Coleman v. United States

• Decision Date: 18 March 1946
• Docket Number: No. 10059.,10059.
• Citation: 153 F.2d 400
• Parties: COLEMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

153 F.2d 400 (1946)

COLEMAN v. UNITED STATES.

No. 10059.

Circuit Court of Appeals, Sixth Circuit.

January 28, 1946.

As Amended March 18, 1946.

M. L. Okun, of Toledo, Ohio (M. L. Okun, A. A. Haddad and Michael V. DiSalle, all of Toledo, Ohio, on the brief), for appellant.

Gerald P. Openlander, Asst. U. S. Atty., of Toledo, Ohio (Don C. Miller, of Cleveland, Ohio, and Gerald P. Openlander, of Toledo, Ohio, on the brief), for appellee.

Before HICKS and SIMONS, Circuit Judges, and PICARD, District Judge.

PICARD, District Judge.

This is an appeal from conviction of defendant by the United States District Court for the Northern District of Ohio, Western Division, without a jury, on a six count indictment alleging violation of Title 18, Section 80, U.S. Code, 18 U.S.C.A. § 80, and Section 18.2, Article XVIII of General Ration Order No. 5 issued by the Office of Price Administration.

The first three counts charge that defendant, by falsely representing the number of customers served in three different periods upon which his applications were based, obtained more than his quota of meat ration points.

The second three counts charge failure to keep the proper daily records exacted from restaurants in defendant's particular class.

It is his claim as to the first three counts that his representations made to OPA couldn't be used against him in a criminal prosecution and that even if properly admitted, the evidence upon which he was convicted falls far short of weight beyond a reasonable doubt; that it is in character so tenuous and flimsy as to be entirely in the realm of guess and conjecture.

The three applications covered by the indictment represent that defendant had served from 75,000 to 85,000 persons during each of three two month periods, when — it is alleged — he had served not to exceed 10,000 during such times; and while defendant insists that the first three counts allege violation only of General Ration Order No. 5, it is a fact that they are based rather upon Section 80, Title 18 of the Code which makes it a crime to "knowingly and willfully falsify or conceal * * * or make * * * any false or fraudulent statements * * * in any matter within the jurisdiction of any department or agency of the United States."

To combat these charges appellant refers to one section of General Ration Order No. 5 and one of the Emergency Price Control Act.

Section 18.3 of General Ration Order No. 5 is as follows: "Sec. 18.3 Disclosure of Information. (a) Information and documents obtained pursuant to this Order will not be disclosed, in response to subpoena or otherwise, to any person other than the person furnishing such information or documents unless the Administrator of the Office of Price Administration (or a representative of the Office of Price Administration designated by him) determines that the requested disclosure is not contrary to law and consents to such disclosure."

Appellant insists that under this paragraph applications filed by him could not be used in criminal proceedings because his consent to such disclosure was not even alleged in the indictment; no evidence of such consent was produced at the trial and no proof that the Administrator "or a representative of the Office of Price Administration designated by him" had determined that the requested disclosure of such applications was not contrary to law and therefore had never consented to such disclosure.

Defendant also contends that admission of his applications in evidence violates subdivision (h) Section 202, Title 50 App. U. S.C. Section 922(h), 50 U.S.C.A. Appendix § 922(h), of the Emergency Price Control Act which provides: "(h) The Administrator shall not publish or disclose any information obtained under this Act that such Administrator deems confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless he determines that the withholding thereof is contrary to the interest of the national defense and security."

We cannot agree with appellant for four reasons:

First (Sec. 18.3, G. R. O. No. 5), the act of the Administrator through his subordinates in presenting these facts to the grand jury is of itself a determination that the requested disclosure is not contrary to law and that he consents to the same;

Second (Section 202, Subdivision h, E. P. C. A.), there is nothing to show that the administrator deemed the applications for ration books confidential; there was no evidence that appellant had made a request for their "confidential treatment"; and finally, here again the administrator being the complaining party and having presented the contents of all three applications, first to the grand jury and then to the district court, must have determined that withholding thereof would be "contrary to the interest of the national defense and security";

Third, that if it should be determined that the acts of the administrator or his representative did not meet all technical requirements of the OPA provisions it must be borne in mind that in this action we are not dealing with a disclosure protected by OPA limitations. The charge here is alleged violation of a separate statute, Title 18, Sec. 80 U.S.C.; 18 U.S.C.A. § 80, aimed to punish those who cheat, defraud or give false information to any department of the government and as stated in United States v. Kapp, 302 U.S. 214, 58 S.Ct. 182, 184, 82 L.Ed. 205: "Such questions (challenging right to present such false statements or representations in a criminal suit) cannot be raised by those who make false claims against the Government." (Words in parentheses ours.) United States v. Mulligan, D.C., 268 F. 893; Rodgers v. United States, 6 Cir., 138 F.2d 992; Bowles, Administrator v. Chew, D.C., 53 F.Supp. 787.

Fourth, that it would be paradoxical to provide a penalty in one law for the giving of false information and then prohibit proof of the document disclosing the fraud on a presumed protection under the constitution or some act of Congress. The falsifier would then be permitted to escape punishment while retaining benefits of his fraud and such an interpretation would assuredly nullify the Emergency Price Control Act. When it is recalled that this was a war measure deemed necessary to assure the feeding of our men in service, to some extent our allies, and to assure an equitable distribution for the civilian population of the United States it could not have been expected that patriotism alone would suffice as a retaining wall. A legal barricade so riddled with loopholes and escapes would have only lightly deterred those not patriotically inclined. Self-preservation would have started a stampede of avoidance and the price control act would have been of no force and effect. See United States v. Mulligan supra, 268 F. 897; Wilson v. United States, 221 U.S. 361, 384, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558.

As for the proof presented to support the first three counts, we think the District Judge had sufficient. It was not guess work by any means, although witnesses were hostile to the government in most instances and as a matter of fact, one of them, the manager, later purchased appellant's business. Appellant's records were not complete and therefore the government had to rely upon statements of those who had served and worked in the restaurant and upon other proof available. But the evidence was conclusive that no such number of persons claimed by him when making application for ration points were or even could have been served with petitioner's limited facilities...