Cella v. United States

• Decision Date: 30 December 1953
• Docket Number: No. 10744.,10744.
• Citation: 208 F.2d 783
• Parties: CELLA v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

208 F.2d 783 (1953)

CELLA v. UNITED STATES.

No. 10744.

United States Court of Appeals Seventh Circuit.

December 2, 1953.

Rehearing Denied December 30, 1953.

COPYRIGHT MATERIAL OMITTED

John J. Toohey, Chicago, Ill., for petitioner.

Neil Brooks, Associate Sol., Donald A. Campbell, Atty., U. S. Dept. of Agriculture, Washington, D. C., Frank A. Gallagher, Regional Atty., U. S. Dept. of Agriculture, Chicago, Ill., J. Stephen Doyle, Jr., Sp. Asst. to Atty. Gen., for respondent.

Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

Petitioner seeks a review of an order of the Judicial Officer of the U. S. Department of Agriculture acting for the Secretary of Agriculture, suspending petitioner's registration under the Packers and Stockyards Act, 7 U.S.C.A. § 181 et seq., as a dealer in livestock in the Union Stockyards, Chicago, Illinois.

This proceeding was instituted by serving upon petitioner an order of inquiry and notice of hearing which charged that on specific occasions in October, 1950, and at divers other times during the year 1950, in connection with the sale of cattle, by reason of cash payments made or other compensation given, petitioner caused various weighmasters to weigh cattle at more than their true weight and to issue scale tickets showing weights greater than the true weights of the cattle. The order of inquiry also averred that during 1950 petitioner failed to keep such records and memoranda of his business transactions as would fully and correctly disclose all expenses incurred in his dealer operations, and that he wilfully caused the making of false entries in the records of the stockyards company.

The answer of petitioner admitted his registration as a dealer and that the Union Stockyards is a posted stockyards subject to the provisions of the Packers and Stockyards Act, but it denied the other allegations. In addition petitioner moved that the allegation that he had paid certain sums of money to weighmasters "at divers times during the year 1950" be stricken or, in the alternative, that a more detailed statement be given.

It came to the attention of the Secretary of Agriculture that there was a widespread practice at the Union Stockyards in Chicago of dealers in livestock bribing weighmasters to falsely weigh cattle. The Director of the Livestock Branch, Production and Marketing Administration, estimated the total value of such false weights to be approximately $1,000,000 a year. An investigation was undertaken.

The proceeding involving the petitioner, Anthony J. Cella, was one brought against 56 registered dealers at the Chicago Union Stockyards. Consent orders suspending the dealer's privileges were issued in 23 cases, but in 29 cases, including the one now before us, an administrative hearing was held before a hearing examiner appointed under Section 11 of the Administrative Procedure Act, 5 U.S.C.A. § 1010.

Five former weighmasters were called as witnesses. The government filed a motion with respect to each weighmaster, requesting that he be permitted to testify in a single appearance with respect to all the dealers to whom it was claimed he had given false weights. In the instant proceeding the government filed 5 separate motions to take the testimony of the five weighmasters as to their transactions with the petitioner. The proposed procedure was vigorously protested and objected to by petitioner, who claimed that the method proposed was a mass approach which had the effect of depriving him of a separate hearing on the merits, and that such procedure would tend to confuse the witnesses and the examiner.

The government urged that if each case were heard separately most of the weighmasters would be required to appear in from 20 to 40 different proceedings covering a period of from one year to eighteen months; that the memories of witnesses would become less clear with the passage of time; that some of the witnesses would not be available at the later hearings; that separate hearings would be unduly burdensome for the witnesses; that the possibility of intimidating witnesses would be increased (and a showing was made that one weighmaster had already been threatened by means of an anonymous telephone call).

Overruling petitioner's objections, the procedure adopted was that each weighmaster would testify and then be cross-examined with respect to the transactions involving a particular dealer. The proceeding against that dealer would then be recessed and the testimony of such weighmaster would be taken in the other proceedings in which his testimony would be relevant. For the convenience of attorneys representing several dealers, hearings were scheduled so that all the cases handled by a particular attorney or law firm in which a particular witness testified were heard consecutively and on fixed dates.

The examiner announced that each case would be considered separate and distinct from the others and that full opportunity would be given "for complete cross-examination and the confronting of witnesses." He ruled that substantial rights of the dealers would not be prejudiced by the proposed procedure.

The five former weighmasters testified before the hearing examiner on August 14, 21, 23, and September 19, 1951, and each was cross-examined by counsel representing petitioner. The petitioner testified in his own behalf on November 9, 1951.

In the Chicago Union Stockyards the weighmasters' cages are located inside the scale house. When cattle are to be weighed, they are driven upon a scale platform, and by speaking to the weighmaster through a tube, a commission firm representative or stockyard employee informs the weighmaster of the names of the buyer, seller and commission house. The weighmaster determines the weight of the draft of cattle by moving the main poise along the weighbeam and adjusting the fractional poise until the needle of the over-under indicator is in the center of the indicator target, and the weighbeam is balanced. He then inserts the scale ticket into the slot of the printing mechanism which is a part of the poise assembly, and, pressing a hand lever, thus records the weight of the cattle on the scale ticket. The correct weight appears on the scale ticket only if the weighbeam is properly balanced and providing the ticket is printed without moving any part of the poise assembly. However, any desired weight could be impressed on the scale ticket merely by moving the poise assembly to the desired position prior to pressing the handle of the printing device. The weight printed on the scale ticket determines the price which the buyer pays to the seller.

The five weighmasters testified that in order to overweigh petitioner's cattle, they first properly balanced the weighbeam and then moved the poise assembly to add weight before pressing the lever of the printing device.

One of the former weighmasters, Michael Shanahan, testified that he had weighed cattle for petitioner in 1950 and that petitioner personally told him "what weight he wanted put on them"; that pursuant to such requests he added weight to various drafts of cattle weighed for petitioner during 1950; that he received $40 to $50 during 1950 for adding weight to cattle being sold by petitioner, Anthony Cella.

The four other former weighmasters testified that they had added weight to cattle for Anthony Cella, but were requested to do so by Anthony's brother, John Cella; and that John Cella told them that the cattle belonged to Anthony. Cornelius Knudson testified that on several occasions during the year 1950 he added 100 lbs. weight to Anthony Cella's cattle, and that John Cella paid him at the rate of $3 per 100 lbs. for the weight added. Edward Hoffman testified that in the latter part of November or early part of December, 1950, he added weight to the cattle he weighed at scale A-3 for Anthony Cella; that the cattle were brought in by John Cella, and that he was paid $4 or $5 in the scale house by John Cella for the transaction. He also testified that he added 100 lbs. on another draft of Anthony Cella's cattle but was not paid for that transaction.

The five former weighmasters gave their testimony covering transactions which occurred from 8 to 20 months prior to the date of their testimony. During the period covered each had weighed livestock at various scales in the stockyards. Usually each weighmaster would be assigned to one scale for about two or three weeks and then shifted. The weighmasters would often weigh as many as 400 drafts of cattle in an average weighing day. At the time that they testified all had been discharged from their jobs in the Chicago Union Stockyards. The witnesses could not recall the exact scales or the precise weights of cattle, nor the exact dates when the transactions took place, but in some instances did recall the amount of weight that had been added.

On October 31, 1952, the Judicial Officer issued the decision and order under review in this case. The findings of fact were substantially similar to the findings which had been made by the hearing examiner. Among same were that on various occasions during the year 1950 petitioner personally requested Weighmaster Shanahan to add weight to certain drafts of cattle which the petitioner was selling and that Shanahan did so; that on various occasions during the year 1950 petitioner's brother, John Cella, requested several of the weighmasters, who were named, to add weight to drafts of cattle which petitioner was selling, and that scale tickets were issued showing the weights of such cattle to be greater than the correct weights thereof; that petitioner or his brother, John Cella, acting for the petitioner, gave cash payments to each of such weighmasters; that these payments were intended by the petitioner and his brother, John Cella, and accepted by the weighmasters, as compensation for the weight added to the drafts of petitioner's cattle; that John Cella acted as an agent of or co-principal...