UNITED STATES v. DOWNING

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Docket Number

No. 443.

Attorney(S)

William B. Mahoney, of Buffalo, N.Y., for appellant Downing. John S. McGovern, of Buffalo, N.Y., for appellant Downey. Richard H. Templeton, of Buffalo, N.Y. (Justin C. Morgan, of Buffalo, N.Y., of counsel), for the United States.

Judges

Thomas Walter Swan
Harrie Brigham Chase

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Smart Summary

Factual and Procedural Background

Edward Downing and George Downey were convicted of conspiring to import a cargo of intoxicating liquor from Canada into the United States at Buffalo, in violation of section 593 of the Tariff Act of 1922 (19 USCA § 497). The prosecution's evidence was that a man named Devine met Downing in Hamilton, Ontario, and arranged to bring a thousand cases of ale into the United States. Devine later telephoned Downing arranging a substitute importer, posted a letter to Cullen giving Downing's Buffalo address, and Cullen undertook to bring a barge to Hamilton, receive the cargo at Port Colborne, carry it to Buffalo, and deliver it with Devine's assistance after Devine returned. Downey helped load the barge at Port Colborne and discharge it at Buffalo. Downing and Downey appealed their convictions to the Circuit Court of Appeals, Second Circuit. The court's disposition: judgment affirmed as to Downing; appeal dismissed as to Downey.

Legal Issues Presented

Whether there was proof of a conspiracy within the United States sufficient to sustain the convictions when some parts of agreement or overt acts occurred in Canada.
Whether an indictment should be dismissed for lack of proof of an overt act within the jurisdiction when performance of part of the agreement occurred within the United States.
Whether the appellate court has jurisdiction to review alleged trial errors as to a defendant who (so far as the record shows) did not perfect an appeal and where no settled bill of exceptions signed by the trial judge appears in the record.
Whether the trial judge's instruction permitting the jury to infer from a witness's prior conviction that he was likely to commit a similar crime was proper or prejudicial.

Arguments of the Parties

Appellant Downing's Arguments

There was no proof of any conspiracy within the United States and therefore the indictment should have been dismissed.
The overt acts alleged in the indictment and necessary to establish jurisdiction were not proved within Buffalo (i.e., within the jurisdiction).

Appellant Downey's Arguments

At the argument, counsel for Downey (Mr. McGovern), with the consent of the district attorney, adopted Downing's assignments of error.
The opinion does not detail any separate, distinct arguments advanced solely by Downey beyond the adoption of Downing's assignments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hyde v. U.S., 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614	Conspirators are treated as repeating their agreement wherever any part of it is executed; conspiracy may be treated as continuing or renewed where part of it is performed.	Used to support the proposition that Downing could be treated as conspiring in the United States when the barge was brought to Buffalo and discharged under arrangements involving him.
Brown v. Elliott, 225 U.S. 392, 32 S. Ct. 812, 56 L. Ed. 1136	Companion case to Hyde on related jurisdictional/conspiracy principles.	Cited as a related authority; its distinction (removal between parts of U.S.) noted but not followed as a bar to applying Hyde's principle here.
Ford v. U.S., 273 U.S. 593, 47 S. Ct. 531, 71 L. Ed. 793	Application of the rule that a conspirator may be treated as conspiring where part of the agreement is executed; on all fours with the present case.	Relied upon to resolve doubts and confirm that the conspiracy theory supports jurisdiction and conviction here.
Hyde v. Shine, 199 U.S. 62, 25 S. Ct. 760, 50 L. Ed. 90	The conspiracy is the substantive crime; overt act is necessary only to show that performance has begun.	Quoted to explain that the overt act need not be an act laid within the jurisdiction so long as part of the agreement is performed in the jurisdiction.
Dealy v. U.S., 152 U.S. 539, 547, 14 S. Ct. 680, 38 L. Ed. 545	An overt act may be laid outside the jurisdiction; related to where overt acts need be alleged.	Used to support the proposition that the overt act relied upon need not be an overt act laid in the indictment within the jurisdiction.
Chew v. U.S., 9 F.2d 346, 353 (C.C.A. 8)	Authority for the proposition that an overt act may be alleged or proved outside the jurisdiction in a conspiracy case.	Cited alongside Dealy to show precedent permitting overt acts outside the jurisdiction to suffice.
Clune v. U.S., 159 U.S. 590, 593, 16 S. Ct. 125, 40 L. Ed. 269	Judge's settlement and certificate of a bill of exceptions is essential to bring trial proceedings into the record for appellate review.	Applied to conclude that, absent a settled bill of exceptions signed by the judge, the appellate court lacks power to consider asserted trial errors as to Downey (and in general).
Metropolitan R.R. Co. v. Columbia, 195 U.S. 322, 330, 332, 25 S. Ct. 28, 49 L. Ed. 219	Requirement of judge's settling/certificate for bills of exceptions to be part of the record.	Reinforced the rule that the judge's certificate is essential for appellate consideration of trial proceedings.
Reilly v. Beekman, 24 F.2d 791 (C.C.A. 2)	Local circuit authority on the necessity of a settled bill of exceptions for appellate review.	Cited as controlling regional precedent that the appellate court cannot consider trial errors absent a settled bill of exceptions.
Weiner v. U.S., 20 F.2d 522 (C.C.A. 3)	Prior conviction of a witness is competent evidence for impeachment.	Applied to hold that Downey's admission of a prior conviction was, standing alone, competent impeachment evidence.
Wigmore, § 192	Authority criticizing or identifying the error of allowing juries to infer guilt of current offense from prior convictions; limits on permissible uses of prior conviction evidence.	Cited to support the conclusion that the trial judge erred in instructing the jury they might infer Downey's guilt from his prior conviction and that such instruction was plainly erroneous.

Court's Reasoning and Analysis

The court analyzed the sufficiency of the prosecution's proof and the jurisdictional question by applying established conspiracy doctrines. It explained that conspirators are treated, by legal fiction, as repeating their agreement wherever any part of it is executed; therefore, when Cullen brought the laden barge to Buffalo and Devine and Downey discharged it under arrangements involving Downing, all parties could be treated as conspiring in the United States. The court relied on Hyde v. U.S. and Ford v. U.S. to support that conclusion.

The opinion addressed the role of the overt act: while the indictment had alleged overt acts in Buffalo, the proof of those particular overt acts failed and was sufficient only as to an act in Ontario. The court explained (citing Hyde v. Shine, Dealy v. U.S., and Chew v. U.S.) that the conspiracy itself is the crime and an overt act is necessary only to show that performance has begun; the overt act relied upon need not be an overt act laid in the indictment within the jurisdiction because jurisdiction depends on where the crime (performance of part of the agreement) is committed.

Procedurally, the court confronted the absence of a settled bill of exceptions and the lack of an appeal by Downey. It observed that the transcript contained a document titled "Defendant's Bill of Exceptions" and a clerk's certification of the transcript, but the trial judge never settled any bill of exceptions and his certificate is essential. Citing Clune, Metropolitan R.R. Co. v. Columbia, and Reilly v. Beekman, the court held it lacked jurisdiction to review trial errors in the absence of a settled bill of exceptions and (as to Downey) lacked jurisdiction because, so far as appears, he had not appealed.

The court also considered the single potentially debatable substantive trial error: Downey's admission of a prior conviction was competent impeachment evidence (Weiner v. U.S.), but the trial judge went further and told the jury they might infer from the earlier conviction "the likelihood of a person ... of again engaging in a similar transaction." The court held that instruction was plainly erroneous (citing Wigmore § 192) because it improperly invited the jury to infer guilt of the charged offense from a prior conviction and could be prejudicial. The panel noted that, absent an appeal and settled bill of exceptions, it could not reach a conclusive remedy on that ground for Downey.

Holding and Implications

Holding: The court affirmed the judgment as to Edward Downing and dismissed the appeal as to George Downey.

Implications: The direct effect is that Downing's conviction stands and Downey's appeal is dismissed for procedural defects (absence of an appeal and absence of a settled bill of exceptions), leaving the trial judgment intact as to him. The opinion does not announce the creation of a new legal precedent; it applies existing precedent concerning conspiracy jurisdiction, the role of overt acts, the requirements for appellate review of trial proceedings, and the proper use of prior convictions for impeachment and the limits on jury inference from such convictions.

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UNITED STATES v. DOWNING et al.

L. HAND, Circuit Judge.

Downing and Downey were convicted of conspiring to import from Canada a cargo of intoxicating liquor into the United States at Buffalo. The evidence of the prosecution was that one, Devine, met Downing in Hamilton, Ontario, and agreed with him to bring a thousand cases of ale into the United States. Later he had a telephone talk with Downing, and arranged to have the ale brought in by some one else, as Devine was leaving Buffalo for a time. He thereupon posted a letter to one, Cullen, giving Downing's name and address in Buffalo, and Cullen undertook the job, writing Downing when he would reach Hamilton with his barge to load the ale. He took her to Hamilton, and after some delay received the cargo at Port Colborne, whence he carried it to Buffalo, and delivered it with the help of Devine, who had returned. Downey helped to load the barge at Port Colborne and to discharge her at Buffalo.

On this evidence Downing argues that there was no proof of any conspiracy within the United States, and that the indictment should have been dismissed. If Downing was in Buffalo when Devine agreed on the telephone to get a substitute, this would alone have been enough. Possibly the evidence is not entirely clear as to where he was at that time, though Devine gave Cullen a Buffalo address. However, when the barge came in, Devine advised Downing at Downing's request, who was then at any rate in Buffalo. But all this is quite beside the point, since it was not necessary that Downing should have come to the United States at all. Conspirators are considered by a fiction as repeating their agreement wherever any part of it is executed. Thus, when Cullen brought the laden barge to Buffalo, and Devine and Downey discharged her, under an arrangement with Downing to that effect, all the parties to the original agreement could be treated as conspiring afresh. Hyde v. U.S., 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. It is true that that case and its companion, Brown v. Elliott, 225 U.S. 392, 32 S. Ct. 812, 56 L. Ed. 1136, both involved the defendant's removal for trial from one part of the United States to another, and conceivably a distinction might be drawn, though not a good one; but Ford v. U.S., 273 U.S. 593, 47 S. Ct. 531, 71 L. Ed. 793, is precisely on all fours with the case at bar and lays all doubts, if any could arise.

Again, it is true that in those cases the indictment laid, and the evidence proved, an overt act within the jurisdiction, and that it was upon this that the court relied. That was not true here, because while the indictment laid overt acts in Buffalo, the proof broke down as to them, being sufficient only as to an overt act laid in Ontario. However, the conspiracy is the crime (Hyde v. Shine, 199 U.S. 62, 25 S. Ct. 760, 50 L. Ed. 90); the overt act is necessary only to show that performance has begun, and it may be laid outside the jurisdiction [Dealy v. U.S., 152 U.S. 539, 547, 14 S. Ct. 680, 38 L. Ed. 545; Chew v. U.S., 9 F.2d 346, 353 (C.C.A. 8)]. Since jurisdiction depends upon where the crime is committed, and it is committed wherever any part of the agreement is performed, the act of performance relied upon need not be an overt act laid in the indictment. We can see nothing in Downing's appeal to warrant a reversal.

At the argument Mr. McGovern appeared for Downey and with the consent of the district attorney, adopted Downing's assignments of error. We may assume arguendo that this was permissible, if Downey had appealed. The difficulty is that, so far as appears, he has never appealed at all, and we are without jurisdiction as to him. Indeed, there is in addition no bill of exceptions, which alone could present any of the errors argued. The transcript does indeed contain what purports to be a complete copy of all that took place upon the trial, headed "Defendant's Bill of Exceptions," and the transcript is certified by the clerk as "a full, true and correct transcript of the record," whatever that may mean. But the judge never settled any bill of exceptions, and his certificate is essential to our consideration of what took place upon the trial. Only then does any part of it come into the record. Clune v. U.S., 159 U.S. 590, 593, 16 S. Ct. 125, 40 L. Ed. 269; Metropolitan R.R. Co. v. Columbia, 195 U.S. 322, 330, 332, 25 S. Ct. 28, 49 L. Ed. 219; Reilly v. Beekman, 24 F.2d 791 (C.C.A. 2). Indeed, we are equally without power to consider the points raised by Downing, which we have discussed only because it is desirable to show that he has suffered no harm by his failure to conform with the formalities. Our inability is even deeper as to Downey, because of the absence of an appeal.

There is indeed but one point which could in any event be debatable. Downey took the stand and was asked whether he had not already been convicted of violating section 593(a) of the Tariff Act of 1922 (19 US CA § 496); that is, of introducing goods into the United States by fraudulent practices. He so admitted, and the evidence was competent [Weiner v. U.S., 20 F.2d 522 (C.C.A. 3)]; competent indeed even in such jurisdictions as require the impeaching crime to affect the witness' credibility directly. Had the matter rested there, there could have been no doubt; but it did not. The judge charged the jury that they might take the earlier conviction "into account as bearing upon the likelihood of a person who had been engaged in a crime such as he admitted, of again engaging in a similar transaction." This he refused to modify when his notice was called to the error, for of course it was plainly such. Wigmore, § 192.

It is quite true that jurors will often make no distinction between an accused's credibility and his guilt. And indeed, although the law may be justified in refusing to recognize the inference from the commission of one crime to that of another, most people feel its force, and this is the source of the danger in admitting such evidence for a different purpose. The least courts can do, accepting the rule as authoritative, is to advise the jurors that they should not do exactly what the judge here told them that they might. Nor are we disposed to regard such an admonition as a ritualistic formality, whose disregard we should ignore, except in a very plain case. Some jurors are wilful, some somewhat pathetically docile; it is impossible to say a priori that none will be influenced by an instruction which it is not impossible in practice to observe. Indeed unless we are to abdicate altogether, we may not proceed on the assumption that whatever a judge says, the result will be the same. We are all curiously ignorant of the actual working of the institution to which we so jealously adhere, but so far as any inference is justified, we should not presuppose that all such cautions are a waste of words.

Of course when the guilt of the accused is altogether plain, we can and should disregard such incidents. In the case at bar Downey was connected with the enterprise only by Devine and Cullen. Devine had been an accomplice, though he was not indicted; Cullen was indicted and had pleaded guilty. Downey denied any connection with the transaction. If the matter was open to us, we might hesitate to say that in such a setting it could have made no difference that the judge positively told the jury that they might reason from the accused's former crime to his commission of another. We cannot therefore say that the absence of any appeal and bill of exceptions did no harm. Unfortunately we have no alternative but to dismiss the appeal for the reasons already given.

Judgment affirmed as to Downing.

Appeal dismissed as to Downey.