Opposition Brief — Rubinstein v. United States

tT I NTN SEES

INDEX

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; A. Events preceding the submission of the affidavit of

Ne: FB ak os oki noch bee senneuese eur 5

B. The affidavit submitted on February 2, 1943 (counts

ON nc ed ee ee 6

C. Evidence relating to the falsity of the affidavit of Febru-

es SS AS ec ee ee rane 7

D. The affidavit submitted on October 12, 1943 (counts 4

aa atc cdcacclegunscancs sch saaeneneen 1l

; E. Evidence relating to the falsity of the October affidavit_ 12

s F. Events subsequent to October 12, 1943__..___....--- 15

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STERN a RRC DIN GD RIE ered pee 24 ™

CITATIONS

Cases:

Chaplin v. United States, 157 F. 2d 697_.--.-.-...------ 20

Durland v. United States, 161 U. 8. 306__-_.-..._------- 21

Goodrich-Lockhart Co. v. Sears, 270 Fed. 971____-_-:----- 20

Keeler v. Fred T. Ley & Co., 65 F. 2d 499__-_..-..------ 20

Kreibich v. United States, 261 Fed. 168___.___-_---_----- 18

Peskoe v. United States, 330 U. S. 824_--_._------------- 16

Pinkerton v. United States, 328 U. S. 640____--_-_------- 24

Seven Cases v. United States, 239 U. 8. 510_.--___-___-_-- 19

Shell Qil Co. v. State Tire & Oil Co., 126 F. 2d 971__--_-_- 20

Singer v. United States, 323 U. S. 338______.----.------- 18

United States v. Bayer, 331 U. 8. 532_......--.--------- 24

United States v. Katz, 271 U.S. 354_._......----------- 24

United States v. Sullivan, No. 121, dec. January 19, 1948__-- 18

United States v. Uram, 148 F. 2d 187, certiorari denied sub

nom. Sohmer v. United States, 325 U.S. 875_---_-.---- 21

United States v. Zeuli, 137°F. 2d 845__....._-.-.-..___-- 23

Vulcan Metals Co. v. Simmons Mfg. Co., 248 Fed. 853,

certiorari denied, 247 U. 8. 507. .......-.-.-.-------- 20

Statute:

Selective Draft Act of 1917 (50 U. S. C. App. 201)___-..- 18

’ Selective Training and Service Act of 1940, c. 720, 54 Stat. 885:

Sec. 5 (50 U. 8. C. App. 305)........-.. ei Seg Dee 17

ee. 2h O00 0. B: Cr Ape B11) ose. see 3, 15, 17

_ Selective Service Regulations:

EIR AS gear es gE RG Spray seat gS 17

RI Sa okt es ok eee Coe Cee ee 17

Inthe Supreme Gourt of the Waited Stntes

OctosER TERM, 1947

No. 647

SerceE M. Rusinstern, Atso KNown as SERGE

MANUEL RUBINSTEIN DE ROVELLO, PETITIONER

v.

Unrrep States or AMERICA

No. 648

ALLEN GORDON FOSTER, PETITIONER

v.

Untrep States oF AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinions in the circuit court of appeals (R.

2227-2240) have not yet been reported.

JURISDICTION

The judgment of the circuit court of appeals

was entered February 5, 1948 (R. 2241). The

(1)

2

petitions for writs of certiorari were filed March

5, 1948. The jurisdiction of this Court is in-

voked iander Séetion:240'(n) of the Judicial Code,

as amended by the Act of February 13, 1925.

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

Crim. P.

QUESTIONS PRESENTED

1. Whether false statements in support of a

claim for occupational deferments are false state-

ments as ‘to liability for service within the pur-

view of Section 11 of the Selective Training and

Service Act.

2. Whether deliberately false statements as to

the importance of a registrant to a business fail

to come within the purview of Section 11 because

they involve matters of opinion.

3. Whether the evidence is sufficient to support

the verdict.

4. Whether, after instructing the jury as to

the nature of the offense charged in the indict-

ment, the judge was required to give instruc-

tions to the jury not to base its verdict on other

evidence.

5. As to petitioner Rubinstein (No. 647),

whether he could be separately punished for being

a party to the making of a false statement by

the employer and for conspiracy to make such

false statement.

3

STATUTE INVOLVED :

Section 11 of the Selective Training and Serv-

ice Act of 1940, ¢. 720, 54 Stat. 885, 894-895 (50

U.S. C. App., 311), provides in pertinent part:

* * * any person who shall know-

ingly make, or be a party to the making of,

any false statement or ¢ertificate as to the

fitness or unfitness or liability or non-

liability of himself or any other person for

service under the provisions of this Act, or

rules, regulations, or directions made pur-

suant thereto, or who otherwise evades

registration or service in the land or naval

forces or any of the requirements of this

Act, or who knowingly counsels, aids, or

abets another to evade registration or serv-

ice in the land or naval forces or any of

the requirements of this Act, or of said

rules, regulations, or directions, * * *

shall, upon conviction in the district court

of the United States having jurisdiction

thereof, be punished by imprisonment for

not more than five years or a fine of not

more than $10,000, or by both such fine and

imprisonment, * *

STATEMENT

An indictment in five counts charging the mak-

ing of false statements as to the liability of peti-

tioner Rubinstein for service under the Selective

Training and Service Act was returned in the

United States Distvict Court for the Southern

District of New York (R. 2219-2226). The first

count against Rubinstein alone is not presently

4

involved, since his conviction on that count was

reversed on appeal (R. 2238). The second count

charged that petitioners, Rubinstein and Foster,

submitted false statements to the Selective Serv-

ice Board in that they submitted an affidavit

seeking an occupational deferment for Rubinstein

which contained knowingly false statements to

the effect that the successful operation of Pan-

handle Producing and Refining’ Company, Mid-

way Victory Oil Company, and Panhandle Steel

Products Company depended upon the continv-

ance of Rubinstein’s employment by those com-

panies, and that loss of his services would seri-

ously impair the drilling program and other ac-

tivities of the companies (R. 2220-2221). The

third count charged a conspiracy to commit the

offense charged in the second count (R. 2222-

2223). The fourth count charged that Rubin-

stein and defendant Hart made false statements

in an affidavit for occupational deferment to the

effect that Rubinstein was executive assistant te

the president of Taylorcraft Aviation Corpora-

tion and had been employed by that corporation

since August 2, 1943 (R. 2223-2224). The fifth

count charged a conspiracy to commit the offense

charged in the fourth count (R. 2224-2225).

-Rubinstein was convicted on all counts and he

was sentenced to imprisonment for a period of

21% years and to pay a fine of $10,000 on each, the

prison sentences to run concurrently (R. 2182,

2190-2191). Foster was convicted on counts 2

5

and 3 and sentenced to imprisonment for two

years and to pay a fine of $5,000 on each; execu-

tion of the imprisonment sentences was suspended

and he was placed on probation for five years (R.

2182, 2192). Hart was convicted on counts 4 and

5 (R. 2182) but did not appeal.

The evidence for the Government may be sum-

marized as follows:

A. Events preceding the submission of the

afidavit of February 2, 1943.—Rubinstein, a na-

tional of Portugal, registered with his local draft

board under the Selective Training and Service

Act (Ex. 2, R. 10). On March 3, 1942, he was

placed in Class III-A, the classification for per-

sons deferred because of dependents (R. 13-14).

On November 19, 1942, Rubinstein submitted an

occupational questionnaire in which he stated that

he was chief executive officer of Midway Victory

Oil Company, a corporation which had ‘‘working

control’? of Panhandle Producing and Refining

Company and Panhandle Steel Products Com-

pany (Ex. 11, R. 19). There was also submitted

an affidavit by Foster and one Duffy to the effect

that Rubinstein’s full time was devoted to the

affairs of the companies mentioned and that his

duties were the direction and management of the

companies (Ex. 12, R. 19)... On November 25,

} Foster, an interior decorator, was a director of several

companies in which Rubinstein was interested, including

Midway Victory Oil Company and Panhandle Producing

and Refining Company (R. 356). Duffy was a director of

Panhandle Producing and Refining Company (R. 360).

ene 2m

or ~ eras ome

6

1942, Rubinstein was classified in Class IT-B;

i. e., he'was given an occupational deferment (Ex.

21,’R. 20). |

B. The affidavit submitted on February 2, 1943

(counts 2 and 3).—Some time after November 25,

1942, Rubinstein was placed in Class T~A, the

classification for persons liable for immediate in-

duction, and thereafter he requested a hearing

before the board on that classification (R. 21-22).

He appeared before the board on February 2,

1943, and submitted a number of documents (R.

24-25). Among them was Form 42A, an em-

ployer’s affidavit for occupational deferment,

sworn to by Foster as a director and officer of

Midway Victory Oil Company and Panhandle

Producing and Refining Company and as an offi-

cer of Panhandle Steel Products Company (Ex.

15A, R. 25). The affidavit stated that Rubin-

stein’s ‘‘duties actually performed’’ consisted of

direction of drilling operations, sale of crude and

other products, negotiations for obtaining sub-

contracting work for shipyards, negotiations with

the petroleum coordinator, and directions for ne-

gotiations of contracts for the steel plant with

various government departments. It also stated

that the companies were engaged in 100 percent

war work. In answer to the question as to how

long it would take to replace the employee, the

affidavit stated that ‘‘because of the character of

employee’s functions the successful continuance

a

7

of operations depends upon employee remaining

with the company.’’ The affidavit further stated

that it was impossible to replace Rubinstein

“without seriously impairing drilling program

and otherwise hampering the Companies’ activi-

ties.’’ Counts 2 and 3 are based upon these latter

statements.

Duffy, a director of Panhandle Producing and

Refining Company, testified that during the eve-

ning of February 2, 1943, while Foster was in

his office, Rubinstein’s secretary brought him a

number of papers, including the Form 42A al-

ready completed (R. 357, 359, 407). Duffy

started to read the form, but Rubinstein came in

and took it from him and gave it to Foster (R.

357). Foster said that he wanted to read the

form, but Rubinstein said that it was not neces-

sary to do so, that Foster could sign it and Rubin-

stein would explain it on the way uptown (R.

357). As presented to the draft board later that

evening, the form was sworn to by Foster (Ex.

15A, R. 25).

C. Evidence relating to the falsity of the aff-

davit of February 2, 1943——Panhandle Produc-

ing and Refining Company was a holding com-

pany which did not itself engage in the produc-

tion of oil and steel products (R. 360-361, 416-

417). Its operating subsidiaries were located at

Wichita Falls, Texas, and all activities of those

companies were carried on in Texas (R. 417, 435,

506-507). The minute books and all the records

780992482

8

of the parent company, as well as of the sub-

sidiaries, were kept in Wichita Falls until Janu-

ary 1, 1944 (R. 533). No Form 42A had been

executed outside of Texas for anyone connected

with the Panhandle companies except that which

Rubinstein submitted to his draft board (R. 533).

Petitioner Foster had not been at the Pan-

handle properties in Texas (R. 532-533). None

of the companies’ names appeared on the doer of

Rubinstein’s suite in New York until after Febru-

ary 2, 1943 (R. 533-534). Rubinstein had been

in Wichita Falls only twice prior to February 2,

1943., He was there for two days in August 1942,

but did not go out to the oil wells (R. 512, 538).

He was there for part of one day in September

when he sought unsuccessfully to have himself

elected president of Panhandle Refining Com-

pany, the oil producing subsidiary (R. 512-514).

Rubinstein was not an officer of Panhandle Re-

fining Company, but only of the parent holding

company (R. 513-514). He was merely a direc-

tor of the subsidiary (R. 514).

The Panhandle companies had been operating

for many years before Rubinstein became asso-

ciated with them (R. 506). Roy B. Jones had

founded the companies and was president and

general manager of Panhandle Refining Com-

pany and president of Panhandle Steel Products

Company (R. 506, 515). Next under him was

Stanford, vice president (R. 515). Although

Rubinstein became president of the Panhandle

g

Steel Products Company in odin 1942,

Jones continued active to the same extent as be-

fore in both the refining and steel products com-

panies and continued to receive the same com-

pensation (R. 523, 586). Rubinstein received no

additional compensation as president (R. 524).

Each of the various departments of the refining

company was headed by a competent person of

long experience and up to February 2, 1943,

Rubinstein had done absolutely nothing for any

department (R. 515-521), except speak briefly

about one account (R. 520). Rubinstein was

never manager of field operations and did nothing

by way of directing the operations of Panhandle

Producing and Refining Company or any other

Panhandle company in the field (R. 527). Rubin-

stein himself had one Stzykgold made manager of

field operations (R. 521) and directed that opera-

. tions be subject to the joint agreement of Stzyk-

gold and Stanford (R. 526). °

As to Panhandle Steel Products Company, Ru-

binstein had been at its plant only once for less

than an hour in the period before February 2,

1943 (R. 431-432, 492, 502). AulOf the manufac-

turing and business operations of that company

were supervised by the witness Helmcamp (R.

494-495), who, as vice-president, general manager

and director (R. 428), secured and filled orders,

purchased raw materials and distributed them,

directed its personnel and determined their wages

and salaries, and was entirely responsible for all

ern 20

re

10

of its operations, activities and production gen-

erally (R. 494-497). All of the company’s em-

ployees reported to Helmeamp alone (R. 430) and

all of the company’s business was conducted at

Wichita Falls (R. 496). ;

On questions of policy, Helmcamp consulted

only Jones, Stanford, and the directors resident at

Wichita Falls, not Rubinstein (R, 430-431, 491-

492), even after Rubinstein became president of

the company (R. 492-493). All directors’ meet-

ings were held at Wichita Falls (R. 435-436), and

up to February 2, 1943, Helmcamp made no re-

ports of any sort to Rubinstein (R. 439, 472), re-

porting only to Jones and Stanford (R. 492-493) ;

nor did he receive any orders, instructions, or

advice from Rubinstein (R. 491, 496-497).

As to Midway Victory Oil Company, it was for

the most part merely a corporate entity through

which Rubinstein purchased and sold securities

(R. 366). Four employees were sufficient to con-

duet its oil business in Texas (R. 365-366, 1094-

1095). Such drilling as was conducted was in

charge of one Cassidy (R. 423-424).

Rubinstein did not devote full time to the affairs

of the Panhandle companies. In December 1942,

_ he wrote to a fellow director of the parent Pan-

handle company as follows (Ex. 79, R. 634) :

The Directors have appointed me presi-

dent [of the parent company], which post I

have accepted with the understanding that

until such time as I am able to devote more

4

time to the company’s operations. I. will

zocin aly 400.» tah in. He. 9

Executive Committee fees of $225,

Similarly, on two or three oceasions - in ‘1943,

Rubinstein told a Panhandle offieer that he hoped

his own personal affairs would soon be cleaned .

up, so that he could devote more time to those of

Panhandle (R. 643, 670-672). In May 1942,

Rubinstein had obtained permission from his

draft board to go to Chile for six months to at-

_ tend to his own financial affairs (Exs. 9, 10, BR.

16-17).

In the affidavit submitted by Foster, it was

stated that the Panhandle companies were en-

gaged 100 percent in war work (Ex. 15A, R. 25).

In fact, however, only about 30 to 50 percent of

the refining company’s products were used in the

war effort (R. 527-528, 5738-575, 578), and only

about half of the steel products company’s output

was so used (R. 484, 480).

D. The affidavit submitted on October 12, 1943

(counts 4 and 5).—On the basis of the documents

submitted on February 2, 1943, Rubinstein was

classified II~B (R. 29). An appeal was taken

by the City Director of Selective Service and the

appeal board placed him in Class I-A (R. 29).

_ On September 7, 1943, however, the local board’

reopened Rubinstein’s classification and reelassi-

fied him II-B (R. 41). An appeal was again

ae

12

taken and Rubinstein was again classified I-A

(R. 41-42). He was notified of that action on

October 2, and on October 8 he was ordered to

report for inductidn on October 20 (R. 41-42,

44-45). On October 12, Rubinstein asked for

* another hearing and on that day he presented to

the board a form 42A, signed by Hart, to the ef-

feet that Rubinstein was executive assistant to

the president of Taylorcraft Aviation Corpora-

tion, that he was in charge of financial and

administrative matters for the company, and that

he had been employed in such capacity - since

August 2, 1943 (R. 46-47; Exs. 25 and 26, R. 47).

Counts 4 and 5 are based upon these statements.

E. Evidence relating to the falsity of the Oc-

tober affidavit—On October 4, two days after

Rubinsteim had been notified that he had been

placed in Class I—A, he proposed that Panhandle

Producing and Refining Company invest in Tay-

lorcraft Aviation Corporation, but his suggestion

was disapproved (Ex. 65, R. 368-369). On Oc-

tober 7, Rubinstein met Hart and one Buckley,

both Tayloreraft directors, in New York (R.

1170). Hart and Buckley had been placed in

charge of Taylorcraft by one Baker and his as-

sociates (R. 1794, 1819). Baker and his asso-

ciates were negotiating for the sale of their stock

in Tayloreraft and had received an offer from

prospective purchasers who desired to merge

Tayloreraft with their own company (R. 688,

13

690, 694, 1757-1758, 1794~1977), thus sag ash eg

Hart ’s position as president. — ~ .

On October 9, Rubinstein flew with Buckley to

Alliance, Ohio, where the Taylorcraft. plant. was

located (R. 1989). On Sunday, October 10, Hart

had the personnel director’ of Taylorcraft. come

to the plant (R. 699, 713-715). Hart introduced

Rubinstein to the personnel director and stated

that Rubinstein was to go on the Tayloreraft pay-

roll as Hart’s executive assistant, and that on ap-

proval of the board of directors, Rubinstein was

to be vice president in charge of finances. He

also stated that he wanted Rubinstein’s name

added to the Taylorcraft replacement list which

was to be filed with Ohio selective service head-

quarters the following day. (R. 714-715.) At

Hart’s request, the personnel director brought

him three blank forms 42A, and Hart and Rubin-

stein then went into Hart’s office (R. 715-716).

When they emerged, Hart handed the personnel

director a form filled out in pencil, not in Hart’s

handwriting (R. 716). Mrs. Hart typed two

copies of the form, which were signed and sworn

to that Sunday morning (R. 716-718). One copy

was left with Hart and the other copy was taken

by Rubinstein (R. 729, 734).

Upon his return to New York, Rubinstein gave

his secretary a purported letter of employment by

Taylorcraft dated August 2, 1943, and instructed

her to have it photostated and filed (R. 793-794;

Se A OR 6 nh mer

A tip seta sees wath

14

Ex. 95, R. 744)." Rubinstein also directed that

the legend, ‘‘Taylorcraft Aviation Corporation,

New York Representative,’’ be placed on the door

of his suite of offices (R. 796--797).

On October 11, the personnel officer revised the

replacement schedule of Taylorcraft to include

Rubinstein’s name and took it by plane to state

selective service headquarters at Columbus, Ohio

(R. 723, 727). When he returned, Hart stamped

the copy of the form 42A which he had retained to

indicate that the schedule had been accepted and

sent it immediately to Rubinstein (R. 728-730).

On the same day in New York, at a meeting of

the directors of Panhandle, Rubinstein, by per-

sonally guaranteeing Panhandle against loss, ar-

ranged for a loan by Panhandle to a holding com-

pany owned by Hart and Buckley (R. 373-374,

646-647).

Rubinstein’s name did not appear on the Tay-

loreraft payroll register for any of the payroll

periods prior to October 12, 1943 (R. 708-712).

After December 14, entries were made showing

compensation to Rubinstein for the period from

August 2 to November 16, 1943 (R. 752). Neither

the secretary of the company nor a director famil-

iar with its financial affairs had any knowledge

* The letter was admittedly typed by Mrs. Hart at Taylor-

oraft’s plant (R. 1766-1767). Mrs. Hart was at the plant on

October 10, 1943 (R. 714). On August 2, 1943, Mrs. Hart

was pregnant and she gave birth to a child a few days later

(R. 745, 1767).

of any connection of any sort between Rubinstein

and Taylorcraft (R. 687-688, 765-767; see also

R. 752). In an affidavit submitted to the draft

board on August 12, 1948, giving the personal his-

tory statement required of aliens, Rubinstein

made no mention of any employment by Taylor-

eraft (Gov. Ex. 21, R. 37-40).

F, Events subsequent to October 12, 1948.—~The

local board refused to change Rubinstein’s re-

classification, and he was ordered to report for

induction (R. 56). Thereafter he filed form 301,

claiming exemption from service as the subject of

a neutral country (R. 56-58).

ARGUMENT

1. Petitioners contend (No. 647, Pet. 6, 7,

11-18; No. 648, Pet. 4, 5-6, 9-16) that it was not

a criminal offense to make a false statement to a

local draft board with a view to obtaining a de-

ferment from military service. They concede that

the making of a false statement for the purpose

of securing an exempt classification, as distin-

guished from a deferred one, was a violation of

the third clause of Section 11 of the Selective

Training and Service Act of 1940. That clause

provided for the punishment of any person—

who shall knowingly make, or be a party to

the making of, any false statement or cer-

tificate as to the fitness or unfitness or lia-

bility or nonliability of himself or any

other person for service under the pro-

16

visions of this Act, or rules, regulations, or

directions made pursuant thereto * * *,

Petitioners’ theory is that “‘liability for sery-

ice’’ related only to the question whether a reg-

istrant was totally exempt.from service under the

Act, and that a false statement which did not seek

to establish total exemption from service was not

one in respect of the registrant’s liability for serv-

ice under the Act. Nothing except an extremely

narrow reading of the word “‘liable’’ supports this

view, and no court has read the word that nar-

rowly. This Court denied a petition for a writ of

certiorari which made, among others, the same

argument. Peskoe v. United States, No. 874, Oc-

tober Term, 1946, 330 U. S. 824.

There is no basis, in our view, for distinguish-

ing between a false statement directed to an

exemption and one related to a deferred classifi-

cation. When a local board classified a registrant

in an exempt classification, it determined that he

was not at any time liable for service under the

Act. On the other hand, when the board deter-

mined that a registrant should be placed in a

deferred classification, it determined that at that

time he was not liable for service. In contrast

to the exempt status, a deferred classification

meant that the registrant was not then liable for

selection for service, but that at any time in the

future, if his situation changed or if the regula-

tions establishing deferred categories were

a

17

amended, his classification might then be changed

to I-A, and he would then become liable for selec-

tion for military service. The sole difference be-

tween an exemption and a deferment was the

difference between being totally relieved of service

and being relieved on condition subsequent.

In either event, it was the function of the local

board to classify the registrant. Thus, for ex-

ample, a minister of religion was exempt from

service and was classified IV-D (Reg. 622.44) ;

a person employed in an essential occupation was

deferred and was classified II-A (Reg. 622.21).

To make either classification, the board necessarily

had need for the true facts. Certainly, nothing

which inheres in the word ‘“‘liable’’ requires the

conclusion that Congress did not intend to pro-

scribe the making of a false statement to a local

board where the purpose of the registrant was to

obtain’ a deferred classification. And nothing is

suggested showing that Congress intended not to

strike at falsity of the kind here involved. ;

It is said that Congress used the word “‘liable’’

in other parts of the Act in the narrower sense

and that a broader construction should not be

given it in Section 11. But Congress also pro-

vided for deferments (Sec. 5, 50 U. S. C, App.

305). And it is unreasonable to believe that Con-

gress did not intend to extend the enforcement

provisions to this category as well as the other.

The legislative history of Section 11 shows no

18

more than that it was a substantial reenactment

of the enforcement provisions of the Selective

Draft Act of 1917 (50 U. S. C. App. 201 et seq.).

See Singer v. United States, 323 U. 8. 338, 342,

348. Section 6 of that act proscribed the making

of a false statement as to liability for service, and

this was held to include a false statement made for

the purpose of delaying, on grounds of depend-

ency, the time when the registrant would be se-

lected for service. Kretbich v. United States, 261

Fed. 168 (C. C. A. 8). The same kind of state-

ments are involved in these cases. It is true that

there are variations between the predecessor stat-

ute and the 1940 act, but the significant feature

for us is the fact that the word ‘‘liable’’ was broad

enough in the earlier act to reach statements like

petitioners’ and there is nothing to suggest that

Congress intended to use it in a narrower sense

in the later act. There is a casus omissus in Sec-

tion 11, as petitioners contend, only if one is read

into the all-embracive language used in that pro-

vision. Oonstruction of an important provision

of an important statute does not require that the

narrowest possible meaning be given to words

which reasonably may be accorded a meaning more

consistent with the obvious purpose of Congress.

Even criminal statutes “‘should be given their fair

meaning in accord with the evident intent of

Congress.’’ United States v. Sullivan, No. 121,

decided January 19, 1948.

2. Petitioners also contend (No. 647, Pet. 6, 8,

93;' No. 648, ‘Pet. 4, 6, 16-21) ‘that the statements ~

in the form 42A signed by Foster, to the effect

that the successful operation of the business of 'the

Panhandle companies depended on Rubinstein’s

continued employment and that it was im-

possible to replace him ‘without seriously impair-

ing the drilling program—the statements ‘spe-

cifically chargéd as false in counts 2 and 3—

were merely statements of opinion, and hence

that a prosecution for making false statements

could not be based thereon. The question thus

raised is largely of academic interest, since, as the

court below pointed out (R. 2235), petitioners

were guilty of making false representations of

fact as well as of opinion. The statement that,

‘“because of the character”? of Rubinstein’s func-

tions, the success of the business depended upon

his continuing employment, obviously referred to

the statement of duties set forth in the prior por-

tion of the affidavit (see Statement, supra, p. 6).

These were clearly false statements of fact as to

the “‘character”’ of Rubinstein’s functions which

were carried over into the statement alleged in

the indictment.

In any event, the decision below is clearly éot-

rect in holding that petitioners’ statements of

opinion were false statements as to liability for

service under the act. As this Court stated in

Seven Cases v. United States, 239 U.S. 510, 517:

state of mind is itself a fact, and may be a

material fact, and false and fraudulent rep-

resentations may be made about it * _ ‘s

Even in the civil law of fraud, the assertion in

bad faith of a belief or opinion not honestly enter-

tained under circumstances which would justify

reliance on such opinion constitutes fraud. Shell

Oil Co. v. State Tire & Oil Co., 126 F. 2d 971, 974

(C. C. A. 6); Keeler v. Fred T. Ley & Co., 65 F.

2d 499, 501 (C. C. A. 1); Vulcan Metals Co. v.

Simmons Mfg. Co., 248 Fed. 853, 856 (C. ©. A. 2),

certiorari denied, 247 U. S. 507; Goodrich-Lock-

hart Co, v. Sears, 270 Fed. 971, 977 (E. D. Ky.).

The same rule, we submit, must necessarily

apply under Section 11 of the Selective Service

and Training Act. Statements as to liability for

service in many cases necessarily involved matters

of opinion. Many claims for occupational de-

ferment depended on opinions. Even medical

judgments are opinions based upon observable

facts. There is, of course, a vast difference be-

tween an honest error of judgment and an opinion

deliberately advanced in bad faith without any

honest belief therein. Manifestly, Congress must

have intended that persons making statements to

a draft board, necessarily involving matters of

Opinion, must have done so in good faith.

No conflict of decisions is involved here. The

case of Chaplin v. United States, 157 F. 2d 697

(App. D. C.), upon which petitioners rely, in-

volved a prosecution for false pretenses, a com-

21

mon law offense which the court held was limited

by its’ history. The practical considerations

which the court thought gave rise to the common

law limitations and which the court deemed of

sufficient importance to justify the continuance of

the common law rule, have no application to the

situation presented by the Selective Service and

Training Act. Under that Act, as we have shown,

statements of opinion were an integral part of

the system created by Congress. As the cases

cited by petitioners themselves show (see No. 647,

Pet. 21-22), with respect to other offenses where

false representations of state of mind would tend

to subvert the purpose which the statute was de-

signed to achieve, prosecutions based on false

representations of state of mind have regularly

been upheld. Durland v. United States, 161 U. 8.

306; United States v. Uram, 148 F. 2d 187

(C. C. A. 2), certiorari denied sub nom. Sohmer v.

United States, 325 U. 8. 875.

3. The contentions that the proof was insuffi-

cient to support the verdicts (No. 647, Pet. 6, 9,

27-28; No. 648, Pet. 5, 6, 22-26) are sufficiently

answered by the summary of the evidence set

. forth in the Statement, supra. In fact, the bits

of evidence which petitioners have gleaned from

the record to show some activity by Rubinstein in

behalf of Panhandle companies (No. 648, Pet.

23.26) show that Foster could not in good faith

have deemed Rubinstein necessary to the drilling

operations and other activities of those companies.

22

As to counts 4'and 5, it is clear that Rubin-

stein’s alleged employment by Taylorcraft was a

last-minute scheme concocted in a desperate effort

to avoid liability for service.

4. Petitioners further contend (No. 647, Pet.

6, 9, 26; No. 648, Pet. 4, 6, 21-22) that the ‘trial

court committed prejudicial error in failing to

instruct the jury that they could not base a con-

viction upon a finding that the Panhandle com-

‘panies were not wholly engaged in war work, as

stated in the form 42A on which counts 2 and 3

were based. They admit that such evidence was

properly admitted ‘on the question of intent, but

argue that the verdict of the jury might have

been based on such false statements rather than

on the specific statements alleged in the

indictment.

At the opening of his charge, the trial judge

read the indictment to the jury, imeluding, of

course, the specific allegations set forth in the

various counts (R. 2163-2170). He told the

jury that such were the charges to which the de-

fendants had pleaded not guilty, and that the

plea of not guilty put in issue every material

allegation of the charge (R. 2170). A little later

(R. 2172), he charged the jury that as to counts 2

and 4—

It is for you to determine whether the

statements of the defendants were know-

ingly false and to determine further

whether they were material and made with

criminal intent, that.is, knowingly. sy

believe, that. they were made honestly, then

you must acquit; if you find. heyond a Tea:

sonable doubt that they are false and ‘that

the defendants or any of them knew they

were false, you must convict. To put it

another way, it is a crime to make such

statements to a Selective Service Board,

knowing such statements to. be false. * * *

The instruction obviously referred to the state-

ments charged in the indictment as false, and the

jury must so have understood.

Having told the jury what they must, find, the

judge was not required to tell them what they did

not have to find. Since he did not review the evi-

dence in the case, there was no necessity for him

to go into the evidentiary details, such, as. the

false statements respecting the extent.of the war

work of the Panhandle companies.

5. Rubinstein also contends (No. 647, Pet. 6,

23-25) that since counts 2 and 4 were based‘ on

employers’ affidavits, he could have committed the

offenses only if he acted in concert with the em-

ployers, and hence that he could not also be con-

victed of conspiracy to commit such offenses.’ He

relies on the rule that if an executed substantive

erime necessarily involves mutual cooperation of

two or more persons, such persons may not be

convicted of conspiracy on the basis of the same

concert of action. United States v. Zeult, 137 F.

* This contention affects only the fines, since the imprison-

ment sentences are to be served concurrently.

St AC 6 tI aN Nl es

24

Sd 845 (C. C. A. 2); see Pinkerton v. United

States, 328 U. 8. 640; United States v. Katz, 271

U. 8. 354. The doctrine of those cases is, how-

ever, limited to situations where concert of action

is itself a necessary element of the substantive

offense. That factor is not present here. Con-

eert of action is not an element of the offense of

making false statements as to liability for service

under the Selective Training and Service Act.

The employer, alone, could make false statements.

A registrant, alone, could under some circum-

stances, cause an innocent employer to..make a

false statement. The mere fact that the proof

in this case established guilty participation by the

employer and the registrant is not sufficient to

take the case out of the general rule that con-

spiracy to commit a crime and the crime itself are

separate offenses. United States v. Bayer, 331

U. 8. 532; Pinkerton v. United States, 328 U. 8.

640.

CONCLUSION

We respectfully submit that the petitions for

writs of certiorari should be denied.

Puiuir B. PERLMAN,

Solicitor General.

T. Vincent QuINN,

ssistant Attorney General.

Rosert 8. Erpaxt,

Irvine 8S. SHapiro,

BEATRICE ROSENBERG,

Attorneys.

U. S. GOVERNMENT PRINTING OFFICE: 1948