set aside, the finding of a jury of such marked excellence in intelligence and unabated attention as the jurors in the case possessed and observed. But not even a proper concern for governmental interests, or the public welfare, or for a sturdy enforcement of the law, warrants the maintenance of a verdict that is unsupported by sufficient evidence of guilty connection with the crime charged. It is not a mere connection with the btxsiness of the importing firm involved, nor relation to some acts that the law required to be done in the course of passing goods throug-h the custom house, that is demanded. Such connection must exist, and such relation of some person representing the importers in due course o:f business must arise, even if the importations were legitimate. It must inevitably appear that such connection was used, or such relation assumed, for the purpose of subserving the conspiracy.
■ What was Cohn’s connection with the business of A. S. Rosenthal & Co., and with the transactions upon which the charge is predicated? What was the firm of A. S. Rosenthal & Co.? Who were the partners? What was and what had been Cohn’s relations to the firm? What did he specifically do respecting the fraudulent" invoices ? What opportunity did he have to know of the same ? What presumption of knowledge of the nature of such invoices existed, from which the jurjr could draw inferences unfavorable to him? The firm of A. S. Rosenthal & Co. was established in business in New York at some time before the year 1892, and was engaged in the purchase and sale of Japanese silks, handkerchiefs, lambrequins, table covers, and taffetas. The firm’s name was changed in 1898 to that of A. S. Rosenthal & Freed, the latter having been for some years a partner. Cohn, who had previously been engaged in business in the far West as salesman for-different houses'located there, came to New York in 1892, and after a time was employed by A. S. Rosenthal & Co. to sell goods in the city of New York. After two years he added to his duties of salesman the further care of creating or devising the styles or patterns of goods that should at times be shown in goods manufactured for the firm- or purchased by it. For the first year he received a salary
“We would have an absolutely perfect ease against both Cohn and Browne if you strike every bit of that evidence out of the case.. And, moreover, I say to you that if there were no other evidence against these men than that particularly, they never would have been prosecuted. That evidence — and I will proceed to discuss its value in a moment — that evidence is offered here as corroborative evidence to establish irresistibly the inference tó be drawn from the other facts that have been proven against these people, from the English Coles shipments, from the kailci invoices that were always under-weighted, from the substituted invoices. These are the salient points of the evidence for the prosecution, and the so-called swatch (sample) testimony is introduced to corroborate the other testimony, and to strengthen the inferences to be derived from it.”
The remaining invoice passed upon by Browne was dated March 18th, entry was made thereon March 28th, and was passed by Browne
So much for entries made by Cohn before Browne’s suspension on July 30th. The entries made thereafter are unimportant upon the question now under discussion, inasmuch as any entry made after Browne was suspended could not have been in furtherance of the conspiracy. The question now arises whether the mere fact that Cohn made such entries of itself is any evidence of his guilty connection with the fraudulent scheme. Had these entries been made by a partner in charge of the purchasing department, or if it had appeared that such partner had been connected with the importations — for instance, those from London — the fact of such person taking part in the entry would have been strong supplemental evidence of guilty participation in the conspiracy. But such conclusion would have found its necessary support in the earlier evidence of actual or presumed knowledge of • the transactions with which the offenses' were connected. While the jury must have inferred that Rosenthal, Beechenor, Godchaux, or all of such persons, had such knowledge, yet there is no specific evidence as regards Cohn; nor does it appear that he was in a position where he would be likely to obtain such knowledge. Therefore the fact that
In this connection it must be observed that before these entries signed by Cohn were- received in evidence, the counsel for the government and for the defendants had made the following stipulation:
“Counsel for the government admit that all such signatures to entries and declarations were placed on said paper in blank, and that said paxiers, so signed in blank, were sent to M. J. Corbett & Co.; that all the writing in said entries and declarations was placed afterwards thereon by George Brautigan, a clerk In M. J. Corbett & Co.’s office; and that none of said papers were seen by said Cohn, after signing them in blank, until.more than a year after the said entries were made in the- custom house, and that said Cohn had no knowledge how said papers were,,ailed to by Brautigan.”
The customs administrative act (section 5, Act June 10, 1890, c. 407, 26 Stat. 132 [U. S. Comp. St. 1901, p. 1889].) provides that the declarant shall state that he is “the owner of the merchandise described in the annexed entry and invoice,” that the declaration shall describe the ship in which the importation was made, and that the declarant shall state “that the invoice and entry which I now produce contain a just and faithful account of the actual cost of the said goods,” etc. This provision seems to make the invoice a part of the declaration, so as to bring it yvithin the terms of the stipulation. Hence it must be accepted as a fact that Cohn did not know how the declaration was filled in, nor what invoice was attached to and made a part thereof. This deprives his act in signing the entry blank of any significance as bearing upon his complicity in the conspiracy. But assume that the blank had been filled, the invoice annexed, and Cohn had signed and duly declared before the proper officer. What would the act signify as showing his guilty connection with the conspiracy ? He would he doing the precise thing which he would have a right to do, and which the law required him to do in the case of an honest importation. Hence; as already stated, the act of making the entries in itself counts for nothing. Nobody claims that an inspection of the invoices would discover the fraud without an examination of the goods to which they were related. Hence, unless Cohn had some antecedent knowledge of the fraudulent practices, he is not incriminated by his immediate connection with the entries.
Upon the motion for a new trial the learned counsel for the government is understood to have admitted orally that substantially the only evidence connecting Colin with the conspiracy was to be found in the fact of his relation to the firm of A. S. Rosenthal & Co., and his duties in the business of such firm. While this seems to very much narrow the evidence against Cohn, yet, after a most careful consideration of the evidence, it is thought that counsel brought the discussion to the very essential and crucial point of the inquiry. The argument against Cohn may be stated as follows: Colin was at the head of the selling department. He knew, and aided in fixing the prices of goods. To do this he must have known the cost of the goods, and therefore he must have known the factors that entered into the cost, one of which was the duty paid upon them; and thereby learned, if he had not obtained notice or information from other sources, that there was a fraudulent scheme for depriving the government of its proper duties. Moreover, as a partner, he coukl not but have known of the large savings of duty and of disbursements to corrupt the examiners, It is a rule in criminal cases that a partner is not charged by the criminal acts of his copartners, or others acting in behalf of the firm, unless lie has knowledge thereof. The law in relation to partnership is that the partner agrees to be hound for all acts done in obedience to the law, to which there are attached certain civil liabilities for
So far as fixing prices is concerned, the evidence shows that Rosen-thal, and the men immediately under him in charge of the office, the head salesman, and Cohn, participated, taking into consideration, among other things, undoubtedly, the prices for which the goods would
The government also gives evidence of certain acts of Cohn after the 30th day of July, when the conspiracy became practically ineffective. Before that time, on the 16th or 17th of July, he had been to the appraiser’s department for the first time, and then only for the purpose of finding whether certain goods which, contrary to the rule, had been delivered to A. S. Rosenthal & Co. for consumption, must be returned to the appraiser’s department, or might be released. The defendants’ counsel urges that, inasmuch as he refused to allow the goods to be opened or used before the full rules of the custom house had been complied with, it showed a fidelity on his part tending to acquit him of any indirection; while the government contends that there was some error in the shipment unfavorable to the firm, entirely disconnected with the conspiracy, that showed that he had a selfish purpose in having the goods sent back to the appraiser’s department. But, whatever his motive, it was plainly not a guilty one, and has no significance in that regard.
After the 30th day of July there were certain goods afloat, shipped from Yokohama, and on August 13th these goods were reconsulated upon substituted invoices, whereon entries were made at this port between October 17th and 29th, by Cohn, in the manner above stated. It is contended that the reconsulation of these goods after the conspiracy was discovered shows an attempt to conceal the misrepresentation of weight in the original invoices, and that this in some way affects Cohn. There is not the slightest evidence that he had any connection with the substitution of these invoices, and, even if he had, it would be quite consistent with integrity that an honest partner, having discovered a fraud, should insist, as far as possible, that the fraudulent invoices be not used, but that invoices, so far as possible correcting the false invoices, be substituted in place thereof, and that the custom house authorities should be informed that additions should be made for weight and value. The same may be said of the Lyons substitutes. These entries were all made and passed through the custom house after October 17th, and it would be more than unreasonable to presume that Cohn, or any other person, was attempting to defraud the government at that late date. The most that can be claimed for these
Upon the authority of Regina v. Gompertz, 6 Pa. Law J. 377, Commonwealth v. McGowan, 2 Pars. Eq. Cas. 341, and Dutcher v. State, 16 Neb. 30, 19 N. W. 612, it is urged by counsel for Browne that a new trial for Cofan must result in a new trial for Browne. These cases, do not seem in point. Cohn is granted a new trial because no cause of action was proved against him, and the indictment should have been dismissed as to him by the court. Had such dismissal been ordered, nevertheless Browne’s case could have been submitted to the jury.