159 F.2d 890 (2nd Cir. 1947), 93, United States v. Shapiro

Docket Nº:93, 20366.
Citation:159 F.2d 890
Case Date:February 07, 1947
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 890

159 F.2d 890 (2nd Cir. 1947)




Nos. 93, 20366.

United States Court of Appeals, Second Circuit.

February 7, 1947

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Menahem Stim, of New York City (Curran & Stim, of New York City, on the brief), for appellant.

John J. Donovan, Jr., Asst. U.S. Atty., of New York City (John F. X. McGohey, U.S. Atty., of New York City, on the brief), for appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Defendant, a wholesaler of fruit and produce, was convicted of violating price control regulations by requiring a customer to purchase other produce along with lettuce. On this appeal he contests a conviction absent proof of violation of ceiling prices; but we have held proof of a tie-in sale alone sufficient to convict under this self-same regulation. United States v. George F. Fish, Inc., 2 Cir., 154 F.2d 798, certiorari denied George F. Fish, Inc., v. United States, 66 S.Ct. 1377. Certain other assigned errors can be summarily dismissed. The regulation was duly published in the Federal Register; 1 and in any event the court properly took judicial notice of it without formal proof. Cha v. United States, 152 U.S. 211, 221, 222, 14 S.Ct. 513, 38 L.Ed. 415; Thornton v. United States, 271 U.S. 414, 420, 46 S.Ct. 585, 70 L.Ed. 1013. Defendant's offer to prove that on occasions other than those charged he sold lettuce without tie-in with other vegetables was properly rejected, as the evidence was irrelevant. 1 Wigmore on Evidence, 3d Ed.1940, § 195, pp. 665, 666; State v. Ferguson, 71 Conn. 227, 41 S. 769. And the evidence of the customer D'Avino of the five tie-in sales to him was sufficient to justify the jury's verdict, even against his own denials. This leaves as the substantial and important question defendant's claim that the prosecution violates his constitutional and statutory immunity because the leads from which it developed were obtained from his books, produced by him in obedience to a subpoena issued by the Price Control Administrator.

The subpoena of the Administrator had required defendant to produce his sales records for September, 1944, at the local price control office. The Administrator, by a previous valid regulation, Sec. 14 of Art. 2 of Sec. 1439 of MPR 426, had required such records to be kept by persons of defendant's trade status. When defendant appeared with his books he asked what immunity he would receive and was told he would be given whatever immunity flowed as a matter of law from the production of the books. He then made formal claim for constitutional and statutory immunity, and handed over the books. Obtaining the names of customers from these books the price control officials discovered through investigation that DAvino was prepared to testify as to tie-in sales as of an earlier period, namely, August, September, and November, 1943.

Defendant bases his claim to immunity

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on the Fifth Amendment and on Sec. 202(g) of the Emergency Price Control Act, 50 U.S.C.A.Appendix § 922(g), which is as follows: 'No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege.' 2 The Compulsory...

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