BRUNO v. UNITED STATES, 289 F. 649

BINGHAM, Circuit Judge. The plaintiff in error, Eilippo Bruno, hereinafter called the defendant, was indicted with five other persons in the District Court of the United States for the District of Massachusetts. The indictment contained three counts. Bruno and four of the defendants pleaded not guilty. The other defendant was not arrested or arraigned. A trial was had before a jury, and a general verdict of guilty was returned against Bruno, Amero, and Tony Car-bone. The other two defendants were discharged. Amero and Tony Carbone were each sentenced to pay a fine of $500.

Bruno was sentenced to pay a fine of $2,000 and be imprisoned in the House of Correction at Plymouth, Mass., for the term of four months. The first count was brought under

section 3082 of Revised Statutes (Comp. St. § 5785), and charged that the defendants, between the 22d and 28th days of December, 1921, unlawfully imported and brought, and unlawfully assisted in importing and bringing, into the United States, at or near Boston and Plymouth, in the District of Massachusetts, from a foreign port (the island of Miquelon and St.

Pierre), certain merchandise, to wit, about 2,200 gallons of alcohol, of the value of about $7,000, contrary to law, in that they had imported and brought the liquors into the United States and unladen and delivered them within the United States without a permit for the importation of said merchandise, without a permit for its unloading and delivery, without payng the lawful customs duty thereon, and without a manifest as required by law, and contrary to sections 2806, 2807, 2808, 2809, and 2872 of the Revised Statutes (Comp. St. §§ 5503-5506, 5563), and

section 3 of title 2 of the Act of October 28, 1919, entitled the National Prohibition Act (41 Stat. 305). ¡ The only material difference between the first and second counts is that in the first the Golden West is named as the vessel in which the merchandise was transported from said islands to the point or points off the coast of the Massachusetts district, whereas in the second count the name of the vessel by which the merchandise was so transported was omitted. The third count was brought under

section 37 of the Criminal Code (Comp. St. § 10201), and charged that Bruno and the other defendants^ during the months of November and December, 1921, in said district and elsewhere did willfully and feloniously conspire together and— “with one J. B. Legasse and a certain Italian called Jim, and with divers other persons, * * * to commit certain offenses against the United States, to wit, to violate sections 2806, 2807, 2808, 2809, and 2872 of the Revised Statutes, and

section 3 of title 2 of the Act of October 28, 1919, entitled the National Prohibition Act in this: “That it was the purpose and object of the said conspiracy * * * to bring and cause to be brought certain merchandise, to wit, alcohol and other intoxicating liquors, from the island of Miquelon and St.

Pierre, of the republic of France, in a schooner, called the Golden West, to Massachusetts Bay, off the coast of the said district,” and thence by other vessels to secretly and clandestinely import and cause to be imported 'said merchandise into the Massachusetts district, to secretly and clandestinely unlade and deliver, and cause it there to be unladen and delivered, without a permit as required by law for its importation, and without a permit as required by law for its-unlading and delivery, and without paying the lawful customs duty thereon, and without a manifest as required by law.

It then set out certain overt acts done in furtherance of the conspiracy.. As counts 1 and 2 are based upon

section 3082, the position of the government is that sections 2806, 2807, 2808, 2809, 2872 of the Revised Statutes, and

section 3, title 2, of the Act of October 28, 1919, recited in said counts, define the acts relied upon as “contrary to law,” within the meaning of that phrase as used in

section 3082. Keck v. United States, 172 U. S. 434, 437, 19 Sup. Ct. 254, 43 L. Ed.

Section 3082 (Comp. St. § 5785) reads as follows: “If any person shall fraudulently or knowingly import or bring into the United States, or assist, in so doing, any merchandise, contrary to law, * * * such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both.”

Section 2806 (Comp. St. § 5503) provides: “No> merchandise shall be brought into the United States, from any foreign port, in any vessel unless the master has on board manifests in writing of the cargo, signed by such master.”

Section 2807 (Comp. St. § 5504) prescribes what every manifest ' required by the preceding

section shall contain.

Section 2808 (Comp. St. § 5505) provides: “If merchandise shall be imported, destined to be delivered in different districts or ports, the quantities and packages so destined to be delivered shall be inserted in successive order in the manifest; and all spirits and wines constituting the whole or any part of the cargo of any vessel shall also be inserted in successive order, distinguishing the ports to which the same may be destined, and the kinds, qualities, and quantites thereof.”

Section 2809 (Comp. St. § 5506) provides: “If any merchandise is brought into the United States in any vessel whatever from any foreign port without having such a manifest on board, or which shall not be included or described in the manifest, or shall not agree therewith, the master shall be liable to a penalty equal to the value of such merchandise not included in such manifest; and all such merchandise not included in the manifest belonging or consigned to the master, mate, officers tor crew of siich vessel shall be forfeited.”

Section 2872 (Comp. St. § 5563) provides : “Except as authorized by the preceding section, no merchandise brought in any vessel from any foreign port shall be unladen or delivered from such vessel within the United States but in open day—that is to say, between the rising and setting of the sun—except by special license from the collector of the port, and naval officer of the same, where there is one, for that purpose, nor at any time without a permit from the collector, and naval officer, if any, for such unlading or delivery.”

Section 3 of title 2 of the National Prohibition Act provides: “No person shall on or after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented. “Liquor for nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished and possessed, but only as herein provided, and the commissioner may, upon application, issue permits therefor,” etc.

Section 29 of title 2 of the National Prohibition Act provides: “Any person who manufactures or sells liquor in, violation of this title shall for a first offense be fined not more than $1,000, or imprisoned not exceeding six months, and for a second or subsequent offense shall be fined not less than $200 nor more than $2,000 and be imprisoned not less than one month-nor more than five years. “Any person violating the provisions of any permit, or who makes any false record, report, or affidavit required by this title, or violates any of the provisions of this title, for which offense a special penalty is not prescribed, shall be fined for a first offense not more than $500; for a second offense not less than $100 nor more than $1,000, or be imprisoned not more than ninety days; for any subsequent offense he shall be fined not less than $500 and be imprisoned not less than three months nor more than two years,” etc.

It is contended by the defendant that, since the enactment of the National Prohibition Act, the- importation of liquor for beverage purposes is absolutely prohibited and that its importation for nonbeverage and sacramental purposes is forbidden, except as in the act provided and upon a permit obtained from the Commissioner of Internal Revenue, that, as intoxicating liquors for beverage purposes, and for non-beverage and sacramental purposes where no permit has been obtained, are excluded from importation, they are not now merchandise within the meaning of our customs laws, and particularly the sections set out in counts 1 and 2 of the indictment.

In the same connection he further contends that sections 3 and 29 of title 2 of the National Prohibition Act supersede sections 2806, 2807, 2808, 2809, 2872, and 3082 in respect to intoxicating liquors imported in violation of law, and that therefore the defendant could not be legally convicted on either of tire first two counts. We think the first contention cannot be sustained, as we regard intoxicating liquors, whether intended for beverage, nonbeverage or sacramental purposes, as merchandise within the meaning of the sections of the customs laws above enumerated.

Section 2766 of the Revised Statutes (Comp. St. § 5462), in defining the word “merchandise” as used in the customs laws, says: “The word ‘merchandise,’ as nsed in this title, may include goods, wares, and chattels of every description capable of being imported.” And this provision, as construed by the federal courts since the enactment of the federal Prohibition Act, has been held to embrace intoxicating liquors, even though their importation is prohibited. United States v. Santini (C. C. A.) 279 Fed. 534; United States v. Bengochea (C. C. A.) 279 Fed. 537.

Were sections 2806, 2807, 2808, 2809, 2872, and 3082 superseded by sections 3 and 29 of title 2 of the National Prohibition Act in respect to intoxicating liquors imported for beverage purposes, or for nónbeverage or sacramental purposes without a permit, so that the defendant'could not be legally convicted on either of the first two counts ? Whether the liquors- in question were brought into the country for beverage purposes, or for nonbeverage or sacramental purposes without a permit, their importation was a violation of

section 3 of title 2 of the National Prohibition Act, which would subject'an offender to a fine of not more than $500 for a first offense. See

section 29. Under

section 3082 of the customs laws a fine not exceeding $5,000, or imprisonment no exceeding two years, or both, could be imposed, and the defendant in this case was in fact sentenced to pay a fine of $2,000 and be imprisoned for a term of four months. In view of the legislation of Congress on this subject, we have little difficulty in reaching the conclusiort that sections 3 and 29 of title 2 superseded the sections .of the customs laws here in question in respect to the importation of ' intoxicating liquors for beverage purposes, or for nonbeverage and 'sacramental purposes without a permit, as it is unreasonable to suppose, that Congress could have intended that an offender against

section 3 (the later’ law) should’be'punished for practically the same acts under the provisions of

section 3082, which authorizes the imposition of a greater-punishment than.that provided by

section 29. And such was the conclusion of the Supreme Court in United States v. Yuginovich, 256 U. S. 450, 41 Sup. Ct. 551, 65 L. Ed. 1043, where sections 3247, 3279, 3281, and 3282 of the Revised Statutes, being provisions of the internal .revenue laws relating to the manufacture and sale of intoxicating liquor and imposing a punishment greater than that imposed by title 2, were under consideration. It was there said: “It is, of course, settled that repeals by implication are not favored. It is equally well settled that a later statute repeals former ones when clearly inconsistent with the earlier enactments.

United States v. Tynen, 11 Wall. 88. In construing penal statutes, it is the rule that later enactments repeal former ones, practically covering the same acts, but fixing a lesser penalty. The concluding phrase of

section 35, by itself considered, is strong- , ly indicative of an. intention to retain the old laws. But this

section must be interpreted in view of the constitutional provision contained in the -Eighteenth Amendment, and in view of the provisions of the Volstead Act intended to make that amendment effective. * * * We agree with the court below that, while Congress manifested an intention to tax liquors illegally as well as those legally produced, which was within its constitutional power, it did not intend to preserve the old penalties prescribed in

section 3257 in addition to the specific provision for punishment made in the Volstead Act.” After United States v.

Yuginovich was decided, Congress,,on November 23, 1921, enacted the following provision of law: “All laws in regard to tlie manufacture and taxation of and traffic in intoxicating liquor, and all penalties for violations of such laws that were in force when the National Prohibition Act was enacted, shall be and continue in force, as ta both beverage and nonbeverage liquors, except such provisions of such laws as are directly in conflict with any provision of the National Prohibition Act or of this act; but if any act is a violation of any of such laws and also of the National Prohibition Act or of this act, a conviction for such act or offense under one shall be a bar to prosecution therefor under the other.” 42 Stat. at Large, c. 134, § 5, pp. 222, 223.

Since the enactment of

section 5 on November 23, 1921, indictments based on violations of sections 3281 and 3282, Rev. St. (Comp. St. §§ 6021, 6022), as well as other sections of the internal revenue laws relating to the manufacture and taxation of intoxicating liquors, have been before the Supreme Court in the case of United States v. Stafoff, 43 Sup. Ct. 197, 67 L. Ed. -, decided January 2, 1923, in which it was held (1) that the decision in United States v. Yuginovich must stand for the law before November 23, 1921, the date of the enactment of

section 5 of

chapter 134; and (2) that since that time the Act of November 23, 1921, has “the same operation as if, instead of saying that the laws referred to shall continue in force, it had enacted them in terms,” and that “for offenses committed after the new law, United States v.

Yuginovich cannot be relied upon.” If the sections of the customs laws upon which counts 1 and 2 are based in part related to the manufacture and sale of intoxicating liquor, as did those considered by the Supreme Court in the two cases above named, there could be no doubt that the Act of November 23, 1921, reinstated those sections and left it open to the government to prosecute the defendant either under the customs laws or under the National Prohibition Act, but not under both for the same act. United States v. Stafoff, supra; 42 Stat. at Large, c. 134, § 5.

It remains for us to consider whether the sections of the customs laws upon which counts 1 and 2 are based in part were reinstated by the Act of November 23, 1921, to the extent that they were superseded by the Prohibition Act, and in particular whether sections 2806, 2807, 2808, 2809, 2871, and 3082, of those laws, are laws relating to “the manufacture and taxation of and traffic in intoxicating liquor,” within the meaning of the Act of November 23, 1921.

They surely have nothing to do with the manufacture or taxation of intoxicating liquor, and unless they relate to traffic in it they cannot be said to be within the contemplation of the language of the act. Traffic, as defined in Webster’s Dictionary, is “commerce, either by barter or by buying and selling; interchange of goods or commodities; trade.” In other words, it means “to pass goods or commodities from one person to another for an equivalent in goods or money.” Levine v. State, 35 Tex. Cr. R. 647, 649, 34 S. W. 969, 970; 38 Cyc. 934.

As the provisions of the customs laws enumerated in counts 1 and 2, which we are considering, relate to the importation of and the collection of duties on commodities, without regard to their sale or exchange for an equivalent —the essential element of traffic—we are of the opinion that these provisions of law were not reinstated by the Act of November 23, 1921. It is further to he borne in mind that counts 1 and 2 of the indictment are not based simply upon

section 3082 and sections 2806, 2807, 2808, 2809, and .2872 of the Revised Statutes, but upon

section 3 of title 2 of the -National Prohibition Act as well, and that if the defendant was found guilty of violating all or any of these provisions of law the sentence that was imposed upon him under the first two counts must have been under

section 3082. It is evident that the infractions of law denounced ih

section 3082 as “contrary to law” áre those defined in the provisions of the customs laws (U. S. v. McKenzie [D. C.] 283 Fed. 667, 668), not those defined in the National Prohibition Act, and that, if the defendant was found guilty under the first two counts of violating

section 3 of title 2 of the Prohibition Act, such violation was not an infraction of

section 3082. It is also evident that the punishment provided for a violation of

section 3' of title 2 is found in

section 29 of that title, and is less than that provided in

section 3082. It follows that the defendant could not lawfully be tried and sentenced under counts 1 and 2 for a violation of

section 3, as a violation of that

section is not

an act denounced by

section 3082, and the punishment provided for such violation in

section 29 is less than that provided in

section 3082. We therefore regard the first two counts as bad. Although we regard the third count as good, in so far as it charges a conspiracy to violate the National Prohibition Act, we are of the opinion that the verdict and judgment cannot be sustained as based upon that count.

While, as a rule, where a verdict is general, the presumption is that the jury were instructed to pass upon all the counts and base their verdict thereon, the situation here is such that this presumption cannot be indulged; for, as hereafter pointed out, the jury were instructed that they might return a general verdict based on any of the counts, even though they did not find the defendant guilty on the others. In Commonwealth v. Boston & Maine Railroad, 133 Mass. 383, the case was submitted to the jury upon the third and fourth counts of an indictment and a general verdict of guilty was returned.

The trial court instructed the jury that if they should find, upon either one of the two counts, that the commonwealth had sustained the burden which was upon it, they should return a general verdict of guilty, and the defendant excepted!

In the Supreme Court it was held that the third count was bad and the fourth good; that, in view of the instructions excepted to, it resulted— “that the verdict may have been rendered upon proof of facts charged in the third count, which would not be sufficient to support the fourth count; and so, the third count being now found to be bad, the verdict may have been rendered upon proof of facts not charged in, nor admissible in evidence under, the fourth count, which alone was good.” It was there said: “It is contended, on the part of the commonwealth, that the practice as adopted in Massachusetts requires, or at least sanctions, the submission of the several counts of an indictment for one offense to the jury in this form. - “It cannot he doubted that the two counts under consideration are for the same offense. * * * The difference in the details of the negligence charged does not have the effect to show that two offenses are charged.

And it is no doubt a general and beneficial rule of practice, that, where the same offense is charged in different counts of an indictment, the whole indictment may be submitted- to the jury, with instructions, if they find the defendant guilty upon' any count, to return a general verdict of guilty. But this rule is not applicable where one count of the indictment is bad, and the evidence applicable to such bad count is submitted to the jury with the rest, against the objection of the defendant.

All such general rules of practice must yield, whenever it appears that the just rights of the defendant are insufficiently protected by them.” In the present case, notwithstanding the offense charged in the third count was different from that charged in the first two, the court instructed the jury that they might find all or any of the defendants guilty on all or any of the three counts; that they could find a general verdict of guilty, and such verdict would be upheld in the way of pleading, if any one of the counts in the indictment was good, and the defendant excepted.

A general verdict and judgment in criminal cases will ordinarily be sustained if one of the counts is good. This is for the reason that “the presumption of law is that the court awarded sentence on the good count only” (Claassen v. United States, 142 U. S. 140, 146, 147, 12 Sup. Ct. 169, 170 [35 L. Ed. 966]; Commonwealth v. Carey, 103 Mass. 214, 215, 216); and that the jury were instructed to pass upon each count, and did so in rendering their general verdict (Commonwealth v. Carey, supra).

But where an, indictment contains several counts, some of which charge different offenses calling for other and different proof, and the record discloses that the court instructed the jury that they might find the defendant guilty on any one of the counts, without requiring them to pass upon the others, and render a general verdict, which would be upheld if any one of the counts was goody and the question is properly saved by exception, the presumption ordinarily indulged in that the jury were instructed to pass upon each count separately and did so (Commonwealth v. Carey, supra), is wanting.

In such case, if any count is bad, the verdict must fall, for it cannot be presumed, as in the ordinary case, that the verdict ryas based upon'all the counts, so that the verdict and judgment would be good if one of them was sufficient. Here the jury, under the instructions of the court, may have based their verdict on the first two counts, which were bad, and such being the case, the judgment cannot be sustained, as the third count charged a different offense from that charged in the first two, and calls for other and different proof. Commonwealth v. Carey, supra.

The instruction excepted to was erroneous, and there must be a new trial. The judgment of the District Court is vacated, the verdict set aside, and the case remanded to the District Court for a new trial.