Blumenthal v. United States

Citation158 F.2d 762
Decision Date28 February 1947
Docket NumberNo. 11232.,11232.
PartiesHarry BLUMENTHAL, Louis Abel, Lawrence B. Goldsmith, Samuel S. Weiss, and Albert Feigenbaum, Appellants, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Before DENMAN, HEALY, and BONE, Circuit Judges.

PER CURIAM.

The petition for rehearing is denied.

HEALY and BONE, Circuit Judges, concur.

DENMAN, Circuit Judge (dissenting).

The petition for rehearing should be granted and the judgments reversed. My concurrence in the decision is withdrawn and the accompanying opinion filed as a dissent to the court's opinion filed on December 16, 1946:

The statement of facts of the court's opinion has a fatal vacuum necessary to be filled to establish the conspiracy charged, though its circumstantial evidence warrants the inference of at least four other disconnected criminal conspiracies.

Abel, Blumenthal and Feigenbaum are shown to have been black marketers and should have been prosecuted for selling whiskey at over ceiling prices. Instead, the several prosecutions are sought to be avoided by attempting to throw a conspiracy net around them — a convenience to prosecutors but often dangerous to the cause of justice. Cf. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. ___.

The court's opinion is bare of facts, as is the evidence,

(1) That any of these three knew or was in any communication with any other of them;

(2) That any knew that any other obtained whiskey from the defendants Goldsmith and Weiss;

(3) That any of the three sellers knew that any other of them bought the whiskey from the so-called "common pool" of whiskey in the warehouse — a common pool only in the sense that each separately obtained his whiskey from it, but not a pool of which any of the three had common knowledge that any other of them had obtained his whiskey from it;

(4) That any knew that any other bought his whiskey at the same below-ceiling price (5) That any knew that any other sold his whiskey at the same or similar overceiling prices.

The obvious inference from the above proof and absence of other proof is that the unknown owner of the whiskey referred to in the court's opinion used each of Abel, Blumenthal and Feigenbaum separately as his agent to violate the law. This would constitute several separate conspiracies between the unproved owner and each of the proved sellers, but not a conspiracy among all four of them.

The owner is the common hub from which extend the three illicit sale conspiracies as spokes, but with no binding rim, as in the cases of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L. Ed. ___, and Canella v. United States, 9 Cir., 157 F.2d 470, 477.

Even if the circumstantial evidence of identity of purchase and sale price also warranted the more remote inference that each of these three sellers conspired with each other and the owner to violate the price ceiling, the first and obvious inference, of three separate agencies for the owner, must control. As we stated in reversing an instruction which failed to state that the inferences from circumstantial evidence must be "inconsistent with every reasonable hypothesis of innocence," of the crime charged. Paddock v. United States, 9 Cir., 79 F.2d 872, 875, 876:

"These instructions were erroneous. The rule with reference to the consideration of circumstantial evidence by the...

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7 cases
  • Caywood v. United States, 14417.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 11, 1956
    ...1946, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; Blumenthal v. United States, 9 Cir., 1946, 158 F.2d 883, rehearing denied, 9 Cir., 1947, 158 F.2d 762, certiorari granted 331 U.S. 799, 67 S.Ct. 1306, 91 L.Ed. 1824, affirmed 332 U.S. 539, 68 S. Ct. 248, 92 L.Ed. 154, rehearing denied 332 U.......
  • Blumenthal v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 28, 1947
    ...Atty., both of San Francisco, Cal., for appellee. Before DENMAN, HEALY, and BONE, Circuit Judges. Rehearing Denied February 28, 1947. See 158 F.2d 762. BONE, Circuit Appellants appeal from a conviction before a jury upon an indictment charging them, in one count, with the crime of conspirin......
  • United States v. Webb, 16494
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 21, 1966
    ...supra; American Tobacco Co. v. United States, supra; Blumenthal v. United States, 158 F.2d 883 (C.A. 9, 1946), rehearing denied, 158 F.2d 762 (C.A. 9, 1947), aff'd, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Miller, 358 F.2d 696 (C.A. 6, Careful consideration of this ......
  • United States v. Bushwick Mills, 50
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 23, 1947
    ...for a felony may be imposed. A similar contention was rejected in Blumenthal v. United States, 9 Cir., 158 F.2d 883, rehearing denied 9 Cir., 158 F.2d 762, certiorari granted 1947, 331 U.S. 799, 67 S.Ct. 1306. We likewise reject Finally the appellants contend that the evidence presented at ......
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