Blumenthal v. United States Goldsmith v. Same Weiss v. Same Feigenbaum v. Same 57, Nos. 54

• Court: United States Supreme Court
• Writing for the Court: RUTLEDGE
• Citation: 68 S.Ct. 248,332 U.S. 539,92 L.Ed. 154
• Parties: BLUMENTHAL v. UNITED STATES. GOLDSMITH v. SAME. WEISS v. SAME. FEIGENBAUM v. SAME. to 57
• Docket Number: Nos. 54
• Decision Date: 22 December 1947

332 U.S. 539 68 S.Ct. 248 92 L.Ed. 154 BLUMENTHAL

v.

UNITED STATES. GOLDSMITH v. SAME. WEISS v. SAME. FEIGENBAUM v. SAME.

Nos. 54 to 57. Argued Oct. 23, 1947. Decided Dec. 22, 1947. Rehearing Denied Jan. 19, 1948.

[Syllabus from pages 539-541 intentionally omitted]

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Mr. Arthur B. Dunne, of San Francisco, Cal., for petitioners Blumenthal, Goldsmith, and Feigenbaum.

Mr. Samuel S. Weiss, pro se.

Beatrice Rosenberg, of Washington, D.C., for respondent.

Mr. Justice RUTLEDGE delivered the opinion of the Court.

The four petitioners and Abel, another defendant, were convicted of conspiring to sell whiskey at prices above the ceiling set by regulations of the Office of Price Administration, in violation of the Emergency Price Control Act. 50 U.S.C.A.Appendix, §§ 902(a), 904(a) and 925(b), 50 U.S.C.A.Appendix, §§ 902(a), 904(a), 925(b). The charge was made pursuant to the general conspiracy statute, § 37 of the Criminal Code, 18 U.S.C.A. § 88. The convictions were affirmed by the Circuit Court of Appeals, one judge dissenting. 158 F.2d 883, dissenting opinion at 158 F.2d 762. Abel has not sought review in this Court. Certiorari was granted, 331 U.S. 799, 67 S.Ct. 1306, as to the other four defendants because we thought important questions were presented concerning the applicability of our recent decision in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557.

We did not limit our grant of certiorari to that question, however, and on the record it is inseparably connected with the other issues, which relate to the admissibility and sufficiency of the evidence. Accordingly we have considered all of petitioners' contentions. The com-

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petent proof was clearly sufficient to show that each petitioner had aided in the whiskey's illegal sale and had conspired with others to do so. The only phase of the case meriting further attention is whether, because of a difference in the state of the proof affecting two groups of defendants, the proof, in variance from the indictment, shows that there was more than one conspiracy.

I.

The indictment charges a single conspiracy in a single count. Ten overt acts are specified. The Government alleged and sought to establish that all of the defendants and other unidentified persons conspired together to dispose of two carloads, each consisting of about 2,000 cases, of Old Mr. Boston Rocking Chair Whiskey at over the ceiling wholesale prices.

This whiskey was shipped by rail from the distiller or his agent to the Francisco Distributing Company, in San Francisco, in December, 1943. Goldsmith was the individual and sole owner of that business and held a wholesale liquor dealer's basic permit as required by federal law. Weiss, his former partner, was sales manager for the business. Feigenbaum operated the Sunset Drugstore in San Francisco. Blumenthal owned and operated the Sportorium, a sporting goods and pawn shop in the same city. Abel either owned or worked in a jewelry store in Vallejo, California. The evidence does not show that any of these last three was connected with Francisco in any way except that each had part in arranging sales and deliveries of portions of these two shipments to purchasers. These were tavern owners in San Francisco and near-by towns such as Vallejo, Santa Rosa, Livermore, Cottonwood and El Cerrito. Proof of the activities of Feigenbaum, Blumenthal and Abel was made largely by

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the testimony of the various tavernkeepers with whom they respectively dealt.

The evidence showed that on arrival of the whiskey in San Francisco legal title was taken in Francisco's name, in which the shipping documents were made out; that it honored sight drafts for both shipments, upon Goldsmith's directions to Francisco's bank to pay them out of Francisco's account; that some of the whiskey was delivered ex car directly to tavernkeepers who previously had arranged for purchases in lots varying from 25 to 200 cases; that the remainder was placed in storage with the San Francisco Warehouse Company, pursuant to arrangements made by Weiss, and thereafter was delivered by the warehouse to various purchasers holding invoices issued by Francisco¹ on orders given by Weiss. The ex car deliveries also were made pursuant to similar invoices and orders.

If further appeared that the cost of the whiskey to Francisco was $21.97 a case,² the wholesale ceiling price was $25.27, and Francisco received, by check of the purchasing tavernkeepers, $24.50 for each case sold. There was thus left to it a margin above cost of $2.53 on each case, out of which were to come storage charges, if any, and legitimate net profit.

Thus far no illegal act, transaction, intent or agreement appears. But by the testimony of purchasing tavernkeepers the Government proved that in connection with each sale the purchaser had paid to the selling intermediary, in addition to the $24.50 per case remitted

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by check to Francisco, an additional sum in cash amounting roughly to from $30 to $40 per case. Thus the actual cost to the retailer was from $55 to $65 per case.

In some instances the identity of the person arranging the transaction for the seller and receiving the cash payment was not established or known to the witness testifying to the sale and its details. In others, however, Blumenthal, Feigenbaum or Abel was identified as the salesman or intermediary. It was not brought out with what person or persons Abel, Feigenbaum, Blumenthal or the other salesmen dealt in securing the whiskey from Francisco.³ In two sales, Figone, a tavernkeeper of El Cerrito, testified he arranged for the purchases in Francisco's offices, but could not identify the person with whom he dealt.

In all instances, however, whether involving sales to San Francisco or to out-of-town dealers and whether through identified or unidentified selling intermediaries, the sales followed the general pattern described above. That is, once the understanding had been reached, the purchaser made out his check at the price of $24.50 per case, to the order of 'Francisco Distributing Co.,' at the direction of the selling intermediary, to whom the check was delivered; at the same time or later the purchaser

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also paid in cash to the intermediary the difference between the amount of the check and the agreed overceiling purchase price; then or later the purchaser received invoices in the name of Francisco for the number of cases of Old Mr. Boston Rocking Chair Whiskey bought showing only the legal price of $24.50 per case; and thereafter the purchaser received delivery of the whiskey from the warehouse company, by freight in the case of out-of-town buyers. Weiss gave the warehouse company instructions for shipments or local deliveries. Francisco collected the checks by endorsing and sending them through its bank for collection. Slight variations in detail of the pattern appear in some instances but they are insignificant for our purposes.

The foregoing is substantially the evidence used, not only in part to show the conspiracy, but also to connect Blumenthal, Feigenbaum and Abel with it. In addition to the evidence already related as it affects Goldsmith and Weiss, the court received as to them alone the testimony of Harkins, a special investigator for the Alcohol Tax Unit of the Treasury Department. He related conversations had with Goldsmith and Weiss, during which important admissions were made by one or the other or both. Those admissions give rise to the crucial problems in the case.

At the initial conference 'early in January,' 1944, attended by both Goldsmith and Weiss, the latter 'did most of the talking.' Questioned concerning who purchased the two carloads and how they were handled, Weiss said 'that his firm received $2.00 a case for clearing it through their books.' Goldsmith concurred in this and both stated that they divided the $2.00, each taking a dollar. 'They both stated, agreed, that they did not sell any of the whiskey. It was sold by others, and they received

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the check generally for the payment for the whiskey in advance of the date that they had to take up the sight draft bills of lading. At that time they did not tell us who actually sold the whiskey.'

Later conferences held separately with Goldsmith and Weiss simply confirmed the substance of the first to the effect that Francisco was not the actual owner, but that Goldsmith and Weiss were acting for an unidentified person in handling the shipments in Francisco's name.⁴ The identity of the owner was not established. But Goldsmith added the admission that he wrote most of the invoices.

Shortly after the trial began the court announced that it would save time and be fairer to all for the evidence to be received initially only as against the particular defendant or defendants to whom it appeared expressly related, reserving to the Government, however, the right to move for its admission as against any or all of the other defendants whenever in the Government's opinion

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sufficient facts had been introduced to show such defendants to have been connected with the conspiracy charged.

This course was followed. At the close of the Government's case, the court granted its motion to admit all of the evidence as against all of the defendants, except that it declined to allow Harkins' testimony concerning his conversations with Goldsmith and Weiss to be admitted as against the defendants Blumenthal, Feigenbaum and Abel. That testimony however was allowed to stand against both Goldsmith and Weiss insofar as it related the conversation had in the presence of both, and as to each of them respectively to the extent that the other interviews took place in his presence.

The court overruled numerous objections to these rulings by each defendant. None offered evidence in his own behalf.

Following its rulings on admissibility, the trial court concluded as against various...