Circuit Court of Appeals, Second Circuit.
*711 Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Cletus Keating, Delbert M. Tibbetts, and Staunton Williams, all of New York City, of counsel), for appellant.
William A. De Groot, U. S. Atty., of Brooklyn, N. Y. (Howard Osterhout, Asst. U. S. Atty., of Mineola, N. Y., of counsel), for the United States.
Before HOUGH, HAND, and MACK, Circuit Judges.
*712 HOUGH, Circuit Judge (after stating the facts as above).
One matter of practice requires attention: This cause was promoted in admiralty, and the United States without leave of court replied to the answer. Such pleading is permitted only by special order. Ben. Adm. (5th Ed.) §§ 234 and 343.
The story of the "rum-runner" Zeehond is much simpler than the pleadings. She left Belgium for the purpose of violating or enabling others to violate the laws of this country; she anchored on the Cholera Banks well outside the 12-mile limit, waiting for a market, which market was being sought on shore by Goeyens. At least one customer was found who came to look at the goods, and on or about December 2d the American citizen who brought that customer out was, 15 miles from shore, gratified with a small amount of liquor. The Zeehond, according to the evidence, never went voluntarily within the 12-mile limit, and was seized when seeking a harbor of refuge.
For purposes of decision this history is divisible into two parts: (1) What happened on the Cholera Banks between the 2d and 6th of December; (2) what happened on December 7th within the territorial waters of the United States.
In Coffey v. United States, 116 U.S. 436, 443, 6 S. Ct. 437, 440 (29 L. Ed. 684), it was held:
"Where an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judgment is conclusive in favor of such person, on the subsequent trial of a suit in rem by the United States, where, as against him, the existence of same act or fact is matter in issue, as a cause for the forfeiture of the property prosecuted in such suit in rem."
More shortly, the doctrine was stated in Stone v. United States, 167 U.S. 178, 186, 17 S. Ct. 778, 781 (42 L. Ed. 127), holding that the judgment in the Coffey Case "was placed distinctly upon the ground that the facts ascertained in the criminal case, as between the United States and the claimant [of the res], could not be `again litigated between them, as the basis of any statutory punishment denounced as a consequence of the existence of the facts.'"
It is clear that the criminal charge was attempted violation of the Prohibition Act by transporting liquor within territorial waters, and defense was that she was seeking a harbor of refuge. A necessary consequence of acquitting on this charge, after such a defense was a holding in substance that on December 7th the crew of the Zeehond (including appellant) had no criminal intent and were running for refuge, instead of running rum. Under the cases cited (see, also, U. S. v. Salen [D. C.] 244 F. 296, Sierra v. U. S., 233 F. 37, 147 Cow. C. A. 107, and U. S. v. Gully, 9 F.[2d] 959, 1923 A. M. C. 279), it is impossible for the government to say (as it substantially attempts to do in one portion of this libel), You may have been running for a harbor of refuge without present intention of violating the Volstead Act, but we will hold you civilly for not having a manifest (R. S. § 2806) and trying to smuggle liquor into the country. It is quite unnecessary to discuss the matter further, the principle is too well known; that it has not always met with approbation in the state courts (People v. Snyder, 90 A.D. 422, 86 N. Y. S. 415), is unimportant.
It results that so much of this libel as counts on the events of the 7th of December cannot be considered, and it remains but to ascertain the legal effect of what was done between December 2d and 5th on the high seas and 15 miles from the nearest American shore.
What happened was exactly this: An American citizen in his own motorboat came to the Zeehond and got two cases of liquor as a gift; for Goeyens paid him for the ferriage out and back.
It has been held possible for those on board of a vessel lying beyond the limits to violate the various customs regulations, including R. S. § 2806, requiring a manifest. The Henry L. Marshall (C. C. A.) 292 F. 486. But in that case those in charge of the vessel corresponding to the Zeehond made arrangements to put their cargo ashore by means of small boats not belonging to the rum-carrying vessel, but obtained for the purpose of discharging her cargo, and then carried out their purpose.
Nothing of the kind was done here. To call the gift to Sprague an unloading into lighters (as the libel does) is merely untrue. Doubtless what Sprague got was liable to forfeiture, but no arrangement was made with him to get even his two cases ashore. Sprague was at liberty to take the stuff anywhere, or to drink it at sea. Doubtless, if the Zeehond had not become almost unmanageable, Leveque would have made arrangements to do the very thing that was condemned in The Henry L. Marshall; but for the purposes *713 of this case it is enough that nothing of the sort was done.
Reliance on section 592 of the Tariff Act of 1922 fails for substantially the same reasons. That statute denounces in effect any "attempt to enter or introduce into the commerce of the United States any imported merchandise" by "any willful act or omission by means whereof the United States is or may be deprived of the lawful duties" accruing upon such merchandise.
It is sufficient to observe of this statute that there can be no violation until there is an attempted entry or introduction of merchandise into this country. We think it true that the object of the Zeehond's going to the Cholera Banks was to introduce, or enable others to introduce, prohibited liquor into the commerce of the United States. But certainly one could not be prosecuted for an intention so to do entertained on the other side of the world; and there is no legal difference between China and the Cholera Banks, so far as the intent is concerned. Our laws are territorial (American Banana Co. v. U. S. Fruit Co., 213 U.S. 347, 29 S. Ct. 511, 53 L. Ed. 82), and it is no violation of the National Prohibition Act to either give away or sell liquor on the high seas. Cunard v. Mellon, 262 U.S. 101, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306.
Result is that this claimant and others have been by a jury conclusively found guiltless of all violations of law (here mentioned or relevant) on December 7, 1923, and between December 2 and 5, 1923, this claimant and the cargo of which he was bailee were on the high seas in a Dutch schooner. The libel should have been dismissed.
Decree reversed.
