container was without stamps. On one occasion, according to Hiatt, Klopfer said to him, 'You guys must have a big joint going to use this much sand.'
Some time in February 1960, following the raid, Agent Ginn with other investigators visited the garages and interviewed both Klopfer and his employer. They found in one of the garages a white crystalline substance which was later determined to be sugar. Klopfer told the investigators that he had never seen any sugar in the garages, and denied that he had ever sold sugar to anyone.
Counsel concedes that the evidence would support a finding that Klopfer knew the sugar was to be used for an illegal purpose, but contends that it is wholly insufficient to prove beyond a reasonable doubt that Klopfer knew that the buyers were parties to a conspiracy to operate an illegal still. He relies upon United States v. Falcone, 1940, 311 U.S. 205, at page 210, 61 S. Ct. 204, at page 207 where it was held:
'Those having no knowledge of the conspiracy are not conspirators, United States v. Hirsch, 100 U.S. 33, 34 (25 L. Ed. 539); Weniger v. United States (9 Cir.), 47 F.2d 692, 693; and one who without more furnishes supplies to an illicit distiller is not guilty of conspiracy even though his sale may have furthered the object of a conspiracy to which the distiller was a party but of which the supplier had no knowledge.'
We think the evidence amply supports the verdict. Hiatt's testimony, if accepted, almost compelled the finding that Klopfer knew of a combination or confederation engaged in the operation of an illicit distillery. He was not, of course, required to know the identity, or even the number, of all his confederates. United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503, 507.
It is true, as counsel points out, that in Falcone the Court did not reach the question whether knowledge of a conspiracy 'would make them (suppliers) conspirators or aiders or abettors of the conspiracy.' 311 U.S. 205, 210, 61 S. Ct. 204, at page 206. However, that question has received an affirmative answer in several of the Courts of Appeals, including our own. Pernatto v. United States, 3 Cir., 1939, 104 F.2d 427; United States v. Pandolfi, 2 Cir., 1940, 110 F.2d 736; United States v. Harrison, 3 Cir., 1941, 121 F.2d 930; United States v. Giuliano, 3 Cir., 1959, 263 F.2d 582.
The facts before us are somewhat similar to those in United States v. Piampiano, 2 Cir., 1959, 271 F.2d 273. There, Amico, a partner in a produce business dealing primarily in fresh fruits and vegetables and only occasionally in buying sugar, arranged for purchase from a wholesale company of large quantities of sugar which was paid for in cash and handled separately from the partnership account, and picked up in an unmarked truck and delivered to the still site. In holding the evidence sufficient to sustain a conviction, the Court used language pertinent in the present instance (at page 274):
'Amico invokes United States v. Falcone, 311 U.S. 205, 61 S. Ct. 204, 85 L. Ed. 128, affirming 2 Cir., 1940, 109 F.2d 579, for the proposition that a mere supplier, even one aware of the illegal purpose of his purchaser, cannot be held as a coconspirator. But here Amico did much more than act as a supplier. Contrary to the facts in Falcone, Amico deviated from his usual line of business in purchasing large quantities of sugar. He did not sit back and simply accept orders that came his way but began dealing in a commodity almost entirely new to him and in a manner quite different from his other business transactions.
'Amico was willing to and did take measures to make it difficult to trace the sugar. The jury might reasonably have found that he secretive manner of his purchases was indicative of an intent actively to further the conspiracy. Direct Sales Co. v. United States, 1943, 319 U.S. 703, 63 S. Ct. 1265, 87 L. Ed. 1674. His conduct, it could be found, showed an interest in seeing that the illegal operation prospered and continued and that it would avoid detection.'
Klopfer's motion for judgment of acquittal is without substantial merit and will be dismissed.
Leroy and Jacqueline Haith
Lewis Hiatt testified that he first met Haith in the early part of November 1959, at a restaurant in New Jersey on the northbound lane of the New Jersey Turnpike, below the Mt. Holly and Burlington exits. Haith was alone on this occasion, and drove a two-door Buick bearing Virginia license plates. Hiatt informed Haith how many cases of 'goods' he had for him, and told him where to meet Kensil. Hiatt then took Haith's car to a 'drop', loaded it with twenty 6-gallon cases of 'booze' that he had taken from the still and then drove it to another restaurant on the southbound lane of the Turnpike. Haith got out of Kensil's car, entered the Buick and drove southwardly on the Turnpike.
Two days later, Hiatt delivered to Haith the 'same quantity' of illicit liquor, in what he described as identical circumstances.
From this time on, according to Hiatt, Haith 'came up' every other day, except that he missed a day now and then. Haith's wife, defendant Jacqueline Haith, was with him on occasion. On arrival at a meeting place apparently pre-arranged between Haith and someone other than Hiatt, they exchanged vehicles; Hiatt loaded Haith's vehicle with 20 to 24 cases of alcohol from a 'drop' in Pitman and met Haith at another place, where they again exchanged vehicles. The alcohol came from the still on the Old Schmidt Farm. On two or three occasions, Haith gave money to Hiatt at the time of these deliveries, and Mrs. Haith did so once. Each sum was $ 500 or thereabouts.
Hiatt testified that he made 50 or 60 deliveries of illicit spirits to Haith approximately between November 1, 1959, and February 8, 1960; that Mrs. Haith was with her husband on about 30 of these occasions; and that 'once or twice' he delivered liquor to Mrs. Haith when she was alone. He said that he looked at the containers at the time of the transfers to Mr. and Mrs. Haith and that he didn't see any 'Federal tax stamps' affixed either to the cases or the jars.
We shall first consider the Government's case against Leroy Haith. We do not agree that he evidence fails to establish that Leroy Haith had knowledge that 'the sellers and/or transferors' of the distilled spirits consisted of two or more members of an existing conspiracy. Hiatt told Haith at the very first meeting 'where to go to meet Eddie Kensil', and later saw Haith 'getting out of Eddie Kensil's car.' This was no 'casual and unexplained' meeting. United States v. Falcone, 311 U.S. 205, 210, 61 S. Ct. 204, 85 L. Ed. 128. In the entire context of the circumstances, the inference is irresistible that Kensil was present in connection with the transfer of the liquor and that Haith knew it. Haith thus knew of an illegal combination to possess, transfer, sell, etc., untaxed spirits. Defendant admits in his able brief that, 'Knowledge of all the members of the conspiratorial group and detailed information as to the function of each member is not required before one is held to have joined an existing unlawful venture.' See, also, United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503, 507.
Haith insists that the evidence establishes only a series of 'simple sales' of illicit spirits, and contends that the 'mere qurchase' does not make one a member of a conspiracy in which the seller is a member. The Court charged that if a crime necessarily involves mutual cooperation of two persons, and if those two persons have in fact committed the crime, they may not be convicted of a conspiracy to commit it. See United States v. Katz, 1926, 271 U.S. 354, 46 S. Ct. 513, 70 L. Ed. 986, among other cases. It was left to the jury to determine whether the transfers to Haith constituted sales, without more; or sales for the purpose of resale; or not sales at all, but mere steps in a plan or scheme of distribution of the illicit spirits whereby they were placed in the hands of the ultimate consumers. The verdict establishes that the transfers were more than 'simple sales'. Considering their frequency and the quantities involved, the jury could have reached no other reasonable conclusion. The evidence proves beyond doubt that Haith not only was a part of the chain of distribution, but that he knew he was a part and was acquainted with a substantial number of the other participants. What was said in United States v. DeVasto, 2 Cir., 1931, 52 F.2d 26, 30, 78 A.L.R. 336, is particularly apt here:
'It is insisted by these appellants that the proof showed merely that they were purchasers, and that purchasers of intoxicating liquor are not liable as conspirators with the sellers. Norris v. United States, 34 F.2d 839 (C.C.A.3), reversed on other grounds, 281 U.S. 619, 50 S. Ct. 424, 74 L. Ed. 1076; Becher v. United States, 5 F.2d 45, 50 (C.C.A.2); United States v. Heitler, 274 F. 401, 405 (D.C.E.D.Ill.). Assuming that a proper construction of the National Prohibition Act (27 U.S.C.A.), which failed to make the purchase of liquor criminal, forbids holding that a purchaser as such is a coconspirator with the seller, the facts in the present case do not include it within such rule. Here the purchases were not for personal consumption, but for resale. These appellants were steady purchasers from the beginning of the Columbia Company's operations. The jury could find that they had knowledge of the proved conspiracy to manufacture, transport, and sell, and that they actively assisted to further the ends of the conspiracy by acting as distributors of the brewery's output of undealcoholized beer.'
Haith further contends that the evidence fails to show knowledge on his part of the source of the alcohol, and that without knowledge that it was being produced by a conspiracy in which Hiatt was a member, Haith cannot be deemed to have joined the specific conspiracy alleged in the indictment. We are not impressed by this argument. Haith knew of the existence of a conspiracy to violate the internal revenue laws relating to distilled spirits, and knew, under the evidence, that Hiatt and Kensil were parties to it. It was not necessary, in order to make Haith a participant therein, that he know the identity or number of his confederates, or their precise functions. It was enough that he know the contral aim and objective of the confederation, and that he join therein. It was not a sine qua non that he know the exact source of the alcohol so long as that source lay within the known general design and purpose. As stated in United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503, 507, when a party to a conspiracy 'embarks upon a criminal venture of indefinite outline, he takes his chances as to its content and membership, so be it that they fall within the common purposes as he understands them.'
In similar vein, Haith argues that there was a variance between allegations and proof, in that the Government proved a number of isolated smaller conspiracies rather than a single, overall conspiracy. Assuming, it is said, that Haith conspired with Hiatt and possibly Kensil, the evidence will not support a finding that Haith united with the other defendants 'to advance a common undertaking'. Great reliance is placed on Kotteakos v. United States, 1946, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557, wherein defendants were indicted for a single general conspiracy to violate the National Housing Act, (12 U.S.C.A. § 1702, 1703, 1715, 1731) by inducing lending institutions to make loans which would be offered to the Federal Housing Administration for insurance on the basis of false and fraudulent information. The evidence, however, proved eight or more different conspiracies by separate groups of defendants which had no connection with each other except that all utilized one Brown as a broker to handle fraudulent applications.
Kotteakos is clearly not in point. The evidence here does not prove one conspiracy to produce illicit spirits and a separate, distinct conspiracy to distribute them, with no connection between them except Hiatt's presence within each group. Production and distribution were not independent and unconnected ventures, but interdependent and complementary steps in a single, integrated and overall enterprise to violate the law.
Finally, we are not persuaded that the refusal of Haith's motion for a severance was an abuse of discretion, or that he suffered prejudice thereby. 'When many conspire, they invite mass trial by their conduct.' Kotteakos v. United States, 1946, 328 U.S. 750, 773, 66 S. Ct. 1239, 1252, 90 L. Ed. 1557.
We conclude that Leroy Haith's contentions are without merit, and his motions will be denied.
As to Jacqueline Haith, we conclude that the evidence will not fairly support a finding that she had knowledge of the conspiracy. Those having no knowledge of the conspiracy are not conspirators. United States v. Falcone, 1940, 311 U.S. 205, 210, 61 S. Ct. 204, 85 L. Ed. 128. Accordingly, her motion for judgment of acquittal will be granted.
Dominic Sparagno and Richard Ferraro
Hiatt testified to three contacts with Sparagno and Ferraro and one with Ferraro alone between November 1959 and January 1960. On each occasion, Hiatt delivered cases of alcohol from the still on the Old Schmidt Farm. The Government frankly concedes that the proofs fail to show that either defendant had any connection 'with containers to which the required federal stamps were not affixed.' The evidence failed sufficiently to establish that either defendant had knowledge of the conspiracy. They were, therefore, not conspirators. United States v. Falcone, supra. Accordingly, their motions for judgment of acquittal will be granted.