CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a review by certiorari of the conviction of George Ford, George Harris, J. Evelyn, Charles H. Belanger and Vincent Quartararo, of a conspiracy, contrary to § 37 of the Criminal Code, to violate the National Prohibition Act, Title II, §§ 3 and 29, c. 85, 41 Stat. 305, 308, 316, and the Tariff Act of 1922, § 593 (b), c. 356, 42 Stat. 858, 982. The trial and conviction resulted largely from the seizure of the British vessel Quadra, hovering in the high seas off the Farallon Islands, territory of the United States, twenty-five miles west from San Francisco. The ship, her officers, her crew and cargo of liquor were towed into the port of San Francisco. The seizure was made under the authority of the treaty between Great Britain and the United States, proclaimed by the President May 22, 1924, 43 Stat. 1761, as a convention to aid in the prevention of the smuggling of intoxicating liquors into the United States.
The main questions presented are, first, whether the seizure of the vessel was in accordance with the treaty; second, whether the treaty prohibits prosecution of the persons, subjects of Great Britain, on board the seized vessel brought within the jurisdiction of the United States upon the landing of such vessel, for illegal importation of liquor; third, whether the treaty authorizes prosecution of such persons, not only for the substantive offense of illegal importation or attempt to import, but also for conspiracy to effect it; and, fourth, whether such persons,
without the United States, conspiring and cooperating to violate its laws with other persons who are within the United States and to commit overt acts therein, can be prosecuted therefor when thereafter found in the United States.
The petitioners and fifty-five others were indicted in November, 1924, for carrying on a continuous conspiracy at the Bay of San Francisco, in the jurisdiction of the United States, from January 1, 1924 to November of that year, the date of the indictment, to commit offenses against the laws of the United States, first, by introducing into and transporting in the United States intoxicating liquor, in violation of the National Prohibition Act; second, by importing liquor into the United States, in violation of § 593, sub-division (b), of the Tariff Act of 1922, making it a penal offense to introduce merchandise into the United States in violation of law; and, third, by violation of the terms of the treaty. It charged as overt acts: the loading of 12,000 cases of liquor on the Quadra at Vancouver, British Columbia, her proceeding on September 10, 1924, to a point less than twelve miles from the Farallon Islands, -- a distance which could be traversed in less than an hour by the Quadra and by the motor boats, 903 B, C-55, Marconi, California, Ocean Queen and divers others, by which the liquor was then delivered from her and imported into the United States; that on the 29th of September, 1924, the defendants landed from the steamer Quadra a barrel containing 100 gallons of whiskey, and, at another time, on October 11, 1924, a large variety of alcohol, gin, brandy, whiskey, and vermouth; and that, at another time, on October 12th, the day of the seizure, they attempted to land 89 sacks of whiskey, but that two of the defendants, who were on the small craft C-55, were arrested and were prevented from carrying out their purpose. Two defendants pleaded guilty. Of twenty-nine defendants tried, nineteen, including all the crew of
the Quadra were acquitted, and ten, including the captain and the first and second officers of the Quadra, were convicted. Of these ten, five, including the three officers, are now before the Court as petitioners. The convictions were affirmed by the Circuit Court of Appeals of the Ninth Circuit. 10 Fed. 2d 339.
The validity of the indictment is attacked, first, because it charges that the conspiracy was to violate the treaty, although the treaty creates no offense against the law of the United States. This is true, but that part of the indictment is merely surplusage and may be rejected. Bailey v. United States, 5 F.2d 437; Remus v. United States, 291 Fed. 501; United States v. Weiss, 293 Fed. 992, 995; United States v. Drawdy, 288 Fed. 567, 570. The trial court took this view. But it is contended that this is to amend the indictment and comes within the inhibition of the principle of Ex parte Bain, 121 U.S. 1. That decision condemns the striking out of words from an indictment. The action here complained of is merely a judicial holding that a useless averment is innocuous and may be ignored. Goto v. Lane, 265 U.S. 393, 402; Salinger v. United States, 272 U.S. 542. Next it is said that the indictment is bad for duplicity. It charges a continuous conspiracy by the defendants, at the Bay of San Francisco, between January 1, 1924, and the date of finding the indictment, to import into the United States intoxicating liquor in violation of its laws. It mentions two of such laws, and, as § 37 of the Criminal Code requires, it describes several overt acts in pursuance of the conspiracy alleged. The charge is unitary in relating to one continuous conspiracy, although in proof of it different circumstances constituting it and overt acts in pursuance of it are disclosed. This does not constitute duplicity. Frohwerk v. United States, 249 U.S. 204, 210; Joplin Co. v. United States, 236 U.S. 531, 548.
The case on the evidence made by the Government was as follows:
On October 12, 1924, the United States Coast Guard cutter Shawnee, on the lookout for vessels engaged in the illicit importation into the United States of intoxicating liquor, saw the Quadra, a British steamer of Canadian register, near the Farallon Islands. As the Shawnee bore down on her to investigate, she turned and began to move off shore. The captain of the Shawnee signaled her to stop, and she complied. As the Shawnee approached her, a motor boat, C-55, was seen just after the boat had left the Quadra. The Shawnee captain signaled the boat to stop, and because it did not do so, fired a shot across its bow, whereupon it rounded about and came alongside. It had two men and a number of sacks of intoxicating liquor, as well as a partly filled case of beer bottles. It was made fast to the Shawnee and the two men were placed under arrest. The Shawnee captain then sent two officers aboard the Quadra to examine her papers. Ford, her captain, one of the convicted defendants, refused to show his papers or to give any information until he had consulted counsel. The Shawnee officers then took charge of her. She was found to contain a large quantity of intoxicating liquor, and on refusal of Ford to take her by steam into San Francisco, the Shawnee towed her to that port and turned her cargo over to the United States customs officers, while her officers and crew, including Ford, were arrested.
The testimony for the Government tended to show that the Quadra when seized was 5.7 nautical miles from the Farallon Islands, and that the motor boat C-55 could have traversed that distance in less than an hour.
The evidence for the Government at the trial further showed there were three vessels, the Quadra, the Malahat, and the Coal Harbour, chartered by a cargo-owning corporation
called the Consolidated Exporters Corporation, Limited, of Canada, and loaded at Vancouver, British Columbia, with large cargoes of miscellaneous liquors; that the Malahat left Vancouver in May officially destined to Buenaventura, Colombia; that the Coal Harbour left the same port in July with a similar cargo officially destined to La Libertad, San Salvador; and that the Quadra left there in September, officially destined to La Libertad. The captains of these vessels, while hovering near the Farallones, were constantly in touch with the convicted defendants Quartararo and Belanger, at San Francisco, and acted to some extent under their orders and directions. Quartararo was the most active agent of the conspiracy on shore. Belanger was a director of the Canadian corporation above named. He arranged for and had sent from San Francisco to the Malahat burlap containers to be used for landing the bottled liquor, thence to be transferred to the Quadra, and also gave the orders to transfer liquor from one vessel to another, and to bring designated liquor from the vessels' cargoes to the shore. The Quadra was supplied with fuel oil from the shore, pursuant to prearrangement. None of the sea-going vessels above named proceeded to their destinations officially described in their ship's papers, but they cruised up and down between the Farallones and the Golden Gate, where the exchanges of liquor and sacks were made and where the needed oil was delivered, and from where the liquor was carried by small boats to a landing place called Oakland Creek, in San Francisco. The evidence of the conspiracy, the landing of the liquor and the complicity of the convicted defendants therein was ample and practically undenied.
There was a preliminary motion to exclude and suppress the evidence of the ship and cargo. It was contended that the seizure was unlawful because not within the zone of the high seas prescribed by the treaty; and that the officers of the Quadra being prosecuted were protected
against its use as evidence against them under the Fourth and Fifth Amendments to the Federal Constitution. The motion was heard by the District Court without a jury and was denied in an opinion reported in 3 Fed. 2d 643. The evidence of the Government showed that the Quadra was seized at a distance from the Farallon Islands of 5.7 miles, and a test made later of the speed of the motor boat C-55, caught carrying liquor from her, showed that it could traverse 6.6 miles in an hour. There was a conflict as to the exact position of the Quadra at the time of the seizure. It was further objected that the speed of the motor boat was not made under the same conditions as those which existed at the time of the seizure.
The question of the evidential weight of the test as well as of all the circumstances was for the judgment of the trial court. As it has been affirmed by the Circuit Court of Appeals, we see no reason to reverse it.
It is objected that the question of the validity of the seizure should have been submitted to the jury. So far as the objection relates to the admission of evidence, it has already been settled by this Court that the question is for the court and not for the jury. Steele v. United States, 267 U.S. 505, 511; Gila Valley Railway Company v. Hall, 232 U.S. 94, 103; Bartlett v. Smith, 11 M. & W. 483; Doe dem. Jenkins v. Davies, 10 Ad. & El. N. S. 314; Cleave v. Jones, 7 Exchequer 421, 425; Wigmore on Evidence, (2nd ed.) vol. V., p. 556, § 2550.
It is further objected, however, that the issue as to the place of the seizure, though submitted to and disposed of by the court in respect of the admissibility of evidence, should also have been submitted to the jury on the general issue. The Solicitor General answers, on the authority of Ker v. Illinois, 119 U.S. 436, that an illegal seizure would not have ousted the jurisdiction of the court to try the defendants. But the Ker case does not apply here. It related to a trial in a state court, and this Court found
that the illegal seizure of the defendant therein violated neither the Federal Constitution, nor a federal law, nor a treaty of the United States, and so that the validity of their trial after alleged seizure was not a matter of federal cognizance. Here a treaty of the United States is directly involved, and the question is quite different.
But there is a reason why this assignment of error can not prevail. The issue whether the ship was seized within the prescribed limit did not affect the question of the defendants' guilt or innocence. It only affected the right of the court to hold their persons for trial. It was necessarily preliminary to that trial. The proper way of raising the issue of fact of the place of seizure was by a plea to the jurisdiction. A plea to the jurisdiction must precede the plea of not guilty. Such a plea was not filed. The effect of the failure to file it was to waive the question of the jurisdiction of the persons of defendants. Dowdell v. United States, 221 U.S. 325, 332; Albrecht v. United States, 273 U.S. 1; Gardner v. United States, 5 Indian Territory 150, 156; Regina v. Stone, 23 Ontario 46, 50; In re Paul, 5 Alberta Law 442; State v. Bishop, 7 Conn. 181; State v. Watson, 20 R. I. 354; State v. Kinney, 41 Iowa 424; In re Roszcynialla, 99 Wis. 534, 538; State ex rel. Brown v. Fitzgerald, 51 Minn. 534; In re Brown, 62 Kan. 648; State v. Browning, 70 S. Car. 466; Hollibaugh v. Hehn, 13 Wyo. 269; In re Blum, 9 N. Y. Misc. 571; 1 Bishop Crim. Proc. (2d ed.) §§ 730, 744 and 746; 1 Chitty Criminal Law (5th Am. ed.) p. 438. It was not error therefore to refuse to submit to the jury on the trial the issue as to the place of the seizure.
There was a demurrer to the indictment, on the grounds that it did not state facts sufficient to constitute an offense against the United States, that the court had no jurisdiction to try those who were on the Quadra because seized beyond the three-mile limit, and that the acts charged were not within the jurisdiction of the court. The conspiracy
was laid at the Bay of San Francisco, which was within the jurisdiction of the court. The conspiracy charged was undoubtedly a conspiracy to violate the laws of the United States under § 37 of the Criminal Code. The court had jurisdiction to try the offense charged in the indictment and the defendants were in its jurisdiction because they were actually in its custody.
The defendants contend that on the face of the indictment and the treaty they are made immune from trial. This requires an examination and construction of the treaty.
The preamble of the treaty recites that the two nations, being desirous of avoiding any difficulties which might arise between them in connection with the laws in force in the United States on the subject of alcoholic beverages, have decided to conclude a convention for the purpose. The first four Articles are as follows:
"The High Contracting Parties declare that it is their firm intention to uphold the principle that 3 marine miles extending from the coast-line outwards and measured from low-water mark constitute the proper limits of territorial waters.
"(1) His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels under the British flag outside the limits of territorial waters by the authorities of the United States, its territories or possessions in order that enquiries may be addressed to those on board and an examination be made of the ship's papers for the purpose of ascertaining whether the vessel or those on board are endeavoring to import or have imported ...