Garber v. United States

• Decision Date: 11 December 1944
• Docket Number: No. 9635.,9635.
• Citation: 145 F.2d 966
• Parties: GARBER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

145 F.2d 966 (1944)

GARBER et al. v. UNITED STATES.

No. 9635.

Circuit Court of Appeals, Sixth Circuit.

December 11, 1944.

Aaron Weiswasser, of Detroit, Mich. (Aaron Weiswasser and William G. Comb, both of Detroit, Mich., on the brief), for appellant.

Vincent Fordell, of Detroit, Mich. (John C. Lehr and Vincent Fordell, both of Detroit, Mich., on the brief), for appellee.

Before HAMILTON, MARTIN and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

The appellants Edward Garber and the Garber Packing Company, Detroit, Michigan, a sole proprietorship, were convicted by the verdict of a jury on fourteen counts of a sixteen-count indictment, charging violation of revised maximum price regulation No. 169, issued by the Price Administrator of the Office of Price Administration, pursuant to the authority of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 901 et seq. The convictions rested upon evidence of numerous sales and deliveries of beef by the defendant Garber at prices well known by him to be in excess of the maximum ceiling prices fixed in the regulation.

The district judge directed a verdict for the defendants as to the charges laid in counts 5 and 6. These two counts covered sales of beef to William Kurkowske. The evidence offered by the Government was considered insufficient to connect the defendant Garber with knowledge of the actions of his truck driver, Ryan, in delivering the beef to Kurkowske and collecting the unlawful purchase price. Both the district judge and the jury, as manifested by its verdict, found the evidence sufficient to justify the conviction of appellant in connection with certain unlawful sales, covered in other counts of the indictment, where deliveries of beef had been made to the defendant's customers by his employee Ryan, who in each instance had collected an amount in excess of the lawful ceiling price in payment for the meat.

Appellant insists that the district court erred in declining to direct a verdict in his favor on nine of these counts, numbered respectively 2, 3, 4, 7, 10, 11, 12, 14, 15; whereof counts 2, 3 and 4 relate to sales to Frank A. Claramunt, counts 7, 10, 11 and 12 appertain to sales to Walter Wawrzynowicz, and 14 and 15 are based upon sales to Adam Wawrzynowicz. No sentence was pronounced on three of these counts, to wit: 11, 12 and 15. It follows that defendant has not been harmed by his conviction on them. Likewise, sentence was not pronounced on count 9. The contention is not made that there was no substantial evidence to support conviction upon counts 1, 8 and 16, relating to unlawful sales to Frank A. Claramunt, Walter Wawrzynowicz and Walter Kozielski, respectively. On the factual branch of the case, we are therefore concerned only with whether the district court properly submitted to the jury the issue of defendant's guilt as charged in counts 2, 3, 4, 7, 10 and 14 of the indictment.

With respect to counts 2, 3 and 4, covering sales to Claramunt, it must be borne in mind that Claramunt, a retail grocer, testified in direct support of the charge in count 1, that he bought on December 23, 1942, from the appellant, who was a wholesaler, 1,648 pounds of meat at twenty cents per pound, as indicated by the invoice; but that appellant computed on a separate piece of paper and collected an additional six cents per pound charge for the meat, in plain violation of the ceiling-price regulation. Claramunt testified that he paid this overcharge to appellant personally. He testified further that he purchased "additional meat" from Garber for which he paid like overcharges; but that only on the first occasion (that covered by count 1) was Garber present when the meat was delivered. The other overcharges covered by counts 2, 3 and 4 were calculated by Garber's delivery man, Ryan, and the unlawful amounts were paid to him. The transactions were conducted by Ryan in the same manner that the original transaction had been conducted by Garber. Claramunt testified that Ryan and a colored helper accompanied Garber and were present on the occasion of his original transaction with Garber, but that Ryan was "not around" when the figures were computed and the amount of the computation paid to Garber.

In reference to counts 7, 10 and 14, pertaining to sales to two grocers who operated separate stores, Walter Wawrzynowicz and his father, Adam Wawrzynowicz, the observation should be made that Walter testified that the first beef which he purchased from Garber Packing Company was bought personally from the appellant who asked 28 cents a pound for it. Walter paid Garber's office cashier the price at which the meat was invoiced and paid, as required, the unlawful overcharge to Garber himself "in the ice box." On the witness stand, the young man stated: "I imagine I had similar transactions on three or four other occasions and I always paid the extra money to Mr. Garber in the ice box." Walter was always alone with Garber in the ice box when paying the overcharge and never paid "overage to anyone other than Mr. Garber or Mr. Ryan." He asserted that "it was on Mr. Garber's instructions to have the bills handy" that he had informed the O. P. A. investigators "when they came in" that he had paid only the ceiling price for the meat.

Adam Wawrzynowicz testified that on every occasion of a delivery to him of meat from Garber's, the driver in his presence multiplied on a piece of "butcher paper" the weight of the meat by 28 and demanded and was paid the resultant amount. The elder Wawrzynowicz had no personal dealings with Garber; his son ordered the meat sent to the father's store and Ryan made the deliveries. Whoever, father or son, received the beef was reimbursed by the other for his proportionate share of the price charged by Garber or his employee.

The testimony of grocer Walter Kozielski as to his purchases of meat from Garber discloses the same method of "black market" operations revealed in the instances of sales to Claramunt and to the Wawrzynowicz father and son. Kozielski testified that on January 28, 1943, he purchased from Garber 685 pounds of "good grade cattle" at 22 cents a pound, for which he actually paid 28 cents. He swore: "When I first started buying from Mr. Garber he told me in the cooler that I would have to pay 28 cents a pound. He told me not to mark on the back of the bill the difference I paid, that I would get into trouble." In the ice box where the meat was stored, Garber instructed him to pay the girl in the office the purchase price shown on the invoice. The additional six cents per pound was simultaneously demanded and collected from him by Garber when they were together in the ice box. On some other sales to the witness, the same procedure was followed and, in one recited instance, Garber's driver who delivered the meat at Kozielski's store was paid the customary six cents charge over the ceiling price. From the evidence which has been briefly summarized, the jury obviously inferred from the circumstances that appellant's delivery man and collector was acting in well understood unlawful concert with him.

In the case of each of the sales where deliveries and collections were made by appellant's agent, the purchaser had been previously sold meat by Garber at a price in excess of the lawful limit, and Garber himself had demanded and received the unlawful overcharge. Garber's agent invariably collected on the deliveries of meat made by him at the same unlawful rate as that exacted by Garber in his personal dealings.

(1) In our judgment, the district court did not err in refusing to grant the motion of the defendants for a directed verdict. It is well established that, on such motion, the evidence must be considered in the light most favorable to the party against whom it is urged; and if substantial evidence has been introduced sufficient to take the case to the jury, no quantum of contradictory evidence will authorize the trial court to direct a verdict. Bogy v. United States, 6 Cir., 96 F.2d 734, 740. Cf. Vilson v. United States, 9 Cir., 61 F.2d 901.

The Supreme Court has said of its own reviewing function in a criminal case: "It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. United States v. Manton, 2 Cir., 107 F.2d 834, 839, and cases cited." The opinion writer added: "Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a `development and a collocation of circumstances.' United States v. Manton, supra." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680. In the case cited by the Supreme Court from the specially constituted Second Circuit Court of Appeals, Mr. Justice Sutherland said (107 F.2d 834, 839): "It is not necessary that the participation of the accused should be shown by direct evidence. The connection may be inferred from such facts and circumstances in evidence as legitimately tend to sustain that inference. Indeed, often if not generally, direct proof of a criminal conspiracy is not available and it will be disclosed only by a development and collocation of circumstances. In passing upon the sufficiency of the proof, it is not our province to weigh the evidence or to determine the credibility of the witnesses. We must take that view of the evidence most favorable to the government and sustain the verdict of the jury if there be substantial evidence to support it. Hodge v. United States, 6 Cir., 13 F.2d 596; Fitzgerald v. United States, 6 Cir., 29 F.2d 881."

The fact that the case at bar is not a formal conspiracy case does not affect the applicability of the principle that circumstantial evidence which connects the defendant with the criminal transactions of his known agent may be received and considered; for, as was pointed out in Cossack v....