Opposition Brief — Marachowsky v. United States

INDEX

Page

I TOD on cite rice pea eR errs | eae EN PO SPOR 1

a EEA cd AP DIE NET AON OCD AE ND 2

Questions presented ------~------------------------------ 2

eS Ro eenreernicatiatinetiines 3

ELE EDTA A AAA Te OT Oe 4

Argument -_---.----------------------------------------- 15

ea ee eae ees Ie ARO T ed Ee pee Nn ore ee SL Ses 22

CITATIONS

CASES:

Burton v. Driggs, 20 Wall. 125 ---_--.------------------- 19

Delaney v. United States, 263 U. S. 586 --..------------- 22

Kann v. United States, 323 U. S. 88 __------------------- 21

United States v. Johnson, 319 U. S. 503 _--------------- 21-22

United States v. Wood, 14 Pet. 430 _...._.--..----------- 21

STATUTES:

Bankruptcy Act of July 1, 1898, c. 541, § 29, 30 Stat. 544, as

amended, 44 Stat. 665, 52 Stat. 855, 11 U. S. C. (1946 ed.)

$2(b) ~-..---.---~-~----------------------------------

Criminal Code, Section 37, 18 U.S.C. (1946 ed.) 88 28

U. S.C. (Supp. V) 1782(a) --------------- ig cngsdae a aa

MISCELLANEOUS:

Wigmore, Evidence (3d ed., 1940) Sec. Io accnkeaidaoscie 19

Inthe Supreme Court of the United States

OctToBER TERM, 1952

No. 684

BeLLE Maracnowsky, Etc., Petitioner

Vv.

Unirep STATES OF AMERICA

No. 685

J. H. Maracuowsky, Erc., Petitioner

v.

Unttep STATES OF AMERICA

On Petitions for Writs of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (CAR. 12")

is reported at 201 F. 2d 5.

1 The following designations are employed, in accordance

with those employed in the petitions:

CR—the common law record in the trial court

(Footnote continued next page)

2

JURISDICTION

The judgments of the Court of Appeals were

entered on January 7, 1953 (CAR. 13, 14) and a

petition for rehearing was denied on February 6,

1953 (CAR. 17). On February 28, 1953, the time

for filing petitions for @ writsof certiorari was ex-

tended by Mr. Justice Minton to March 28, 1953.

The petitions for a writsof certiorari were filed on

that date. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1). See also Rules 37(b) (2)

and 45(a), F. R. Crim. P.

QUESTIONS PRESENTED

1. Whether, in a trial for false swearing with

respect to a claim in a bankruptcy proceeding, the

separate instruction requested by petitioner Belle

Marachowsky with respect to her right to rely on

a purported contract was necessary or proper.

2. Whether certain summaries and _ expert

opinion of an accountant were properly admitted.

3. Whether the evidence was sufficient as a

matter of law to support the verdicts on the sub-

Tr—the transcript of the testimony

CAR—the record of the supplemental proceedings in the

& Court of Appeals

a App. to Pet.—the identical appendices to the petitions,

both reproducing tie opinion of the court below.

Belle Marachowsky’s petition, No. 684, is designated ‘‘B.

Pet.’’? That of J. H. (Jake) Marachowsky, No. 685, is

designated ‘‘J. Pet.’’

S—

3

stantive counts against petitioner J. H. Mara-

chowsky.

STATUTES INVOLVED

The Bankruptcy Act of July 1, 1898, c. 541, § 29,

30 Stat. 544, as amended, 44 Stat. 665, 52 Stat. 855,

11 U.S.C. (1946 ed.) 52 (b):

A person shall be punished by imprisonment

for a period of not to exced five years or by a

fine of not more than $5,000, or both, upon con-

viction of the offense of having knowingly and

fraudulently * * * (2) made a false oath or

account in or in relation to any proceeding

under this title; or (3) presented under oath

any false claim for proof against the estate of

a bankrupt, or used any such claim in any pro-

ceeding under this Act * * *.

Section 37 of the Criminal Code, 18 U.S.C. (1946

ed.) 88:

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 con-

spiracy shall be fined not more than $10,000, or

imprisoned not more than two years, or both.

1

28 U.S.C. (Supp. V) 1732 (a):

In any court of the United States and in any

court established by Act of Congress, any

writing of record, whether in the form of an

entry in a book or otherwise, made as a

memorandum or record of any act, trans-

action, occurrence, or event, shall be admis-

sible as evidence of such act, transaction, |

occurrence, or event, if made in regular course

of any business, and if it was the regular

course of such business to make such

memorandum or record at the time of such act,

transaction, occurrence, or event or within a

reasonable time thereafter.

All other circumstances of the making of

such writing or record, including lack of per-

sonal knowledge by the entrant or maker, may

be shown to affect its weight, but such cir-

cumstances shall not affect its admissibility.

STATEMENT

Petitioners seek review of judgments of the

Court of Appeals for the Seventh Circuit (CAR.

13, 14) affirming on all counts but one the judg-

ments of the United States District Court for the

Western District of Wisconsin adjudging peti-

tioners guilty, upon verdicts of a jury (Tr. 2881-

2882), and imposing fines and sentences as follows:

a general sentence of two years’ imprisonment and

_—

5

a fine of $10,000 upon Belle Marachowsky upon

seven counts for making false oaths in a bank-

ruptey proceeding and one count for conspiracy

to make such oaths (Tr. 2903-2904) ; a sentence of

five years’ imprisonment upon J. H. (Jake) Mara-

chowsky upon each of seven counts for making

false oaths in the same bankruptcy proceeding,

and a sentence of two years’ imprisonment upon

a count of conspiracy to make such oaths, all sen-

tences to run concurrently, and fines of $5,000 upon

each of substantive counts IT, IV, VI, VIII, and

X (Tr. 2901-2903).?

The evidence in general may be summarized as

follows:

During 1945 and 1946, petitioner Jake Mara-

chowsky was president of Portage Wholesale Com-

pany. He owned 53 percent of the stock and was

the active manager. (Tr. 2229, 2360.) In December

1944, Joseph Blitz and Belle, who was then his wife

(and is now Belle Marachowsky, petitioner in No.

684, following a divorce from Blitz and marriage

to petitioner Jake Marachowsky*), came to

Portage, Wisconsin, and Blitz was employed by the

wholesale company (Tr. 1697). In 1945 and 1946,

2The judgment on substantive count XIII against Belle

Marachowsky was reversed (CAR 13; App. to Pet. 15-16).

3 Belle and Jake were married in November, 1948 (Tr.

2228). Prior to that time, following her divorce from Blitz

in October, 1947, she had resumed her maiden name of Belle

Canfel (Exh. 220).

a

6

Blitz had his headquarters in New York City. On

behalf of Portage, he sold butter, eggs, cheese, corn

syrup and dextrose (corn sugar) on the black

market. Blitz worked under the supervision of

Jake (Tr. 995, 1004-1005) and made frequent col-

lections in cash (Tr. 996-997). From time to time,

Blitz and Belle carried the money from New York

to Portage (Tr. 962, 1078-1079, 1107).

Blitz was employed on a commission basis (Tr.

1052). Jake testified that Blitz handled products

for the Company on a brokerage basis. But

Portage owned the merchandise at all times and

did not sell to Blitz. (Tr. 2436-2437.)

When a car of merchandise was shipped on open

bill of lading, Blitz would sell the car and deliver

the bill of lading. When a car was shipped on sight

draft Blitz would at times pay the draft with cash

of Portage and then sell the car. (Tr. 1003.)

During 1946, one John Olson was employed by

Portage to purchase butter, cheese, poultry and

corn in Iowa and Nebraska. Olson used checks of

Portage to make purchases and also received

quantities of cash totalling upwards of $75,000

which he used in buying corn and dairy products.

(Tr. 2174-2176, 2181, 2184.) Belle handed cur-

rency to Olson on a number of occasions, always

in Jake’s presence. Olson always accounted to

Jake for the cash. (Tr. 2174-2180.) Jake gave Ol-

son all his instructions; Belle gave Olson no in-

structions (Tr. 2211-2212.) Olson (who was called

— ee s

REE Tas > Tye eee ee Ss a a ER a ch

7

as a defense witness) always thought he was work-

ing for Portage (Tr. 2220) and considered Belle as

only an agent of the Company (Tr. 2226).

At the beginning of 1947, Jake resigned as

President of Portage. (Tr. 225, 227.) On January

21, 1947, a petition for arrangement was filed under

Chapter XI of the Bankruptey Act. On January

16, 1947, just before the arrangement proceedings

began, Belle sued Portage for $86,000 allegedly

loaned to it between September 1, 1946, and

November 30, 1946 (Exh. 179, Tr. 1445). Robert

Goetz, who had been chief accountant of Portage,

supervised the preparation of schedules of

creditors. The records disclosed no amount owing

to Belle. (Tr. 228.)

At about the time the arrangement proceedings

were begun Blitz commenced a divorcee action

against Belle. On April 11, 1947, Belle testified

on adverse examination in this action that the

$36,000 for which she had sued was all that the

Company owed her. (Tr. 1993-1994. )

On August 28, 1947, Belle filed a claim in the

Chapter XI proceedings for $67,926.06 (Exh. 4).

On October 20, 1947, Belle filed a bill of particulars

in support of this claim in which she stated that

no notes or other written evidence existed to sup-

port her claim except for certain checks listed

therein (Exh. 5).

On October 29, 1947, Belle filed a federal income

tax return for 1946 reporting a capital gain on corn

8

of $108,267.91 and claiming a non-business bad

debt of $81,776.04 from Portage. (Tr. 2002-2003.)

On March 22, 1948, at an adverse examination in

connection with her claim, Belle produced a series

of receipts or invoices, Exhibits 11 to 16, inclusive.

These invoices were partly in Jake’s handwriting

and partly in Belle’s, and purportedly had been

prepared in the summer of 1946. Belle could name

no one, except Jake and herself, who had ever seen

these invoices before March 22, 1948. (Tr. 2004-

2005.) On June 11, 1948, Belle filed an amended

claim for $126,780.09 (Exh. 6). In July and Au-

gust 1948, hearings were had on Belle’s claim be-

fore the Referee and it was at these hearings that

Belle and Jake gave the testimony involved in the

indictment. Six specific amounts, purportedly due

Belle from Portage by reason of her lending of

money or ownership of carloads of commodities in-

volved in six different transactions, were each the

subject of testimony by Belle and by Jake, the al-

legedly false testimony by Belle being the basis for

counts I, III, V, VII, 1X and XI, and that by Jake,

counts II, IV, VI, VIII, X and XII. Jake’s

testimony that the receipts or invoices, Exhibits

11-16, had been credited on the books became the

subject of count XIV. In count XV a conspiracy

of Belle and Jake to commit the substantive

offenses was charged (CR. 9-27).

Petitioner Jake Marachowsky attacks the

sufficiency of the evidence to support his convic-

PMI LEE PAIR EE NNT PERE NR OAL LENO LR SIR TY TURE PAI PLOT ———

9

tion on the substantive counts. Accordingly, we

summarize here the evidence bearing on counts IT,

IV, VI, VIII, and X, the counts on which the fines

were imposed, since any one of the counts is suffi-

cient to sustain his prison sentence.

Count II—Figge Transaction

The first allegedly false claim of Belle regarding

which Jake was charged with a false oath in the

bankruptcy proceeding was a claim for $32,999.17.

In that proceeding he testified that he had signed

a purported receipt dated July 17, [1946] (Exh.

11) acknowledging for Portage receipt of the

stated sum from Belle; that the amount had been

received at the bank for the credit of Portage but

was “‘her money’’; and that the subsequent distri-

bution of the sum, $12,999.17 to an affiliate of

Portage and of the remaining $20,000 to Portage

direct, was pursuant to Belle’s consent (Tr. 57-58).

As against this testimony Portage’s books placed

this exact sum of $32,999.17, not to Belle’s credit,

but as a credit to overpayments for butter (Exh.

48). Jake admitted that he told his accountant,

Goetz, that the $32,999.17 was a refund of money

‘‘due the Portage Wholesale Company from some

butter transactions” (Tr. 1518).

Figge, the creamery operator who had sent the

$32,999.17 to Portage (Tr. 159), testified that he

had never had any business dealings with Belle and

that she had never given him any money (Tr. 166a-

use in ae Veal 3 c. ates P .

<a AGRO DT AES ASIEN SCR VI ORY ALOT ST GETING SOOM

10

167, 171-172). He was corroborated by his books,

which showed that the $32,999.17 that he had sent

to Portage balanced an amount by which he had

been overpaid by Portage (Exh. 111, Tr. 155).

Belle’s testimony in her divorce proceedings and

in a suit against Portage in 1947 also contradicted

Jake’s testimony. She attested a debt arising

from checks delivered by her in the presence of

Jake and his brother—not a debt evidenced by any

such written receipt as that to which Jake testified

at the bankruptcy hearing—and her debt was in

the amount of $36,000, allegedly all accrued sub-

sequent to September 1, 1946 (Exh. 179, Tr. 1445,

Tr. 1510-1511, 1993-1994).

Count IV—Spiritus Butter Transaction

Jake testified in the bankruptcy proceedings

with respect to a claim of Belle against Portage

for $27,240.57, purportedly evidenced by a receipt

or invoice signed by Jake for Portage (Exh. 12,

Tr. 71), that he did not have the money to pay for

a certain carload of butter in New York and asked

Belle to pay for it, that the car was released to one

Spiritus, and that when the Spiritus check came he

‘credited that to Belle’’ (Tr. 72-73).

Belle had previously testified before the Referee

that Jake’s instructions to her had been ‘‘to give

Mr. Spiritus the money to pick the draft up with,

and then he could later remit it to the [Portage]

Wholesale [Company.] And that is the way that

FLSA EE RT BP IRN TI IN EN II MED RN RFR iat Rape et NEE —

11

was handled.”’ (Tr. 59-63, 68.) It was this story

that Jake was supporting when he testified that he

asked Belle to pay for the car (Tr. 72-73). Jake’s

own testimony in the present proceeding, reiterat-

ing the alleged incident he was confirming to the

Referee, was as follows (Tr. 2300) :

Q. And what was the substance of the con-

versation with Belle Blitz?

A. Well, I asked her if she could and would

furnish the moneys to Milton [Spiritus] to

pick up this car of butter in the amount of

$27,000. And she said she would.

Spiritus’ testimony was an outright denial of

any financial dealings of any kind with Belle and

of any payment of the draft by him (Tr. 360, 505-

506, 518-519). Moreover, the books of Portage

showed that the $27,240.57 check of Spiritus had

been credited to Spiritus and never to Belle (Exh.

52, A, B, and C). It was stipulated that the car

had been billed to Portage, care of Blitz, and that

the draft paid for the car was $26,856.90, not

$27,240.57 (Tr. 522). Since Jake himself testified

that Portage was intended to have, as a profit, the

substantial difference between the amount of the

draft and the amount Spiritus paid (‘T'r. 2375-

2376) the amount due Belle, if there had truly

been an advance, would have been stated at

$26,856.90.

12

Count VI—Spiritus Cheese Transaction

Jake testified before the Referee with respect to

another claim of Belle, in the amount of $10,000.

He was shown a purported receipt or invoice, dated

July 29, 1946 (Exh. 13), signed by him for

Portage, stating ‘‘Check received Spiritus. Your

account eredited $10,000 today, payable to Belle

Blitz on demand.’’ He was asked what this credit

was and how it arose, and he testified that upon

the arrival of a car of cheese in New York, Spiritus

‘*didn’t want to pick up the draft’’ and Jake asked

Belle ‘‘if she would advance the money”’. (Tr. 79-

80.)

Spiritus, on the other hand, testified at the trial

that Belle had neither furnished him the money to

lift the draft nor had any transaction with him

about the car of cheese (Tr. 380,506). His records

showed that he had himself picked up the draft,

out of monies furnished by Joe Blitz (Exh. 124 and

124A (July 24, 1946) ; Tr. 373-375).

The Portage records showed crediting of the

$10,000 check of Spiritus for the car, not to Belle,

but to Spiritus (Exh. 52, A, B and C) ; moreover,

a memorandum emanating from Jake stated

Jake’s recollection that Spiritus ‘‘advanced’’

$10,000 on the car (Exh. 144). And, as in all these

transactions, Belle’s prior testimony contradicted

Jake’s. Supra, p. 10.

RTS SEAS ARN SRN EMAL hI NM AEN FATE he

13

Count VilI—Brockelman Transaction

Jake testified with respect to a further receipt

or invoice, purportedly dated September 14, 1946,

in which he had acknowledged a claim of $26,179

by Belle upon Portage (Exh. 14), that this was a

‘*eredit’’ that he ‘‘understood was hers at that time,

when [he] had the records before [him]’’ (Tr. 92).

Belle, in testimony before the Referee, had

asserted that the sale of the two cars of syrup and

one of dextrose involved in this claim had been

personally made by her and that she had owned the

ears (Tr. 86-90).

The Portage books and records showed, however,

that the $26,179 was a payment to Portage for two

cars of syrup and one of dextrose, which Portage

had originally bought and paid for (Tr. 1435, 1437,

1440-1442) and which Portage had invoiced and

shipped to Brockelman Brothers (Exh. 69, 70, 71,

164; Tr. 1135-1136). Portage also wired Brockel-

man Brothers asking for an advance of $26,000

(Exh. 171, Tr. 1134-1135).

The testimony of a witness Robinson, who

handled the transaction for Brockelman Brothers,

restricted the dealings to contacts with the Mara-

chowsky brothers and denied any business dealings

with Belle (Tr. 1133-1135, 1145-1149). Robinson

testified that the cars were paid for by funds wired

to Portage’s bank for the account of Portage, and

his records corroborated him (Exh. 172-174, Tr.

1138-1141).

RG as IE ILL ESL RII LE PBEM LITTLE IONE 5 FG AAW SRP EGE NS EEN OH IR ert IN Cy APMED

Bea spa EERIE

Ss iA RE OEM oS

14

Count X—Morrison Transaction

Jake was questioned in the bankruptcy proceed-

ings about a ‘‘receipt’’ for $13,648 due Belle, which

he had signed for Portage under the purported

date August 28, 1946 (Exh. 15). He testified that

it was for ‘‘money that was due Belle * * * that

had been credited to [the Portage] account at the

Home Savings Bank’’ (Tr. 99). Belle’s testimony,

two days before, had been that the credit had arisen

out of a sale of a car of syrup owned by her (Tr.

96-98).

The books of Portage showed that on August 19,

1946, Portage bad paid for the car of corn syrup

here involved (Tr. 281E, 1020, 1523-1524, 1568).

The car was invoiced to Joe Blitz—corn account,

at $5,607.28 (Tr. 1568; Exh. 140) and when pay-

ment of $13,648 was received from the real pur-

chaser, Morrison, doing business as Peak Products

Company, the amount was credited in the cash book

to Blitz Products Company (Exh. 50, p. 25) and

posted to the credit of Joe Blitz (Exh. 54).

As a living witness to the falsity of petitioners’

testimony, Morrison himself testified that he

ordered the ear of syrup from one of the Mara-

chowskys, that he made his payment to Portage,

and that he had had no dealings whatsoever with

Belle (Tr. 709-714).

15

ARGUMENT

1. Petitioner Belle Marachowsky, referring to an

alleged contract under which Jake Marachowsky,

for the Portage Company, purported to assume

certain obligations to her which she later sought to

enforce in the bankruptey proceedings,‘ complains

(B. Pet. 24-25) of the trial judge’s refusal of her

sixth requested instruction as follows (Tr. 2831):

It is immaterial whether the written con-

tract Ex. 322 would be legally binding upon

the Portage Wholesale Company in a civil

suit. Unless the Government has proved to

your satisfaction beyond a reasonable doubt

that the said written contract was not made in

good faith and as part of a fraudulent

scheme, then you are instructed that Belle

Marachowsky had a right to rely upon the said

contract; present her claims and attempt to

recover what she believed she had coming

from the transactions arising out of or

deseribed in said contract.

Petitioner now concedes that the first portion of

the requested charge, relating to the question of

the ‘‘legally binding’’ effect of the contract,

‘‘might be objectionable because confusing’’ (B.

Pet. 25), but continues with the objection that the

4The text of the contract (Exh. 322) referred to in the

proposed instruction appears at B. Pet. 9.

16

remainder of the instruction should have been

given in order to present the issue whether her

allegedly false statements were made in ‘‘good

faith’’ and not ‘‘willfully.”’

The court below concluded, we submit correctly,

that this remaining portion was fully covered in

the instructions given by the trial judge (App. to

Pet., p. 20). The trial judge, summarizing the in-

dictments and the statute, twice employed the

specific phrase ‘‘knowingly and fraudulently’’ in

characterizing the offense, and he added, in the

summary of the indictments, the phrase ‘‘ willfully

and falsely”? (Tr. 2840-2841). In summarizing the

conspiracy count he employed the words ‘‘willfully

and knowingly” (Tr. 2842). Even more speci-

fically, the judge charged (Tr. 2850) :

[Ii is not an offense if a person swears to

something which he believes at the time to be

true, even though in fact such testimony was

false. It is not an offense to be mistaken.

There must be a wilful and conscious swear-

ing to that which the person knows is not the

truth.

And he specifically charged as to each of counts I

to XIII, inclusive, a total of seven times, as follows

(e.g., Tr. 2853) :

[I]f yeu find that the defendant’s testimony

before the Referee was false, as alleged, you

17

must also believe beyond a reasonable doubt

that he or she wilfully testified falsely, and

that he or she knew and believed his or her

testimony was false at the time he or she testi-

fied.

The jury would assuredly have been confused,

at the least, had the contract been singled out for

additional and special instruction. Moreover, the

proposed instruction was not correct since it would

have permitted the jury to acquit Belle if it found

the contract to have been made in good faith, even

though Belle subsequently learned of its fraudu-

lent nature before giving the false testimony.

What is clear and decisive, in any event, is that

the jury was amply charged on the requirement of

wilfulness, so that petitioner errs in arguing that

the requested instruction, admittedly confusing at

best, was additionally necessary for this purpose.

2. Both petitioners complain of the admission in

evidence of Exhibits 317 and 318, being summaries

of accounts prepared by the government account-

ant Price. They also complain of his conclusion

therefrom that there was no separate credit balance

of $127,602.80 due a purported ‘‘Blitz Products

Company”? and no separate debit balance of

$30,196.23 and $114,935.47, respectively due from

Joe Blitz and ‘‘ Joe Blitz, corn acecount,’’ but only

a single account receivable under which a net

balance was due from Joe Blitz to Portage Whole-

OLIN MILL PTE ON LTRS HS RDI I ON RAN PS EL ae Ge ETE oe OR oO

18

sale Company. (B. Pet. 2-3, 24, 27-38; J. Pet. 2-3,

6-7.) Petitioners seek to maintain this argument

that the accounts were separate, so that they may

advance the further contention that the separate

credit balance of $127,602.80 purportedly due

‘‘Blitz Products Company’’, ‘‘indicated’’ an ob-

ligation to Belle ‘‘in at least the amount of

$126,780, which was the total amount of her claim”’

(B. Pet. 29). |

The government accountant, Price, clearly based

his summary and his opinion on proper sources.

The records of Portage showing its accounts re-

ceivable consisted of individual sheets for each

account, prepared on a bookkeeping machine (Tr.

237). Price employed the carbon copy of the

account sheet in the name of Joe Blitz. By check-

ing original invoices and entries of cash receipts

against the account receivable sheet, he found that,

while the invoices and entries had been variously

written as dealings in different names (e.g., ‘‘Joe

Blitz’, ‘‘Blitz Products Company’’, and ‘Joe

Blitz-corn account’’), they had been posted to the

one account of Joe Blitz (Tr. 1580-1581, 1586-1590,

1596-1599).° The carbon account sheet was clearly

identified as ‘‘a Portage Wholesale Company

record”’ (Tr. 278, 1317, 1615) and it was received

in evidence without objection by petitioners, their

5 To the same effect in testimony of a Portage company

bookkeeper see Tr. 1242-1244.

19

only reservation being that it should not be of

‘binding effect’’ on them or conclusive of the facts

thereby attested (Tr. 508).° The summary and

conclusion, and the records upon which they were

based, were thus clearly admissible, 28 U.S.C.

1732(a), supra, p. 4; Burton v. Driggs, 20 Wall.

125, 136; Wigmore, Evidence (3d ed., 1940), See.

1230.

But apart from the fact that petitioners’ attack

on the aecountant’s summary and conclusion is

without basis in the rules of evidence, their own

® The account sheet of which petitioners complain was not

made the less a regular business entry by the facts that it was

a carbon copy, that the ribbon copy was missing (Tr. 399),

and that Blitz received it in the mail from a source he could

not identify. There was clear testin.ny, as we have shown

in the text, that the sheet was in fact a2 Portage Company

record, amply sustaining the conclusion, even apart from

petitioners’ failure to object, that it was properly admitted as

such.

Nor is the regularity of the accounting practice negated by

Blitz’ denial of liability for the items regularly billed to him

(Tr. 1018, 1055-1057, 1073-1074) or by an over-all arrange-

ment with Jake that the billings were to be to Blitz as a cover

for over-ceiling transactions which were for the ultimate bene-

fit of Portage Wholesale Company (Tr. 1074). The govern-

ment accountant purported to summarize only what the

records showed. The jury could believe the records or could

believe other evidence contradicting the truthfulness of the

records but, as stated in 28 U.S.C. 1732(a), the ‘‘cir-

cumstances of the making of such writing or record * * *

may be shown to affect its weight, but such circumstances shall

not affect its admissibility.’’ The propriety of admitting

Price’s summary of what the records showed remains un-

challenged by these side-issues urged by petitioners.

20

testimony refutes the conclusion for which this

attack is pressed. For Belle repeatedly testified

that she had never heard of such a company as

Blitz Products Company and had never had any

relationship of any kind with such a company (Tr.

600-601, 1513, 2068) while Jake denied that there

had ever been such an account as Blitz Products

Company (Tr. 2359-2361). Against this testimony,

it is impossible to perceive how petitioners can

claim that a jury could have found that an account

with this imaginary company ‘‘indicated’’ a debt

from Portage to Belle.’

3. Petitioner J. H. (Jake) Marachowsky con-

tends, finally, that the evidence against him on the

substantive counts was insufficient under the rule

prohibiting a conviction for perjury upon any-

thing less than the oath of at least one corroborated

7 Petitioners also complain of the belated bringing in of the

general ledger and of the inadequacies of general journal

entries, and they complain of Price’s failure to attempt a

balance of the accounts receivable ledger with the general

ledger (B. Pet. 35). But the available and pertinent records,

as aptly pointed out by the court below (App. to Pet., 21-22),

‘‘were all introduced in evidence or made fully available to

defendants before the conclusion of the trial, when it was still

possible to cross-examine the auditors or to recall them for

additional cross-examination.’’ See Tr. 481-482, 1545, 2390,

2822. It was not incumbent upon Price to wander afield into

reconciliations with other types of records that were con-

eededly incomplete, or to deal with items as to which no issue

existed.

POLLEN LENE PRET NLT ME EES

21

witness (J. Pet. 7-22). Accepting arguendo the

assumption (also accepted for purposes of this case

by the court below, App. to Pet. pp. 6, 9) that the

traditional rule of proof in perjury cases applies

here at all, it is clear that petitioner’s attack on

the sufficiency of the evidence is without merit.

It may be noted, first of all, that the falsity of

Jake’s testimony is proved by documents emanat-

ing from the accused himself so that the require-

ment of living witness plus corroboration is absent

here. United States v. Wood, 14 Pet. 430, 440,

444.° But while Jake’s books would alone dispose

of the case, there was testimony by at least one

witness plus various corroborating evidence (in-

cluding the books) to sustain the jury’s verdict on

each count. Summarized above (pp. 9-14) and

carefully analyzed in detail by the court below

(App. to Pet., pp. 9-16), the clear sufficiency of this

evidence secareely requires further discussion here

or further review by this Court. See Kann v.

United States, 323 U.S. 88, 93; United States v.

The books of Portage Wholesale Company were clearly

documents emanating from Jake. He was the active manager

and ran the business (Tr. 1448, 1457, 2360). The bookkeeper

Cook wrote on the invoices only ‘‘what [Jake] instructed me

to put on them’’ (Tr. 1359). Jake directed how receipts were

eredited (Tr. 1252, 1254). The jury was entitled to believe

Jake’s brother when he denied having had anything to do with

the company books (Tr. 1448), and to believe bookkeeper

Huschka’s recollection that Jake himself gave instructions for

entries in the books (Tr. 1242).

GREE LE FAI EH I ILE I RIC PORT RE BIN RG TER A SG TY SENN A CRE RED I

22

Johnson, 319 U.S. 503, 518; Delaney v. Umited

States, 263 U.S. 586, 589-590."

CONCLUSION

The questions presented were correctly decided

below and are, in addition, so lacking in substance

and so peculiar to the facts of this case as to de-

prive them of general importance. No conflict of

decisions or constitutional question is involved.

® Petitioner suggests (e.g., J. Pet. 12) that the testimony

of various witnesses that they purchased from Portage and

dealt only with Portage attests the falsity only of Belle’s

testimony that she herself sold the various items, but does not

show any falsity in Jake’s testimony that various debts were

due Belle. This contention simply misconceives the character

of Jake’s testimony by disregarding altogether the critical

fact that the testimony was given in the same Referee’s hear-

ing in which Belle had just testified two days before that she

had not only furnished money or owned certain property but

had herself delivered the money or sold the property to this

or that person. Jake’s confirmations of the various alleged

debts to Belle were thus plainly and precisely designed to

support her claims that she had done certain acts, conducted

negotiations, or made sales. So, for example, when J ake testi-

fied that he asked Belle to pay a draft for Spiritus and

eredited Spiritus’ check to her for that payment, this was

proved as false as Belle’s testimony to the same transaction by

direct evidence which showed that Belle never made any such

payment and that Jake never had oceasion, therefore, to record

any such credit. See p. 12, supra; cf. J. Pet. 11-12.

23

It is therefore respectfully submitted that the

petition for a writ of certiorari should be denied.

Rosert L. STERN,

Acting Solicitor General.

Warren Oxtney III,

Assistant Attorney General.

BEATRICE ROSENBERG,

J. F. BisHop,

Attorneys.

May 1953.

WU. S. GOVERNMENT PRINTING OFFICE 1953——252822/P.0.1573