Fippin v. United States, 11508.

• Citation: 162 F.2d 128
• Decision Date: 19 May 1947
• Docket Number: No. 11508.,11508.
• Parties: FIPPIN et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

162 F.2d 128 (1947)

FIPPIN et al. v. UNITED STATES.

No. 11508.

Circuit Court of Appeals, Ninth Circuit.

May 19, 1947.

James F. Boccardo, of San Jose, Cal., for appellant.

Miles N. Pike, U. S. Atty., and Bruce R. Thompson and Wm. J. Kane, Asst. U. S. Attys., all of Reno, Nev. for appellee.

Before STEPHENS, BONE and ORR, Circuit Judges.

BONE, Circuit Judge.

On October 4, 1945, acting under the authority of Title I of the First War Powers Act,¹ the President issued an Executive Order, Executive Order No. 9638, 50 U.S. C.A.Appendix, § 601 note (10 F.R. 12,591) which terminated the existence of the War Production Board and transferred all its functions and powers to another agency created by the same Order, the Civilian Production Administration. The new agency was directed to use the functions and powers transferred to it by this Order "to further a swift and orderly transition from wartime production to a maximum peace-time production * * * and to that end shall * * * (a) expand the production of materials which are in short supply, (b) limit the manufacture of products for which materials or facilities are insufficient, (c) control the accumulation of inventories so as to avoid speculative hoarding and unbalanced distribution which would curtail total production, (d) grant priority assistance to break bottlenecks which would impede the reconversion process, (e) facilitate the fulfillment of relief and other essential export programs, and (f) allocate scarce materials and facilities necessary for the production of low-priced items essential to the continued success of the stabilization program of the Federal Government."²

Thereafter the Civilian Production Administration acting under the authority of the Second War Powers Act³ in "the fulfillment of requirements for the defense of the United States" issued Veterans' Housing Program OrderNo. One (hereinafter referred to as VHP-1) on March 26, 1946. This Order (VHP-1) forbade all construction (with certain minor exceptions not applicable here) begun after March 26, 1946 unless authorized by the local agency of the Civilian Production Administration.⁴

On or about May 1, 1946, appellants, Chester Fippin and the St. Claire Corporation, began, and thereafter continued without such authorization from the Civilian Production Administration, the construction of the "Tahoe Sky Harbor Casino" in the state of Nevada. Since under the Second War Powers Act the wilfull violation of any Order issued thereunder is a misdemeanor,⁵ appellants were charged with violation of the Order by an information consisting of two counts. The information set forth VHP-1 in general terms, and in the first count charged that the defendants (appellants here) "on or about May 1, 1946, without the authorization of the Civilian Production Administration, wilfully did begin the construction of commercial buildings * * * subsequently known as `Tahoe Sky Harbor Casino', and that the cost of said commercial buildings was approximately Forty Thousand Four Hundred Five Dollars and Eighteen Cents ($40,405.18), the same being new construction of the type prohibited by the aforesaid Order VHP-1, and was * * * in excess of the One Thousand Dollar ($1,000.00) exemption provided by * * * said order."

The second count realleged all of the allegations of the first count save that it charged only that the defendants "wilfully did carry on and participate in the construction of commercial buildings." At the trial, the first count was dismissed upon the motion of the Government, and appellants entered a plea of nolo contendere as to the second. The district judge then entered judgment fining appellant Chester Fippin $1,500.00, and appellant St. Claire Corporation, $6,000.00. Appellants appeal from that judgment.

The sole question raised by this appeal is whether the information states sufficient facts to charge a crime against the United States. In essence, the argument presents two material issues, one, that the facts charged are not a violation of the Order (VHP-1), and the other, that the Order itself is invalid, null and void.

In respect to the former, appellants contend that the information failed to negative the following possibilities: (a) that the construction was begun before March 26, 1946 and was therefore not in violation of the terms of the Order, (b) that the "estimated cost at the beginning of the construction" was less than $1,000 and (c) that the construction was a commercial airport. These contentions are without merit. It is not necessary that an information or indictment negative every possibility or combination of facts that could technically be a defense. McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 67 L.Ed. 301; Rose v. United States, 9 Cir., 149 F.2d 755. It is sufficient if the facts as stated in the information are definite enough so that the defendant may know of what he is charged and so as to protect him from a subsequent prosecution for the same offense. Maloof v. United States, 9 Cir., 159 F.2d 62, cert. denied 67 S.Ct. 1306, and the cases there cited.

Moreover, the plea of nolo contendere gave the district court no opportunity to pass upon these matters. The rule is well settled that where, as here, no Bill of Particulars was requested, and no attack upon the sufficiency of the information was made in the lower court, and where, as here, no prejudice is shown, the information will be deemed sufficient (upon appeal) to have adequately apprised the defendant of what he was charged. After verdict every intendment must be indulged in support of the information. Koa Gora v. Territory of Hawaii, 9 Cir., 152 F.2d 933, cert. denied 328 U.S. 862, 66 S.Ct. 1362, 90 L.Ed. 1632, and cases there cited. These well established rules of law dispose of the first argument.

As to the second issue, it is not contended that either the First or Second War Powers Act is unconstitutional, but appellants assert that the Order (VHP-1) is invalid and void, because it is beyond the powers of the Civilian Production Administration. In support of this proposition they advance three arguments:

First: They contend that the Order (VHP-1) issued by the Administrator is an attempt to exercise the war powers of the Federal Government and since hostilities have ceased any use of the war powers to control a peace time emergency is unconstitutional and void. To bolster this argument they cite the opinion of Justice Holmes in Chastleton Corp. v. Sinclair, 264 U.S. 543, 547, 44 S.Ct. 405, 406, 68 L.Ed. 841 where he said: "A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases * * *."

Assuming without deciding that the powers asserted in VHP-1 are "war powers", the argument of appellants fails in that, although the hostilities have terminated the emergency upon which the First and Second War Powers Acts depend still exists. Fleming v. Mohawk Wrecking & Lumber Co., 67 S.Ct. 1129. It follows, therefore,...