United States v. Goldberg

Decision Date08 August 1955
Docket NumberNo. 15239-15246.,15239-15246.
Citation225 F.2d 180
PartiesUNITED STATES of America, Appellant, v. Bennett GOLDBERG, Appellee. UNITED STATES of America, Appellant, v. Donald Robert HAMILTON, Appellee. UNITED STATES of America, Appellant, v. Claude J. HUPP and John W. Reilly, Appellees. UNITED STATES of America, Appellant, v. Frank S. LEONARD, Appellee. UNITED STATES of America, Appellant, v. James D. O'CONNOR, Appellee. UNITED STATES of America, Appellant, v. Constantine W. PARZYCK and Steven F. Parzyck, Appellees (two cases). UNITED STATES of America, Appellant, v. Theodore WISNIEWSKI, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

Alex Dim, Asst. U. S. Atty., St. Paul, Minn. (George E. MacKinnon, U. S. Atty., St. Paul, Minn., was with him on the brief), for appellant.

Philip J. Stern, Minneapolis, Minn. (Simon Meshbesher, Minneapolis, Minn., was with him on the brief), for appellees Bennett Goldberg and Frank S. Leonard.

Linus J. Hammond, St. Paul, Minn. (Cummins, Cummins, Hammond and Ames, St. Paul, Minn., were with him on the brief), for appellees Claude J. Hupp and John W. Reilly.

T. H. Wangensteen, Minneapolis, Minn., and William P. Murphy, St. Paul, Minn. (Elmer J. Ryan, St. Paul, Minn., and Raymond J. Julkowski, Minneapolis, Minn., were with him on the brief), for appellees James D. O'Connor, Constantine W. Parzyck, Steven F. Parzyck, and Theodore Wisniewski.

Before GARDNER, Chief Judge, and JOHNSEN and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

The Government appeals from the judgment dismissing the indictment upon defendant's motion in each of the eight cases herein involved. The appeals are consolidated by stipulation. Jurisdiction to consider these appeals is conferred by 18 U.S.C. § 3731.

The appellees, who will hereinafter be designated as defendants, are retail on-sale liquor dealers and bartenders employed by them. Each indictment charged the defendant with violation of 26 C.F.R., § 175.121, 1952 Cumulative Supplement, which will hereinafter be referred to as the regulation, and which reads:

"Reuse of containers. No liquor bottle or other authorized container shall be reused for the packaging of distilled spirits except as provided in § 175.62, nor shall the original contents, or any portion of such original contents, remaining in a liquor bottle or other authorized container be increased by the addition of any substance."

Section 175.62, providing exceptions, is not pertinent here.

The regulation was promulgated by the Secretary of the Treasury, pursuant to 26 U.S.C. § 2871, which provides:

"Whenever in his judgment such action is necessary to protect the revenue, the Secretary is authorized, by the regulations prescribed by him * * * (1) to regulate the size, branding, marking, sale, resale, possession, use, and re-use of containers * * * designed or intended for use for the sale at retail of distilled spirits * * *."

The statute also provides a penalty for the willful violation of any regulation prescribed.

The first count of the Goldberg indictment reads:

"(26 U.S.C. Sec. 2871; Reg. 13, Sec. 175.121 (26 C.F.R., Sec. 175.121, 1952 Cumulative Pocket Suppl.).)
"The Grand Jury charges:
"During the period from on or about May 1, 1953, to on or about June 30, 1953, in the City of Minneapolis, County of Hennepin, State and District of Minnesota, one Bennett Goldberg, did, within the meaning of the terms used in the Code of Federal Regulations, Title 26, Part 175, as published in the Cumulative Pocket Supplement thereof, wilfully, wrongfully, and unlawfully reuse for the packaging of distilled spirits six marked liquor bottles, more or less, previously containing distilled spirits and labeled `Seagram\'s 7-Crown Blended Whiskey\', by increasing the original contents of each of said marked liquor bottles by the addition of a substance, to-wit, liquid distilled spirits subject to taxation under the Internal Revenue Laws of the United States, and such reuse was not within any of the methods authorized by Regulation 13, Sec. 175.62 (26 C.F.R., Sec. 175.62, 1952 Cumulative Pocket Supp.)."

All of the parties to these appeals have stipulated:

"That the indictment in the Bennett Goldberg case, Criminal No. 8590, shall be and hereby is considered to be a representative indictment and similar to those involved in all of the above entitled matters, save and except that indictment involving Constantine W. Parzyck and Steven F. Parzyck, Criminal No. 8608. All the indictments as they concern all the parties in the above entitled matters relate to the reuse of marked liquor bottles by increasing the original contents by the addition of a substance, to wit, liquid distilled spirits, whereas the indictment in Criminal No. 8608 as it concerns Constantine W. Parzyck and Steven F. Parzyck charges reuse of marked liquor bottles by increasing the contents by the addition of a substance, to wit, water."

It appears from the record that the indictment in Case No. 15,246 charges violation of 26 U.S.C. § 2868, and that the indictment in that case is not in the same form as the indictments in the remaining cases. However, no attempt is made in any of the briefs to show that Case No. 15,246 differs from the other cases. We shall, therefore, in conformity with the stipulation of the parties consider all cases except Case No. 15,245 (No. 8608 below), where the substance added was water, as being the same.

In support of their motions to dismiss in the court below and to sustain the judgments of dismissal, the defendants urge:

1. The indictments do not state the essential facts necessary to constitute an offense against the laws of the United States.

2. Sec. 175.121 of Regulations 13, purported to be adopted pursuant to Sec. 2871 and Sec. 2803, of Title 26 U.S.C. is so vague, unclear, indefinite and ambiguous as to make enforcement of it a denial of due process.

3. Sec. 175.121 of Regulations 13 goes outside the scope of the authority delegated to the Secretary of the Treasury by Title 26 U.S.C. Sec. 2871.

1. We believe that the indictments adequately state the essential facts constituting the offense charged. Rule 7 (c) of the Federal Rules of Criminal Procedure, 18 U.S.C. provides in part as follows:

"The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."

In United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 574, 31 L.Ed. 516, the Court states:

"* * * The object of the indictment is — First, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. * * *"

The Supreme Court in Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861, in speaking of the test for the sufficiency of an indictment, states:

"* * * The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.\' * * *"

This court in the recent case of Heasley v. United States, 8 Cir., 218 F.2d 86, 89, in holding an indictment charging an income tax violation sufficient, quoted and applied the test set out in the foregoing excerpt from the Hagner case. See also Dunne v. United States, 8 Cir., 138 F.2d 137, 145; Hewitt v. United States, 8 Cir., 110 F.2d 1, 5; Taran v. United States, 8 Cir., 88 F.2d 54, 56.

The indictment, which has been set out hereinabove, makes reference to the regulation violated and the statute pursuant to which the regulation was promulgated, and clearly charges that the defendant wilfully, wrongfully, and unlawfully reused for packaging of distilled spirits marked liquor bottles by increasing the original contents of said marked liquor bottles by the addition of a substance, to-wit, liquid distilled spirits subject to taxation. In Case No. 15,245 the indictment alleges that the substance added was water. Previous indictments against these defendants were dismissed by Judge Nordbye. His opinion supporting the dismissals is reported at D.C., 123 F.Supp. 385. The indictments dismissed by Judge Nordbye did not state what the substance added consisted of, and in this respect and others differed materially from the indictments now under consideration. The indictments involved in the present case do not allege the type of business in which defendants were engaged. Defendants contend that such an allegation is necessary in the indictment. The regulation is broad and prohibits the reuse of marked bottles by anyone. Consequently, the applicability of the regulation is not limited to any particular class of persons, and accordingly it was unnecessary that the nature of the business of the defendants be described.

The Government, in the court below and in its brief and oral argument here, conceded that the tax had been paid on the whiskey used to refill the marked bottles. Apparently what was done here was to add a cheaper brand of tax-paid whiskey to the contents of a partially-filled marked bottle of a more expensive brand of whiskey. Defendants contend that it was an essential element of the offense that the added whiskey be whiskey on which tax had not been paid, and that it was necessary to include an allegation to that effect in the indictment. We do not so read the regulation. By its plain terms the regulation makes it unlawful for anyone to increase the contents of...

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