Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
Appellant and nine others were by indictment charged with a conspiracy to violate the Volstead Act. Several defendants were not apprehended, and only four were tried. Two were acquitted, and Paul Morton, appellant, and one Abe Sutton were convicted. Appellant alone appealed. Conviction was secured largely upon evidence obtained through wire tapping by prohibition agents, who thereafter listened in on telephone conversations held by appellant with others over these tapped wires. Such conversations disclosed an extensive trafficking in liquor in and about Chicago. Such conversations tended to show that the liquor was purchased by the alleged conspirators in either Detroit or Windsor, Canada, trucked to Chicago, and there distributed among smaller dealers, who in turn delivered the same to their individual customers. There was additional evidence from two truck drivers who testified to hauling truckloads of liquor from Michigan to Chicago, one of whom said he received $300 from Morton in Sutton's presence for trucking one load of liquor to Chicago. The listeners-in also heard conversations had by appellant with dealers in Windsor, Canada, the substance of which covered dickerings over price, the ultimate agreement thereon, and the sale of liquor, as well as proposed and adopted methods for the payments for said liquor, which methods were calculated to avoid the possible use of such payments as evidence against them.
Appellant seeks reversal becuase of (a) improper admission of evidence, (b) refusal of court to permit appellant to fully cross-examine government witnesses, (c) remarks of the district attorney to the jury, and (d) alleged variance between the conspiracy charged and the evidence received in its support.
Appellant argues that the only proof of Morton's guilt appears in the evidence which established one of the overt acts and which occurred before the date of the creation of the conspiracy. This contention is rejected for two reasons -- legal and factual.
As a matter of law, conclusive answer to the contention is the statement that one may join an existing conspiracy, as well as participate in the formation of one. Allen v. U.S. (C.C.A.) 4 F.2d 688, 691. The legal consequences are the same.
Factually, the objection is not well taken, because the evidence of the overt act may, and it did in this case, carry the added persuasive inference of guilty participation in an existing conspiracy, as well as the commission of the substantive crime. Overt acts may be innocent and non-suggestive of crime. Likewise, they may be loaded with suggestions and inferences of criminality. In the latter case, they may serve a double purpose. They may supply the overt act required to complete the crime of conspiracy, and they may also furnish persuasive proof of the intended commission of the crime which is the object of the alleged conspiracy. The instant case is of the latter class.
The conversations related by the prohibition agents conclusively established a conspiracy rather widespread in its scope and large in its operation. That appellant and Abe Sutton were conducting what was in reality an extensive liquor business in Chicago, under the guise and name of a poolroom, is not only clearly established by the eavesdroppers, but this conclusion is strongly corroborated by the statements of the two truck drivers who testified to hauling large truckloads of liquor and to being paid by one of the conspirators in the presence of the other. Such evidence which established the overt act also furnished well nigh conclusive evidence of Morton's participation in the conspiracy. The receiving and giving of orders for the purchase of large quantities of liquor, paying the truck driver therefor, receiving orders for its distribution, the naming of price and arranging for delivery may all be evidence gathered at a single time, through a single conversation. Yet, it obviously supports, in fact it conclusively establishes, guilty participation in an existing unlawful enterprise, to-wit, a criminal conspiracy.
Objections to the reception of evidence given by the prohibition agents, who tapped the wires of appellant's place of business in order that conversations might be heard, are directed largely to the asserted inability of the agents to identify the voices of appellant and his associate, Sutton. Two of the prohibition agents stated that they "hung around" the Monte Carlo poolroom and became familiar with the voices of appellant and Sutton. When they became certain of the voices, they tapped the wires and "listened in" on the conversations. They stated they recognized the voice of appellant when he spoke and further that he came to the phone at times when he was called. Likewise, the conversations frequently began with the inquiry as to who was speaking, and the reply was "Paul Morton." The same was true as to Abe Sutton. However, two other prohibition agents stated that they did not know the voices of either. They, however, were present and listened to the conversations, and their testimony was offered and properly received in corroboration of the substance of the conversations, if not of the identity of the speaker.
Moreover, the groundwork had been laid for the admission of this testimony even though the witness could not recognize Morton's voice. The weight of such testimony was for the jury. Its admissibility presents quite a different question. Reason and authority, we think, support the position that when it appears that a certain place is being operated by an individual whose name is known and the telephone wires leading to such place are tapped so that the listeners-in hear the conversation taking place at such place of business, and it further appears that the listener hears one called for by a given name and a question then put "Are you John Smith?" and the response to it "Yes, I am John Smith," the identification is sufficient to justify the reception of the evidence. Its weight, however, is for the jury to decide.
While the authorities are not in harmony,*fn1 the trend of the decisions as stated in Jones' Commentaries on Evidence, § 810, is in favor of the reception of such evidence.
The conflicting decisions might be partly reconciled upon the different fact situations disclosed. In the instant case, other agents who listened in recognized the speaker's voice with which they were familiar. The testimony of the agents who did not recognize the speaker's voice was therefore admissible as corroborative of the substance of the conversations to which the other witnesses had testified. True, there was a momentary lapse in the eavesdropping, but it was hardly probable that another had succeeded appellant on the phone. Competency of testimony is not determined in all cases by rules which define with meticulous accuracy the line that separates rejected from admissible evidence. The trier of fact is seeking the truth. Evidence is receivable to establish the truth. Rules governing materiality and competency are founded on reason and experience. When the circumstances are such as to attest, with reasonable degree of assurance, the worthiness of such evidence, it is competent. Courts can never certify to the verity of the evidence received. They preliminarily pass on its admissibility and leave the jury determine its weight. Certain rules are well recognized, such as hearsay, best evidence, admissions, etc. There are, however, other rules wherein the boundary lines are lodged in a twilight zone -- when the court's ruling must depend upon what Professor Wigmore aptly calls "circumstantial trustworthiness." Cub Fork Coal Co. v. Fairmount Glass Co. (C.C.A.) 19 F.2d 273. We therefore conclude that the rule stated in Jones' Commentaries on Evidence should govern the admissibility of such evidence and leave it, when admitted, to the fact finder (jury or court) to determine its weight.
Appellant complains because not permitted to inquire of the government witnesses, the prohibition agents, whether they knew it was against the law of Illinois (chapter 134, par. 21, Cahill's Ill. Rev. Stat. 1931), to tap telephone wires that private conversations might be heard and used against the speaker. Appellant asserts, while appellee denies, error in the limitation placed on the cross-examination of the government witnesses in this respect. ...