Gomila v. United States, 10255.

• Decision Date: 17 February 1947
• Docket Number: No. 10255.,10255.
• Citation: 159 F.2d 1006
• Parties: GOMILA v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

159 F.2d 1006 (1947)

GOMILA v. UNITED STATES.

No. 10255.

Circuit Court of Appeals, Sixth Circuit.

February 17, 1947.

L. E. Gwinn and John E. Robinson, both of Memphis, Tenn. (Thomas L. Robinson, of Memphis, Tenn., on the brief), for appellant.

Thomas C. Farnsworth, of Memphis, Tenn. (William McClanahan, of Memphis, Tenn., and David London, Albert M. Dreyer and J. J. Schalet, all of Washington, D. C., on the brief), for appellee.

Before SIMONS, ALLEN and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

The appellant was charged under four counts of an indictment with violating General Ration Order 8 as amended, and 2nd Revised Ration Order 3, relating to ration stamps and sugar rationing, issued pursuant to the Second War Powers Act, 50 U. S.C., App.Sec. 633, 50 U.S.C.A.Appendix, § 633. The jury found him guilty under three counts, namely, (1) of acquiring, possessing, controlling, using and transferring 600 counterfeit consumer sugar ration stamps (No. 36) under circumstances which were a violation of G. R. O. 8, § 2.6 if the ration stamps had been genuine; (2) of acquiring and possessing in violation of the regulations 3,000 pounds of rationed sugar, as a result of the transfer of the same sugar ration stamps, in excess of his allotment of sugar as a registered industrial user of sugar, and (3) of receiving in violation of the regulations the 3,000 pounds of rationed sugar in exchange for the same sugar ration stamps, knowing or having reason to believe that the stamps were not validly issued and acquired in accordance with a ration order by appellant as the person tendering the ration document or stamps. The appellant was sentenced to one year of imprisonment under each count, the sentences of imprisonment to run concurrently, and to pay a fine of $2,000 under each of the counts.

Appellant contends that the motion for a directed verdict should have been sustained; that he was denied a fair trial; that the court committed reversible error in the admission of evidence, and that the statutes and regulations involved are invalid.

At the date charged in the indictment appellant owned two industrial establishments registered as industrial users of sugar with the Office of Price Administration for the State of Louisiana, the X-L Sales Company and the St. Bernard Syrup Company. These were merely trade names, each establishment during this period being owned and operated individually by appellant. The X-L Sales Company had acquired five bottling companies in Louisiana and Mississippi in 1941 and 1942. Its allotment of sugar by December 15, 1944, was 435,939 pounds for the first quarter of 1945. The St. Bernard Syrup Company about the same time received 21,475 pounds of sugar. Allotments for the quarterly period, April, May and June, 1945, had been withheld from both of these concerns by the OPA, and each of them therefore had received no ration certificate for this period, and was short of sugar.

Since these establishments were industrial users, under the regulations appellant was an industrial user. 2nd Revised Ration Order 3, section 18.9. He had never been registered as any other type of user unless in his relationship as a consumer using sugar for personal use. Under 2nd Rev. R. O. 3, section 3.15, industrial users received not the individual stamps which were distributed to consumers, but certificates for sugar upon approval of their applications for allotments which were made quarterly. There was no provision in the regulations for the issuance of consumer coupons to industrial consumers for the purchase of sugar.

On June 29, 1945, at Memphis, Tennessee, the appellant bought from Harry Blen, a retail grocer, 30 bags of sugar, each containing 100 pounds, for which he paid the retail price of $7 per bag. He gave Blen 600 No. 36 consumer ration stamps, each with a value of five pounds. The stamps were affixed to six sheets with scotch tape or cellophane. Blen deposited the stamps in his bank, and they were examined at the verification center of the OPA and found to be counterfeit. Blen received a letter from the OPA, stating that the stamps were counterfeit, and telephoned the appellant in New York that he had to confer with the OPA that morning. Appellant claimed that the stamps were genuine, and told Blen to insist that the stamps were not counterfeit, and that he had received them from some one in Mississippi.

A qualified expert from the OPA office compared the stamps with genuine examples in court, and testified that all 600 were "a bad counterfeit." She pointed out the differences in the color and texture of the paper and in the process design which underlies the overprint, but stated in effect that the spurious character of the stamps would not be evident to a layman.

Appellant admitted that he transferred the stamps in the purchase of the sugar and paid the retail price. He contended that he was acting in the transaction as agent for the Peerless Sugar Company, a wholesaler in New York City which appellant said he owned. The Peerless was a wholesale grocery, and entitled to receive consumer stamps from retailers, but under the regulations it could not legally transfer them unless it was a nondepositor. G. R. O. 3A, Sections 3.1 and 3.4. Since it was a wholesaler, the Peerless Company was required to be a depositor, 2nd Rev. R. O. 3, section 5.10, and appellant testified to the effect that it was a depositor. Under 2nd Rev. R. O. 3, article VII, section 7.1 et seq., it was required to deposit consumer stamps in its account and to transfer the credits by check. 2nd Rev. R. O. 3, section 5.10. Appellant testified that he intended to use the sugar for his bottling business in Memphis. But he could not use consumer stamps to make purchases for industrial users. The appellant, with his extensive experience in these sugar transactions, evidently was found by the jury to be aware of all these circumstances. Also it may have been considered that a wholesaler in New York City is not likely to purchase sugar at a retail price in Memphis to be used by a Memphis concern.

A significant circumstance was that all of the 600 stamps were printed upon dark paper plainly different in color from the paper of the genuine stamps. The jury might well have considered that if 600 consumer stamps were received in legitimate consumer trade by a grocery, and were transferred to appellant, as he claimed, at least some of them would be genuine.

Appellant's principal defense was that the OPA had arbitrarily withheld allotments from the X-L Company and the St. Bernard Syrup Company, and that he was therefore entitled to buy the 3,000 pounds of sugar. Assuming, but not deciding, that the action of the OPA officials at New Orleans was unjustified and arbitrary, this fact does not entitle the appellant to violate the regulations. Moreover, although appellant owned a number of bottling companies and had engaged in extensive business operations involving the use of large quantities of sugar, being represented during the years since rationing had been instituted by an auditor and by various attorneys, he took no steps to review the administrative action under which the allotments were withheld. 2nd Rev. R. O. 3, section 11.1(a). The jury was entitled to disbelieve his explanation of his possession of the counterfeit stamps and his transfer of them to Blen, which clearly was in...