Fredrick v. United States

Decision Date13 October 1947
Docket NumberNo. 11259.,11259.
Citation163 F.2d 536
PartiesFREDRICK et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

Abraham Gottfried, of Los Angeles, Cal., for appellant.

James M. Carter, U. S. Atty., Ernest A. Tolin and William Strong, Asst. U.S. Attys., all of Los Angeles, Cal., for appellee.

Before GARRECHT, STEPHENS and ORR, Circuit Judges.

Writ of Certiorari Denied October 13, 1947. See 68 S.Ct. 87.

GARRECHT, Circuit Judge.

On January 22, 1946, the appellants were jointly charged, in a criminal information containing eleven counts, with violation of the Second War Powers Act of March, 1942, 50 U.S.C.A.Appendix, § 633. Six of the eleven counts alleged the unlawful and willful acquisition, possession and control of "counterfeit and forged ration coupons, purporting to represent * * * ration points of the type used for meats, fats, fish and cheese, and purporting to be valid for the month of May, 1945". Four counts charged illegal use of such coupons, and the eleventh count set forth that the appellants had unlawfully acquired, possessed, and controlled counterfeit and forged ration coupons purporting to represent Stamp No. 36 of War Ration Book No. 4, "each purporting to be valid for five pounds of sugar for the month of May, 1945".

The appellants filed a demurrer, a motion to quash, and a motion for a bill of particulars, each of which was denied.

After presenting its evidence, the appellee moved to amend the information so as to substitute the words "ration documents" for the words "ration coupons" wherever the latter appeared in the information. Claiming surprise, the appellants objected, but the court below permitted the appellee to amend.

"In the interest of expediency", the appellee voluntarily dismissed four counts. After the court had expressed the view that "the evidence is insufficient to tie these defendants into the depositing of any of the ration coupons", the appellee dismissed four more counts. This left only Counts 9, 10, and 11 to be considered by the jury.

After setting forth the jurisdictional basis for the prosecution and the various provisions of General Ration Order No. 8 that the appellants are alleged to have violated, the three counts are in substance as follows:

9. On or about May 1, 1945, in Los Angeles, the appellants willfully and unlawfully acquired, possessed, and controlled 6,000 counterfeit and forged ration documents, purporting to represent approximately 60,000 ration points of the type used for meats, etc., and purporting to be valid during May, 1945, which were not acquired, etc., by the appellants personally or as agents for another, in accordance with Revised Ration Order No. 16, or any other ration order, for the reason that said documents were not issued to them, but were acquired by the appellants without the transfer therefor at any time of foods covered by said Order No. 16, and had been purchased by the appellants.

10. On or about May 20, 1945, the appellants acquired, etc., approximately 20,000 counterfeit and forged ration documents, purporting to represent about 200,000 ration points of the type used for meats, etc., and purporting to be valid for May, which were not acquired, etc., by appellants personally, etc., in accordance with Order No. 16, etc., for the reason that the documents were not issued to the appellants, etc., but were acquired by them without the transfer therefor at any time of foods, etc., and had been purchased by them.

11. On or about May 28, 1945, the appellants acquired, etc., about 3503 counterfeit and forged ration documents, purporting to represent Stamp No. 36, etc., and each purporting to be valid for five pounds of sugar during May, which documents were not acquired by the appellants personally, etc., in accordance with Second Revised Ration Order No. 3, or any other ration order, since the documents were not issued to the appellants, etc., but were acquired by the appellants without the delivery and transfer of any sugar therefor, and were purchased by the appellants.

At the close of the appellee's case, counsel for the appellants moved that these three counts be dismissed as to the appellant Gilbert. In their brief, counsel refer to that motion as being also one for a "directed verdict". Technically, the assumption is not accurate, but we do not make a point of it.

The appellants at the same time moved to strike the same three counts, presumably as to both Fredrick and Gilbert.

Both motions were denied. It is to be observed that they were not made at the close of all the evidence. In so far as the motions are to be construed as being for a directed verdict, they should have been thus made. Hansen v. Boyd, 161 U.S. 397, 402, 403, 16 S.Ct. 571, 40 L.Ed. 746; Bank of Italy v. F. Romeo & Co., 9 Cir., 287 F. 5, 7; Milleson v. United States, 8 Cir., 78 F.2d 60; Nailling v. United States, 6 Cir., 124 F.2d 431, certiorari denied, 316 U.S. 675, 62 S.Ct. 1043, 86 L.Ed. 1749, petitions for rehearing denied, 316 U.S. 710, 711, 62 S.Ct. 1267, 86 L.Ed. 1776, petition for rehearing denied, 6 Cir., 142 F.2d 551; Minnehaha County, S. D. v. Kelley, 8 Cir., 150 F.2d 356, 359, 360.

Despite this defect in the appellants' presentation of their contention that the evidence was insufficient to sustain the verdict, in the interest of complete fairness we will hereinafter consider that question. In view of that same objection of the appellants', we will limit our statement of facts to a summary of the appellee's evidence.

Theodore Freeman, the appellants' office manager, testified that they operate two markets, the Hollywood Ranch Market and Bill's Ranch Market. Each market maintains a meat department and a grocery department, which the appellants themselves operate. The witness had charge of depositing the ration coupons, writing the checks, and balancing the accounts. Gilbert was "primarily" the grocery manager and buyer, and Frederick was "primarily" meat buyer for the partnership. The ration coupons or stamps were deposited in the Hollywood State Bank.

Alma E. Keevy, who had supervision over ten girls at the Verification Center of the Office of Price Administration at San Francisco, said that the Center "is a place where all of the used ration currency comes back to and is checked for all irregularities". It checks coupons coming out of all the Western States, including California, which are sent in by registered mail from the various banks. She explained and demonstrated the use of a fluorescent lamp in detecting counterfeit stamps. She testified that she had so tested all the stamps in certain envelopes in evidence in this case, and could tell by notations on the envelopes containing them how many she had found to be genuine and how many were counterfeit. According to her testimony, an overwhelming majority of the stamps in those envelopes were counterfeit.

On cross-examination, Miss Keevy was asked by appellants' counsel whether she had not discussed the validity of the coupons in this case, before coming into court. She made the following damaging reply: "No, I did not discuss it with anyone other than my boss. When we find a terrific amount of bad stamps, as this market produced, up there, well then, I naturally would take anything quite as large to my boss."

Harriet Welling, ration teller of the Hollywood State Bank, said on the stand that in 1945, probably in May, she turned over to Thaddeus R. Loud, special agent of the Currency Protection Branch of the Office of Price Administration, a group of deposit envelopes that were in the bank at that time, all of which envelopes came from the Hollywood Ranch Market. She took the envelopes to the directors' room and she and Loud examined them. Loud explained "with the lamp" "how the good ones looked and how the bad ones looked."

Later, Loud himself testified that he had examined "every one" of the stamps in every envelope in Government's Exhibit 34 — which Miss Welling had identified as being made up of envelopes that had come from the Hollywood Ranch Market. Loud said that of the 210,000 "points" contained in the envelopes endorsed by the bank with the date of May 24, 138,450 were counterfeits; and that "there were 200,000 points bearing * * * the bank endorsement dated May 18th, and of those 200,000 points contained in those envelopes, 110,170 are counterfeits".

Max Jones, one of the principle witnesses for the appellee, was also referred to by witnesses and by counsel as "Dick" Jones. Twice in their brief, the appellants seek to make a point of this variance in name, characterizing it as "noteworthy". Whether the appellants seek to cast a doubt on the identity of Jones, is not clear. At any rate, the point was not raised at the trial, when it could easily have been cleared up, and our own careful study of the record convinces us that counsel for both sides and all the witnesses who referred to Jones knew that Max Jones and "Dick" Jones are one and the same man. In examining his own witnesses, counsel for the appellants himself referred to Max Jones as "Dick" Jones, while in the appellants' brief the preferred designation is Max Jones. It is clear that for the purposes of this case, the two names are interchangeable.

Jones gave his residence as the Los Angeles County Jail, and said that he was incarcerated there following a conviction for felony in connection with gasoline rationing stamps. He testified that in 1945, probably during the first week in April, he had had a conversation with the appellant Gilbert at the Bill's Ranch Market in Burbank; that Gilbert asked him whether he "knew where they could get meat stamps"; that the witness told Gilbert that he didn't know but would find out; and that Gilbert said "he could use some" if the witness "could get some".

A few days later, Jones said, he and Gilbert met again. Jones introduced him to Al Becker and Mert Powell, told him that they had...

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