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UNITED STATES v. 146

May 5, 1933

UNITED STATES
v.
146,157 GALLONS OF ALCOHOL (Frank RIZZO, Claimant); THE EVELYN; THE DORIS; THE HELEN



The opinion of the court was delivered by: FORMAN

The facts in the above causes are stated to some extent in the memorandum heretofore filed herein on March 22, 1933 ([D.C.] 2 F. Supp. 911).

The matters were brought on for final hearing, and proofs were offered as to the ownership of the alcohol by the claimant Rizzo and as to the boats by the claimant Matoil Service Company, Inc.

 As to the 146,157 Gallons of Alcohol.

 The sole question involved here is: Has the claimant Rizzo established his status as a bona fide owner of the said alcohol?

 The claimant took the stand and produced certain documents indicating the transfer to him of the charters covering these boats together with "what was on deck and below deck" as he put it.

 He stated that this transaction was had with a Mr. Rogers. He paid $5,000 as an installment on a total consideration of $26,000. As part of the $5,000 installment he borrowed $1,000 from Harry Goldberg, $1,500 from Tony Lombardo, and $1,000 from Sam Calamano. The balance he paid from his own funds.

 He alleged that he was the owner of the cargo aboard the Doris and in fact after his negotiations accompanied all three vessels on their voyage from Nyack to Port Johnson, in what capacity is not clear, but, as he says, "Just took a joy ride." Record, p. 483.

 He produced several witnesses, employees about the dock at Port Johnson, who testified that on several occasions he was seen about the boats as if in charge, and Captain Walsh, in charge of the dock, gave it as his information that Rizzo was in charge of the boats and actually paid wharfage for them.

 In response to numerous questions as to the cargo of the Doris and other particulars he replied that he refused to answer on the ground that he might incriminate himself.

 The claimant's only occupation had been that of a seaman at $80 per month. He had, however, not recently pursued this calling, deriving his income from gambling at cards and on race horses.

 In connection with the so-called documents of title it is important to note that the alleged assignment to the claimant reads as follows:

 "(Exhibit C-17.)

 "November 22, 1932.

 "In consideration of the sum of one dollar and other good and valuable consideration to me in hand paid I hereby assign all my right, title and interest in the charter on the other side to Tow Barge Doris to Frank Rizzo of Bayonne, N.J.

 "Rogers Oil and Supply Co.

 "George Rogers, Pres.

 The assignments of the charters of the other two vessels are in identical language.

 Although the claimant alleges that he became possessed thereby of everything on and below decks, there is nothing in the language of the assignment indicating a transfer of the cargo to him.

 He did not know the whereabouts of Mr. Rogers, who had negotiated with him concerning this cargo (the value of which might well run into the hundreds of thousands of dollars), nor did he know the whereabouts of his friends, Harry Goldberg, from whom he had borrowed $1,000, Tony Lombardo $1,500, or Sam Calamano another $1,000, notwithstanding the fact that they practically capitalized the venture for him.

 The very essence of the status of the claimant is his good faith. He has sworn in his claim that he is the true and bona fide owner of this alcohol.

 In substantiation of his claim he tells a weird story peopled by disappearing characters, and then, although claiming under oath the cargo of alcohol, in so many words, when cross-examined upon the subject, he seeks refuge in the stereotyped reply "I refuse to answer because it may incriminate me."

 In this connection his counsel argues "that it was the plain duty of the Court to ascertain the merit of the refusal."

 Counsel cites an excerpt from the decision of Chief Justice Marshall in the case of United States v. Aaron Burr, 25 Fed. Cas. page 38 et seq., case No. 14,692e but unhappily is misled by reading too meagerly from the opinion.

 Following is the language of the Chief Justice, and the italicized portion is the phraseology counsel failed to quote: "When a question is propounded it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. It follows necessarily then * * * that if the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that ...


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