# Opposition Brief — Fredrick v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1947
- **Citation:** 332 U.S. 775

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1313%3A2. Public record. Not legal advice.