Opposition Brief — Cain v. United States

Page

ee ee ee aches .d Weenie wre e alate ee 1

Jurisdiction ———— _- ag eee eet AS nea ee nN nati 1

Questions presented. - Geri ets hoe aon nan arene wis aa aaa a 2

Statutes and regulations inv olv ol ea eee tine anton 8 2

IR on par ne aes oon enemies Robes sees See SS Cer sete 3

NE a digits xbard wna.) naw eee Ser See ee Oo eo eee 8

Conclusion __ __-.- ha nsdacaban iat alia Gee ia ea oer is 14

CITATIONS

Cases:

Beland v. Pyeng Siates, 100 F. 2d 289, certiorari denied,

RE Setateyeen Bt Soenca se eyteosctn Sao ony eee aoa ee apy: 10

Pe v. United States, “317 U. 49. es 9

Center v. United States, 96 F. 2d a 10

Culp vy. Unived Mates, 131 F. 20 938__....-...-....-- 2 10

Deacon v. United States, 124 F. 2d 352 12

Delaney v. United States, 263 U. 8. 586_- rats 13

Dowdy v. United States, 46 F. 2d 417 2 12

Haynes v. United States, 4 F. 2d 889, certiorari denied. 268

U.S. 703..- Sheet Bes A BE Ree et mg S28 Sip am pe 10

Hill v. United States, 42 F. 2d 812, certiorari denied, 282

D: ; W6 ccs ase mee tae! 10

Jelke v. United States, 255 Fed. 264 As 10

Miller v. United States, 125 F. 2d 517, certiorari denied,

316 U. S. 687_- 10

Pierce v. United States, 252 U. S. 239.............- : 10

Pullin v. United States, 104 F. 2d 57, certiorari denied, 308

U. 8. 552.. .- re et ne) ee ee = 10

Rudner v. United States, 281 Fed. 516, certiorari denied, 260

Uy. Fee ze. ; Ea! ee i 12

United States v. Harding, 81 F. 2d 563__- . 12

United States v. Johnson, 319 U. 8S. 503__-_____-- 13

Statutes and regulation:

Emergency Price Control Act of 1942, as amended , (56

Stat. 23; 58 Stat. 632; 50 U.S. C. App., Supp. V, 901 et

seq.):

SE A re oo ot aed neato eae ew oi . 4,9, ti

MC EM co co ch capdoe yaoi e eae 3,9

Section 37 of the Criminal Code (18 U. 8. C. 88)__-_----- 2

Maximum Price Regulation No. 445 (8 : R. 11161-11174)_ 3

(I)

717041—46

Gnthe Supreme Court of the Wnited States

OcToBER TERM, 1946

No. 474

Burt CAIN, PETITIONER

v.

UnitTep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE NINTH

CIROUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the circuit court of appeals

(R. 326-331) is reported at 156 F. 2d 8.

JURISDICTION

The judgment of the circuit court of appeals

was entered May 16, 1946 (R. 332), and a petition

for rehearing was denied July 16, 1946 (R. 333).

On August 6, 1946, the Chief Justice extended

the time for filing a petition for a writ of certio-

rari to September 14, 1946. The petition for

(1)

2

a writ of certiorari was filed September 7, 1946.

The jurisdiction of this Court is invoked under

Section 240 (a) of the Judicial Code, as amended

by the Act of February 13, 1925. See also Rules

37 (b) (2) and 45 (a) of the Federal Rules of

Criminal Procedure.

QUESTIONS PRESENTED

1. Whether the indictment is duplicitous.

2. Whether the indictment charges that the de-

fendants jointly committed substantive offenses,

rather than that they conspired to commit such

offenses.

3. Whether there was a fatal variance between

the indictment and the proof.

4. Whether the evidence is sufficient to support

the finding that petitioner joined the conspiracy

charged in the indictment.

STATUTES AND REGULATIONS INVOLVED

Section 37 of the Criminal Code (18 U. S. C.

88) provides:

If two or more persons conspire either to

commit any offense against the United

States, or to defraud the United States in

any manner or for any purpose, and one or

more of such parties do any act to effect

the object of the conspiracy, each of the

parties to such conspiracy shall be fined not

more than $10,000, or imprisoned not more

than two years, or both.

The pertinent provisions of the Emergency

Price Control Act of 1942, as amended (56 Stat.

RS

est

3

23; 58 Stat. 632; 50 U. S. C. App., Supp. V, 901

et seq.), read as follows:

Sec. 4 (a) (50 U. S. C. App., Supp. V,

904 (a)). It shall be unlawful, regardless

of any contract, agreement, lease, or other

obligation heretofore or hereafter entered

into, for any person to sell or deliver any

commodity * * * in violation of any

regulation or order under section 2, or of

any price schedule effective in accordance

with the provisions of section 206, or of any

regulation, order, or requirement under

section 202 (b) or section 205 (f), or to

offer, solicit, attempt, or agree to do any

of the foregoing.

Sec. 205 (b) (50 U.S. C. App., Supp. V,

925 (b)). Any person who willfully vio-

lates any provision of section 4 of this

Act * * * shall, upon — conviction

thereof, be subject to a fine of not more

than $5,000, or to imprisonment for not

more than two years in the case of a viola-

tion of section 4 (c) and for not more than

one year in all other cases, or to both such

fine and imprisonment. * * *

Maximum Price Regulation No. 445, which

established maximum prices for distilled spirits

and wines, is printed at 8 F. R. 11161-11174.

STATEMENT

A single count indictment was returned in the

District Court for the Northern District of Cali-

fornia on December 20, 1944, charging that peti-

tioner and Charles Malaby, Nathan Newman,

4

W.O. Files, R. H. Shaffer, Oscar R. Lowenthal,

and Primo Rocco “did * * * conspire and

agree * * * to commit offenses against the

laws of the United States, to-wit, offenses in viola-

tion of Title 50 United States Code, Appendix, Sec-

tions 904a-925, by wilfully selling and delivering

and by wilfully offering to sell and deliver, * * *

distilled spirits (whiskey), at prices over and in

excess of the maximum prices duly established

by the Price Administrator * * *.”” Nine

overt acts in furtherance of the conspiracy were

set out, the first of which was alleged to have been

committed March 10, 1944, and the last, May 24,

1944. (R. 2-4.) After a trial before the court

without a jury, petitioner, Newman, Files, Shaf-

fer, and Lowenthal were found guilty (R. 13-14)’

These defendants then moved in arrest of judg-

ment on the ground that the indictment ‘‘does not

state facts sufficient to constitute a violation of

Title 18, United States Code, Section 88, a con-

spiracy to violate title 50 to the United States

Code, Appendix Section 904a-925”’; the motions

were denied (R. 315-317). Petitioner and New-

man were each sentenced to imprisonment for one

year and a day and to pay a fine of $10,000 (R. 14,

17, 22-25, 317). Files, Shaffer, and Lowenthal

were each sentenced to imprisonment for nine

1Malaby pleaded guilty and the case was severed as to

Rocco (R. 10). It appears that Rocco subsequently pleaded

guilty (see R. 326).

5

months and to pay a fine of $5,000 (R. 15-16,

18-21, 317). Petitioner, together with Newman,

Files, and Shaffer, appealed to the Circuit Court

of Appeals for the Ninth Circuit, and the judg-

ments of conviction were affirmed (R. 326-332).

The evidence bearing upon petitioner’s conten-

tions may be summarized as follows:

In the spring of 1944, numerous tavern keepers

in California entered into contracts to purchase

whiskey through the defendants Malaby and

Lowenthal at prices in excess of the applicable

ceiling prices. The whiskey was to be delivered

by the International Import Company (R. 86-92,

93-95, 99, 100-101, 102-103, 104-110, 117-118,

118-121, 121-123, 124-126, 130-132, 132-135,

137-138, 141-142, 143-145, 145-146, 149, 150-153,

154-155, 156-157, 160-162, 164-167, 168-171,

174-176).

Malaby, who had pleaded guilty (R. 183),

testified on behalf of the Government that in

January 1944, he had spoken to defendant Nathan

Newman in Los Angeles about “going into the

whiskey business.’’ They intended to sell whiskey

at over ceiling prices. Morris Newman, Nathan’s

brother, stated that he ‘‘could go back east and

get some whiskey.’’ (R. 186, 188, 213, 233-234.)

Malaby and the Newmans then went to San Fran-

cisco to see whether they could secure the services

of a wholesaler to handle the whiskey they hoped

to obtain from the east. In this connection, they

6

met defendant Shaffer, who looked around for a

wholesaler. In February they arranged to sell

to two persons a large quantity of whiskey at

prices in excess of the ceiling prices. These per-

sons agreed to deposit in escrow the portion of

the price in excess of the ceiling price, and Shaf-

fer obtained the services of the defendant Files

to act as an escrow holder for a commission.

Some $16,500 was deposited by the proposed pur-

chasers (R. 192), and this was used by the con-

spirators to finance their operations. (R. 187-

190.)

After these transactions, Nathan Newman

telephoned Malaby from Los Angeles in March

and told Malaby that he had secured a wholesaler

in Los Angeles. Malaby then went to the office

of the International Import Company in Los

Angeles, where Newman introduced him to pe-

titioner. Petitioner said that he had ‘“‘heard a

lot about’? Malaby. The next day Malaby re-

turned and asked petitioner to give him ‘‘two

letters of credentials, to show people that I was

representing International Import Company.”’

Petitioner gave him such letters on March 22.

Malaby testified that petitioner ‘‘was familiar”

with the fact that there had already been collected

the portion of the purchase price in excess of

the ceiling price in two transactions; that he also

diseussed with petitioner ‘‘the fact that Morrie

Newman had contacted the Midvalley Distillery

7

back east, and we were going to buy a franchise

from them * * * to handle their liquor in

* * * California, and I was to come back up

north and sell the liquor * * *. The overage

that was collected was supposed to be sent down

to the office in Los Angeles * * *.’’ (R. 191-

193, 200.) Malaby also testified that he discussed

with petitioner the prices at which he (Malaby)

had been soliciting orders; ‘‘I told him I was

getting $55 to $57 a case and that maybe I could

get $60, and he said that was fine, but to be care-

ful’ (R. 194). Following these conversations,

Malaby returned to San Francisco with the cre-

dential letters, and also with order blanks which

petitioner had given him. There he continued ‘‘in

the same line of activity as theretofore.”” (R.

194-195.) He testified that he went to Los An-

geles every few weeks and on those occasions

discussed with petitioner the ‘‘amounts of overage

that had been collected’’ (R. 200, 213; see also

R. 218-220, 224).

Malaby testified further that petitioner dis-

charged him about July 18, 1944, In this con-

nection, petitioner told Malaby that the “‘ATU

was checking up and it was going to look bad

for him [petitioner], and that we had to keep

him in the clear; and it would be better if he

wrote me a letter and asked me to resign until

this trouble was over.’”’ (R. 217.)

8

Petitioner testified that he had been engaged

in the wholesale iquor business under the name

of the International Import Company; that he

had obtained a wholesaler’s license on March

6, 1944; that he had a talk with the Newmans

in ‘“‘the middle of ,March’’ concerning the sale

of whiskey to be obtained from the Midvalley

Distilling Corporation; and that subsequently he

ordered a car of whiskey from that corporation

(R. 270-271, 279). He employed Nathan Newman

as sales manager and Malaby as a commission

salesman (R. 271). Petitioner denied that he

knew anything about the scheme to sell the

whiskey at illegal prices, that he ever had any

conversation with Newman or Malaby on the

subject, and that he ever received any ‘‘overage”’

(R. 271, 275, 277, 282, 288-289). He testified

that as soon as he learned that the whiskey was

being sold at illegal prices, he questioned Malaby,

and discharged him (R. 272-273, 275).

ARGUMENT

1. Petitioner contends (Pet. 6-7, 19, ' 21-23)

that the indictment is duplicitous for the reason

that it charges a conspiracy to violate more than

a single section of the Emergency Price Control

Act. The contention rests on the language of

the indictment that the defendants conspired to

violate ‘*Title 50 United States Code, Appendix,

Sections 904a-925, by wilfully selling and deliver-

a ato

9

ing and by wilfully offering to sell and deliver’’

whiskey at prices above the applicable maximum

prices (R. 2). Petitioner’s argument is that this

language charges a conspiracy to violate each

section from section 904 (a) through section 925,

or, at the minimum, sections 904 (a) and 925.

This contention is frivolous. In the first place,

it is clear that the indictment charges only a

conspiracy to commit acts which are made un-

lawful by section 904 (a); the allegation is that

the objective offenses contemplated by the con-

spiracy were, in the language of that section, to

sell and deliver and to offer to sell and deliver

whiskey at overceiling prices. The citation of

section 925 is merely a reference to the section

of the Act which prescribes the penalties for

acts and conduct prohibited by section 904. More-

over, an indictment charging in a single count a

eonspiracy to commit several crimes is not duplici-

tous, since the conspiracy is one crime, how-

ever diverse its objects. Braverman v. United

States, 317 U. S. 49, 54, and eases cited.

2. The eontention is also advanced (Pet. 9-10,

20, 40-48) that the indictment must be construed

as charging only the joint commission of sub-

stantive offenses rather than a conspiracy, the

argument being that ‘‘the charge is that the

defendants formed the conspiracy by selling and

delivering and by offering to sell and deliver.

There is no charge of any continuing conspiracy.

10

When the selling and delivering or the offering

to sell and deliver occurred, the substantive offense

(a misdemeanor) was actually committed; it

could not be a conspiracy to commit, but a joint

participation in the commission of the substantive

offense.’’ (Pet. 4445; italics as in the petition.)

We submit that a fair reading of the indict-

ment, in the light of well-settled principles, neg-

atives the construction urged by petitioner. An

indictment charging a conspiracy to violate a

criminal statute is sufficient if it alleges the con-

spiracy in the language of Section 37 of the

Criminal Code and contains such a description of

the object of the conspiracy as fairly and reason-

ably informs the defendants of the character of

the offense involved. Culp v. United States, 131

F. 2d 93, 99 (C. C. A. 8); Miller v. United States,

125 F. 2d 517, 518 (C. C. A. 6), certiorari denied,

316 U. S. 687; Pullin v. United States, 104 F. 2d

57 (C. C. A. 5), certiorari denied, 308 U. S. 552;

Beland v. United States, 100 F. 2d 289 (C. C. A.

5), certiorari denied, 306 U. S. 636; Center v.

United States, 96 F. 2d 127 (C. C. A. 4); Hill v.

United States, 42 F. 2d 812 (C. C. A. 4), certio-

rari denied, 282 U. S. 884; Jelke v. United States,

255 Fed. 264, 275 (C. C. A. 7). And the details

of the plan whereby the law is to be violated need

not be set forth. Pierce v. United States, 252

U. S. 239, 243-244; Haynes v. United States, 4

F. 2d 889 (C. C. A. 2), certiorari denied, 268

1l

U. S. 703. It is plain that the words “‘by wilfully

selling and delivering and by wilfully offering to

sell and deliver,’’ following, as they do, the words

“conspire * * * to commit offenses against

the laws of the United States, to-wit, offenses in

violation of Title 50 United States Code, Appen-

dix, Sections 904a-925,’’* merely serve to describe

the objects of the conspiracy and to inform the

defendants of the character of the offense with

which they were charged. Since the prosecution

was not required to allege the manner in which

the defendants conspired, it certainly cannot be

said that the use of the words relied upon by

petitioner shows that the conspiracy charge was

based upon the proposition that the defendants

were guilty of conspiracy only because they acted

together in the commission of a substantive of-

fense.

3. The further contention is made, as we under-

stand it (Pet. 7-9, 19-20, 23-40), that there is a

fatal variance between the indictment and the

proof in that the indictment alleged, in effect, a

conspiracy formed prior to March 10, 1944, where-

as the proof showed that petitioner, if he did be-

come a member of the conspiracy, did not do so

? To sell or deliver any commodity in violation of a price

regulation, or to offer to do so, are offenses in violation of

section 4 (a) of the Emergency Price Control Act, 50 U.S. C.

App., Supp. V, 904 (a), supra, p. 3.

12

until after that date (see pp. 5-7, supra);* he

argues that ‘““To make evidence admissible that:

[he] became a member of the conspiracy after it

was formed, the indictment must so allege’”’ (Pet.

35). The Government was not required, how-

ever, to show that petitioner was a member of the

conspiracy at its inception, for, as petitioner con-

cedes (Pet. 35), he would be guilty if the Govern-

ment established that he joined it thereafter.

See, e. g., Deacon v. United States, 124 F. 2d 352,

358-359 (C. C. A. 1); United States v. Harding,

81 F. 2d 563, 566-567 (App. D. C.); Dowdy v.

United States, 46 F. 2d 417, 423 (C. C. A. 4);

Rudner v. United States, 281 Fed. 516, 519-520

(C. C. A. 6), certiorari denied, 260 U. S. 734.

And, as said in United States v. Harding, supra,

at 566: ‘“‘It is not essential, in charging con-

spiracy, to show that all of the conspirators par-

ticipated in the conspiracy at its beginning.’”’ It

would seem plain that the time petitioner entered

the conspiracy was not a matter of pleading, but

one of evidence, and that, accordingly, the Gov-

ernment was entitled to prove that petitioner

entered the conspiracy after it was formed, with-

out any allegation in the indictment to that effect.

4, Petitioner’s final contention (Pet. 6, 10-13,

20, 49-52) is that the evidence is insufficient to

* The indictment (R. 2-4) does not specifically allege the

date when the conspiracy was formed. The earliest overt act

alleged occurred on March 10, 1944 (R. 3).

i

18

show that he joined the conspiracy. Two courts

have found that the evidence was sufficient in this

respect, and, under the circumstances, there is no

occasion for further review by this Court.

United States v. Johnson, 319 U. 8S. 503, 518;

Delaney v. United States, 263 U. 8. 586, 590.

But, in any event, the evidence in this regard,

which is summarized in the Statement, supra, pp.

5-7, is clearly adequate to support the finding

that petitioner joined the conspiracy ; as the court

below said in this connection, the contention ‘‘can

hardly be taken seriously’’ (R. 331). Malaby’s

testimony was direct evidence that petitioner

knew of the scheme to sell whiskey at illegal prices,

and that, with such knowledge, he became an ac-

tive participant in the scheme. While petitioner

testified to the contrary, the trier of the facts was,

of course, free to disbelieve his testimony and to

believe the testimony of Malaby.*

*The claim (Pet. 52-55) that the testimony of the pur-

chasers (supra, p. 5) was admitted against petitioner on the

theory that they were conspirators themselves is clearly with-

out support in the record. As the court below said, “There is

no warrant in the record for so broad a statement. The

theory was suggested by government counsel only once, when

a purchaser was asked concerning his knowledge of price ceil-

‘ings, i. e., that he knew an illegal transaction was being

negotiated [see R. 112]. At all other times evidence of con-

versations with purchasers was admitted under the theory

that it was evidence of the acts of a defendant committed in

furtherance of the conspiracy during its existence and subject

to a motion to strike ‘if not connected up’ ” [see, e. g., R. 87,

89, 97, 105] (R. 330).

eo OO EP > rY

ee

14

CONCLUSION

The case was correctly decided below. There

are no questions of importance or conflict of de-

cisions involved. We therefore respectfully sub-

mit that the petition for a writ of certiorari

should be denied.

/ J. Howarp McGrath,

Solicitor General.

THERON L. CaUDLE,

Assistant Attorney General.

Ropert 8. ERDAHL,

J LEon ULMAN,

Attorneys.

OcTOBER 1946.

U.S. GOVERNMENT PRINTING OFFICE: 1946