Opposition Brief — Fredrick v. United States

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Statute and regulations involved__.................. 3

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CITATIONS

Cases:

Armstrong v. United States, 16 F. 2d 62, certiorari denied,

PEE Wit arak nine buen dihewdscumus ct ore 12

ee wees, Me DO ea ee 12

Crain v. United States, 162 U.S. 625.._......_..._ 12

Friedman v. United States, 276 Fed. 792_......._. 9

Funk v. United States, 66 F. 2d 70, reversed on other

sc peapeopig. Renegunly Mca oo Ee NER CE a eae 9

Grand Trunk Ry. Co v. United States, 229 Fed. 116, certiorari

- cet sgn appa be cig sag OO EO TERRE LEGS 9

Hirabayashi v. United States, 320 U.S. 81__-__._...______ 15

Jones v. United States, 72 F.2d 873__............_ 9

Muncy v. United States, 289 Fed. 780............ 12

Pines v. United States, 123 F.2d 825_........... 12

Pinkerton v. United States, 328 U.8.640......_... 15

Randall v. United States, 148 F. 2d 234, certiorari denied,

once Hts ohn on OS CTA RRMA RATA EMD 9

Stine v. United States, 32 F.2d 742............ 9

United States v. Coz, 147 F. 2d 587, certiorari denied, 325

AR sAbbinnssxe tne thaknadkersemcercncs cS 9

Van Dam v. United States, 23 F.2d 235... 9

Walker v. United States, 7 F.2d 309............ 12

Statutes and regulations:

Act of June 28, 1940, c. 440, 54 Stat. 676, as amended by the

Act of May 31, 1941, c. 157, 55 Stat. 236, and by Title III

of the Second War Powers Act of March 27, 1942, c. 199,

56 Stat. 177 (50 U.S. C. App., Supp. V, 633, 1152):

8, SORES RS Ea 3

EE IE iin in vidw shrines catnwalediitns xg tue 3,5

ot | See eee eens 4

Criminal Code, Sec. 332 (18 U. 8. C. ee A il

General Ration Order No. 8, as amended (8 F. R. 3783;

8 F. R. 9626; 9 F. R. 1325; 9 F. R. 2746):

i EE EEE ONSEN DRGs OEP eR 13

irs ob4tan ces Apsideadmainndndu cca cos the 4, 5,9

NK nen etintncsakiedticbgiie sx 6 Sele 4, 5,9

Miscellaneous:

Rule 7 (e), Federal Rules of Criminal Procedure__._____. 12

760832—47—_1 (1)

Gute Suprerteé Oartrt of the nited States

OcrosEeR TERM, 1947

No. 276

Wuuam H. Freprick aNp NATHAN GILBERT,

PETITIONERS

v. :

Untrep States of AMERICA

ON PETITION FOR.A WRIT OF CERTIORARI T THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the circuit court of appeals

(R. 399-423) * has not yet been reported.

JURISDICTION

The judgment of the circuit court of appeals

was entered July 18, 1947 (R. 424). The peti-

tion for a writ of certiorari was filed August 18,

1947. The jurisdiction of this Court is invoked

1 The record is in three volumes. The designation “R.” is

used herein to refer collectively to volumes 2 and 3, the

pagination of which is consecutive. References to volume 1,

where necessary, are indicated by the designation “1 R.”

(1)

2 3

under Section 240 (a) of the Judicial Code, os

amended by the Act of February 13, 1925. See

also Rules 37 (b) (2) and 45 (a), F. R. Crim. P,

1. Whether an allegation that unlawfully ae-

quired counterfeit ration stamps ‘‘purported to

be valid’ for a certain month was surplusage.

2. Whether proof that shortly following unlaw-

ful purchases of meat and sugar ration stamps by

the operators of a meat market large quantities of

counterfeit ration stamps of those categories were

deposited in the market’s bank account by an

employee of the market was admissible as further

evidence of the unlawful purchases and to prove

the counterfeit nature of the stamps purchased.

3. Whether the evidence is sufficient to sustain

petitioner Gilbert’s conviction of unlawfuly ac-

quiring counterfeit ration stamps.

4. Whether the information was duplicitous be-

cause it charged the acquisition of counterfeit and

forged ration stamps, the stamps in question being

counterfeit, not forged.

5. Whether it was within the trial court’s dis-

cretion to grant the Government’s motion, made

near the close of the Government’s case, to amend

the information by substituting the words “ration

documents’? for ‘‘ration coupons,’’ thereby cor-

recting a technical misdescription of the docu-

ments involved.

3

§. Whether the trial court erred in its instruc-

tions to the jury.

STATUTE AND REGULATIONS INVOLVED

The Act of June 28, 1940, c. 440, 54 Stat. 676,

as amended by the Act of May 31, 1941, ¢. 157,

55 Stat. 236, and by Title III of the Second War

Powers Act of March 27, 1942, ¢. 199, 56 Stat. 177

(50 U. S. C. App., Supp. V, 633, 1152), provides

in pertinent part: , .

Src. 2 (a) (2). * * * Whenever the

President is satisfied that the fulfillment of

requirements for the defense of the United

States will result in a shortage in the sup-

ply of any material or of any facilities for

defense or for private account or for export,

the President may allocate such material or

facilities in such manner, upon such con-

ditions and to such extent as he shall deem

necessary or appropriate in the public in-

terest and to promote the national defense.

* * a * *

Sec. 2 (a) (5). Any person who will-

fully performs any act prohibited, or will-

fully fails to perform any act required by,

any provision of this subsection (a) or any

rule, regulation, or order thereunder,

whether heretofore or hereafter issued,

shall be guilty of a misdemeanor, and shall,

upon conviction, be fined not more than

$10,000 or imprisoned for not more than

one year, or both.

* * * * *

4

Sec. 2 (a) (8). The President may exer-

cise any power, authority, or discretion

conferred on him by this subsection (a),

through such department, agency, or officer

of the Government as he may direct and

in conformity with any rules or regulations

which he may prescribe.

Sections 2.5 and 2.6 of General Ration Order

No. 8, as amended (8 F. R. 3783; 8 F. R. 9626; 9

F. R. 1325, 9 F. R. 2746), provided in pertinent

part during May 1945, when the offenses charged

were allegedly committed:

Section 2.5. acquisition, use, transfer or

possession of counterfeited or forged ration

document.—(a) No person shall acquire,

use, permit the use of, transfer, possess or

control any counterfeited or forged ration

document under circumstances which would

be in violation of section 2.6 if the docu-

ment were genuine or if he knows or has

reason to believe that it is counterfeited or

forged.

SEcTION 2.6. Acquisition, use, transfer, or

possession of ration document.—No person

shall acquire, use, permit the use of, possess

or control a ration document except the per-

son, or the agent of the person, to whom

such ration document was issued, or by

whom it was acquired in accordance with a

ration order or except as otherwise pro-

vided by a ration order. * * *

5

STATEMENT

' On January 22, 1946, an information in eleven

counts (1 R. 2-18) was filed in the District Court

for the Southern District of California charging

petitioners with violations of Section 2 (a) (5)

of the Act of June 28, 1940, as amended (supra,

p. 3) and Sections 2.5 and 2.6 of General Ration

Order No. 8 (supra, p. 4). The first eight

counts were dismissed with the consent of the

Government at the close of its case (R. 285)

and need not be considered. Counts 9 and 10

charged that in May 1945 petitioners acquired,

possessed, and controlled specified quantities of

“counterfeit and forged’? meat ration “‘coupons”’*

“purporting to be valid for the month of May,

1945” and that petitioners were not persons or

agents of persons to whom the coupons were

issued or by whom they were acquired in accord-

ance with any ration order, the coupons having

been acquired not in connection with any trans-

fers of food, but by purchase. Count 11 charged

a like offense involving sugar ration coupons.

Following a jury trial, petitioners were found

*On motion of the Government, made just prior to the

close of its case, the information was amended by the sub-

stitution of the word “documents” for “coupons” in counts 9,

10, and 11 (R. 273, 294), This amendment ic the subject of

one of the contentions of the petition for certiorari (infra,

pp. 12-13).

6

guilty on all three of these remaining counts

(1 R. 31). Petitioner Fredrick was sentenced

to six months’ imprisonment on each count, the

terms to run concurrently, and fined $2,500 on

each of counts 9 and 11. Petitioner Gilbert was

sentenced to 90 days’ imprisonment on each count,

the terms to run concurrently, and fined $1,250

on each of counts 9 and 11. Execution of both

sentences of imprisonment was suspended and

petitioners were placed on probation for two

- years. (1 R. 36-39.) On appeal, the judgments .

of conviction were affirmed (R. 424).

The evidence adduced by the Government may

be summarized as follows:

Petitioners are partners who operate two meat

and grocery markets known as Hollywood Ranch

Market and Bill’s Ranch Market, located in

Hollywood and Burbank, California, respectively

(R. 302). Around the first week in April 1945,

. petitioner Gilbert inquired of one Max Jones if

he knew where Gilbert ‘‘could get meat stamps.”

Jones replied that he ‘‘didn’t know at the present

time’”’ but that he ‘“‘would find out.’’ Gilbert

told Jones that he “could use some’’ if Jones

“*‘ecould get some.”’ (R. 134-135.)

Several days later Jones introduced one Al

Becker to Gilbert and told Gilbert that Becker

“might be able to locate some ration points for

him”’ (R. 136-137, 157). Jones asked Gilbert

how many ‘points’? he needed and Gilbert re-

7

plied, ‘‘Approximately 100,000.” Becker told

Gilbert that he would try to get them for him.

(R. 157-158.) Thereafter, having learned of a

source of ‘‘red points,’’ Becker telephoned Gil-

bert to inquire if he “‘stili wanted his points’’

and Gilbert advised tha€ he did (R. 187-188).

A week or two later, Becker took a “‘ package of

[100,000] points’’ to Gilbert at Bill’s Ranch Mar-

ket, but Gilbert directed Becker to go to the

Hollywood Ranch Market and ‘‘ask for Bill Fred-

rick’’ (R. 158-159, 194). Becker then went to the

Hollywood Market, showed petitioner Fredrick a

number of envelopes, and told him that ‘‘those

were the points that he wanted.’’ After examin-

ing the stamps contained in several of the

envelopes, Fredrick said that he “didn’t know

* * * whether they were good or bad or what

they were,” and expressed a desire to “‘check”’

them. Accordingly, Becker left with Fredrick as

samples a number of the stamps, which were ‘‘red

points’. (R. 159-161, 166.)

Several weeks later, following several telephone

conversations in which Fredrick told Becker

that he was still ‘‘checking’’ the stamps (R. 161),

Becker again visited Fredrick. This time Fred-

rick purchased 6,000 meat ration stamps, repre-

senting 60,000 points, for $600 (R. 162-164, 166).

A few weeks later Fredrick purchased from

Becker approximately 20,000 additional meat ra-

tion stamps, representing 200,000, points, and an

760882472

8

“envelope of sugar stamps,” all for approxi-

mately $2,000 (R. 164-167).

A month or six weeks following Becker’s intro-

duction to petitioner Gilbert by Jones, Gilbert

complained to Jones that ‘‘the stamps that they

had gotten from Becker * * * had turned

out to be counterfeits” (R. 137-138).

Alma Keevy, a clerk in the O. P. A. verification

center in San Francisco (R. 40-41), testified that

some 8,000 out of 14,000 meat ration stamps

(Gov. Exs. 1-18, R. 29-31, 90) and 3,500 out of

3,800 sugar ration stamps (Gov. Exs. 21-28, R.

59, 92) deposited by the Hollywood Ranch Market

in the Hollywood State Bank in May 1945 (R.

27-38, 59-60, 87-88, 91-92) were counterfeit (R.

58, 62).

Thaddeus Loud, an agent of the O. P. A. Cur-

rency Protection Branch (R, 230), testified that

some 20,000 out of 41,000 additional meat ration

stamps (Gov. Ex. 34, R. 95, 250) deposited by the

- same market in the same bank later in May 1945

(R, 99, 234, 243) were also counterfeit (R, 243).

ARGUMENT

1. Petitioners contend that the Government's

proof of the charges contained in counts 9 and

10 was defective because it was not established

that the meat-ration stamps involved in those

counts “‘purported to be valid for the month of

May 1945,’’ as alleged (Pet. 3, 5, 18-19). How-

ever, this allegation of the two counts was sur-

9

plusage in describing the stamps involved. The

Government was required to establish only the

essential elements of the offenses, viz., that peti-

tioners acquired counterfeit ration documents,

not being persons or the agents of persons to

whom the documents were issued or by whom

they were acquired in accordance with a ration

order (Section 2.5 and 2.6 of General Ration

Order No. 8, supra, p. 4). Cf. Randall v.

United States, 148 F. 2d 234, 235 (C. C. A. 5),

certiorari denied, 325 U. 8. 885; United States v.

Coz, 147 F. 2d 587, 588-589 (C. C. A. 7), cer-

tiorari denied, 325 U. S, 858. Nonessential alle-

gations of an indictment or information, i. e.,

surplusage, need not be proved. Jones v. United

States, 72 F. 2d 873 (C. C. A. 7); Funk v. United

States, 66 F. 2d 70 (C. C. A. 4), reversed on

other grounds, 290 U. S. 371; Stine v. United

States, 32 F. 2d 742, 743-744 (C. C. A. 8); Van

Dam v. United States, 23 F. 2d 235, 238 (C. C.

A. 6); Friedman v. United States, 276 Fed. 792,

795-796 (C. C. A. 2); Grand Trunk Ry. Co. v.

United States, 229 Fed. 116, 119 (C. C. A. 7),

certiorari denied, 241 U. S. 681.

* The trial court, it is true, charged the jury that the pros-

ecution was required to prove beyond a reasonable doubt

that the stamps involved in counts 9 and 10 purported to be

valid for the month of May 1945 (R. 379), but this instruc-

tion was, in consequence of the rule stated in the text, more

favorable to petitioners than was required: In any event,

the counterfeit meat-ration stamps found in petitioners’

bank account, which were deposited in May 1945 (see supra,

10

2. Petitioners contend (Pet. 3-4, 5, 20-22)

that it was error for the trial court to refuse to

strike the testimony and exhibits introduced by

the Government to show that vast quantities of

counterfeit meat and sugar ration stamps were

deposited by the Hollywood Ranch Market in

the Hollywood State Bank in May 1945 (supra,

p. 8). The basis of this contention is that

the evidence showed that these deposits were

made, not by petitioners or either of them, but

by one Freeman, the office manager of the Holly-

wood Ranch Market (Pet. 21). Petitioners’

argument is clearly without merit. Freeman was

in the employ of petitioners, who operated the

Hollywood Ranch Market as partners. The evi-

dence that skortly following the unlawful pur-

chases of meat and sugar ration stamps by peti-

tioners from Becker large quantities of counter-

feit stamps of those categories turned up in peti-

tioners’ bank account was manifestly relevant, not

only to support Becker’s testimony as to the

sales, but also to show that the stamps so pur-

chased were counterfeit. Cf. R. 247-248.

3. Petitioner Gilbert contends that the evidence

is insufficient to sustain the verdict as to him

because he was not shown to have participated

p. 8), were in evidence (Gov. Exs. 1-18, R. 29-31, 90;

Gov. Ex. 34, R. 95, 250), and the O. P. A. order validating

their genuine counterparts for the month of May 1945 was

published at 10 F. R. 4715, thus providing a basis for judicial

notice of the fact of their validation for that month.

11

in the actual purchases (Pet. 4, 5, 23). The Gov-

ernment proved, however, that it was Gilbert who

first broached with the witness Jones the matter

of illicitly procuring ration stamps, that it was

Gilbert to whom Jones introduced Becker as a

man who might be able to help him, that it was

Gilbert who estimated to Becker the number of

stamps desired as ‘‘Approximately 100,000,”’ and

that it was Gilbert who told Becker that he ‘“‘still

wanted his points’’ when Becker called to tell

him he had located some stamps. When Becker

brought the stamps thus requested, moreover,

Gilbert referred Becker to his partner, Fredrick,

who completed the negotiations initiated by Gil-

bert by making the actual purchases. Finally,

Gilbert complained to Jones, following the dis-

covery of the scheme by the authorities, that the

stamps “‘had turned out to be counterfeits.’

(Supra, pp. 6-8.) It would be difficult to

imagine a clearer case of aiding and abetting, not

to mention procuring, the commission of an

offense (Section 332 of the Criminal Code, 18

U.S. C. 550).

4. Petitioners contend that the counts involved

should have been dismissed as duplicitous because

they charged the acquisition of counterfeit and

forged ration documents, whereas the documents

were in fact counterfeit, and not forged (Pet.

4, 5-6, 23-24). The contention is without merit,

since it was proper to allege in the conjunctive

both of the characteristics of such documents

12

specified in the ration order in the disjunctive.

See Crain v. United States, 162 U. 8S. 625, 636;

Pines v. United States, 123 F. 2d 825, 828-829

(C. C. A. 8).

5. Petitioners contend (Pet. 4, 6, 25-28) that

the trial court erred in granting the Govern-

ment’s motion, made just prior to the close of

the Government’s case, to amend the information

by substituting the word ‘‘documents’’ for ‘‘cou-

pons’”’ in counts 9, 10, and 11 (see note 2, supra,

p. 5). It is well settled, however, that an infor-

mation, being drawn by the United States At-

torney and not founded on the oath of a grand

jury, may be amended by leave of court at any

time before verdict if no additional or different

offense is charged and if substantial rights of

the defendant are not prejudiced. Armstrong Vv.

United States, 16 F. 2d 62, 64 (C. C. A. 9), cer-

tiorari denied, 273 U. S. 766; Walker v. United

_ States, 7 F. 2d 309, 311 (C. C. A. 9); Muncy v.

United States, 289 Fed. 780, 781 (C. C. A. 4);

Rule 7 (e), F. R. Crim. P.‘; ef. Ea parte Bain,

121 U. 8.1, 6. The occasion for the amendment

in this case was the fact that, as elicited on cross-

examination of government witness Loud (R. 268-

273), the documents involved were, technically

*The Federal Rules of Criminal Procedure took effect on

March 21, 1946, following the trial in the instant.case. The

Advisory Committee’s note to Rule 7 (e) points out, however,

that “This rule continues the existing law that, unlike an

indictment, an information may be amended.”

13

speaking, ration stamps rather than ration cou-

pons. The amendment accordingly substituted

the generie word “documents” for ‘coupons.’

There was at no time during the trial any ques-

tion as to the nature of the ration documents

involved in this case. As the court below pointed

out (R. 415), it was clearly within the discretion

of the trial court to permit the purely technical

misdescription of the stamps as “‘coupons”’ to be

corrected.” is aus.

6. Petitioners finally contend that the trial

court erred in its instructions to the jury in twelve

specified respects (Pet. 28-35). Petitioners took

no exception, however, to any of these instructions

(see Pet. 34) except the one which they discuss

under their point 11 (Pet. 34-35). In respect of

this instruction, it was not clear to the court, nor

is it clear to us, to what petitioners’ counsel was

excepting. In any event, this instruction and the

others criticized by petitioners seem to us to be

so clearly correct as not to justify discussion of

them here, except in respect of the instruction dis-

cussed by petitioners under their point 2 (Pet. 30-

31). That instruction, in pertinent part, was as

follows: “‘* * * if you believe that either

defendant * * * committed any offense

*Contrary to petitioners’ assertion that “the term ‘docu-

ment’ is nowhere defined in any of the ration orders—it could

mean anything” (Pet. 28), Section 1.2 of General Ration

Order No. 8, defined “ration document” to mean “* * *

stamp, * * * coupon, * * *” (8 F. R. 3783).

14

or * * * aided or abetted in the commission

of the offense * * *, thenhe * * * should

be convicted. * * *’? (R. 393). Petitioners

criticize this instruction on the ground that it

permitted the jury to convict if they found that

petitioners committed any offense, whether

charged in the information or not. When this

instruction is considered in the context of the in-

struction as a whole, however, there was no possi-

bility that the jury might have entertained any

such misapprehension as petitioners now suggest.

The instruction now criticized was given to the

jury when, after having retired to consider their

verdict, they returned to the courtroom and asked

for additional instructions on a matter of fact

concerning counts 9 and 10 (R. 391-392). The

eourt stated that questions of fact were for the

jury to decide and then reiterated some of his

earlier general instructions (R. 392-393). Pre-

viously, in the course of his main instructions,

given before submission. of the case to the

jury, the trial judge had made it entirely

clear to them that in order to convict peti-

tioners on any of the three counts submitted to

them, they were required to find petitioners guilty

of the precise offense charged in that count (R.

372-374, 377-380). Manifestly, therefore, the

judge’s reference to ‘‘any offense’’ in the above

quoted supplementary instruction now com-

plained of meant any of the offenses charged in

the three counts submitted to the jury; this refer-

15

ence could not possibly have had the effect, now

suggested by petitioners, of misleading the jury

as to the nature of their function.‘

CONCLUSION

The petition for a writ of certiorari presents

no question warranting further review by this

Court. We therefore respectfully submit that it

should be denied.

J Puuip B. Peritman,

Solicitor General.

T. VINCENT QUINN,

Assistant Attorney General.

J / Rosert 8. Erpaut,

Puiuie R. MonaHan,

Attorneys.

SEPTEMBER 1947,

* Petitioners also contend that counts 10 and 11, alleging

acquisitions of meat and sugar ration stamps, respectively,

charged but one offense because these stamps were purchased

in a single transaction (Pet. 4, 6, 24). The suspended im-

prisonment sentences of both petitioners on all three counts

were made to run concurrently, however, and fines were not

imposed on count 10 (supra, p. 6). Consequently, it is un-

necessary to consider thé merits Gf this contention. Pinker-

ton v. United States, 328 U. S. 640, 641-642, note 1; Hira-

bayashi v. United States, 320 U.S. 81, 85, 105.

U. S GOVERNMENT PRINTING OFFICE I942