Gordon v. United States
| Decision Date | 01 June 1953 |
| Docket Number | No. 4531-4534.,4531-4534. |
| Citation | 203 F.2d 248 |
| Parties | GORDON v. UNITED STATES. TEMPKIN v. UNITED STATES. DEVERICH v. UNITED STATES. STONE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John S. Boyden, Salt Lake City, Utah (Allen H. Tibbals, Salt Lake City, Utah, with him on the brief), for appellants.
H. D. Lowry, Salt Lake City, Utah, for appellee.
Before BRATTON, HUXMAN and MURRAH, Circuit Judges.
Writ of Certiorari Granted June 1, 1953. See 73 S.Ct. 1111.
These separate appeals are from judgments of convictions and sentences on an information containing four counts, three of which charged the appellants with violations of Section 601 of the Defense Production Act of 1950, 64 Stat. 798, 812, 50 U.S.C.A.Appendix, § 2131, and Regulation W, Title 32A, Code of Federal Regulations, Rev.1951, promulgated thereunder. The fourth count charged the defendants with a conspiracy to violate the same law and regulation.
With immaterial limitations, Section 601 of the Defense Production Act of 1950, supra, empowers the Board of Governors of the Federal Reserve System to exercise consumer credit controls in accordance with, and to carry out the provisions of Executive Order No. 8843, dated August 9, 1941, 50 U.S.C.A.Appendix, § 2131 note. Section 603 of the same act, 64 Stat. 798, 814, 50 U.S.C.A.Appendix, § 2133, provides that any person who wilfully violates any of the provisions of Section 601 or any regulation or order issued thereunder, shall upon conviction, be punished as therein specified. Section 2 of Regulation W, supra, promulgated under authority of the foregoing act, pertinently provides that each person engaged in the business of making installment sales is to be referred to as a "Registrant" and no such Registrant shall make or receive any payment which constitutes or arises directly or indirectly out of any credit extended by him except on conditions therein specified. And the section further provides that a Registrant must have a license which is thereby granted and he shall file a statement on a prescribed form with the Federal Reserve Bank or branch thereof in the district in which the main office of the Registrant is located.
Section 3(a) of the same regulation provides that there shall be a down payment on all installment sales of an amount not less than that specified for the article listed in Section 9 of the Regulation, such down payment to be calculated as therein specified.
Section 9 as it existed at times material here, provided that the down payment on sewing machines designed for household use shall not be less than 25% of the sale price thereof and that the loan value thereon shall not exceed 75% of such sale price.
Section 3(b) provides for the keeping of bona fide records of any transactions subject to the regulations and in accordance therewith.
Section 6(i) forbids a Registrant from extending any credit for financing the purchase of any listed article if he knows, or has reason to know, that there is, or that there is to be, any other credit of any kind extended in connection with such purchase beyond the amount of installment credit permitted by the regulation; but if the Registrant accepts in good faith a written statement signed by the obligor that no such other credit exists, then such statement shall be deemed to be correct for the purposes of the Registrant.
The first count in the information charged that Appellants, Allan Gordon and Eli Tempkin, doing business as National Stores, and Burt Deverich and Harvey Stone made an installment sale of a sewing machine designed for household use to Buean E. Colley, and that on the delivery of such machine such persons unlawfully, knowingly and wilfully accepted and received a down payment in an amount less than a sum equal to 25% of the sale price thereof in violation of Section 601 of the Defense Production Act and Regulation W promulgated thereunder.
The second count charged that the same persons unlawfully, knowingly and wilfully failed to make, complete and preserve bona fide records showing the amount of the purchaser's down payment in the installment sale of the machine to Buean E. Colley in violation of Section 601 of the Act and Regulation W.
The third count charged that the same appellants made an installment sale of a sewing machine to Evelyn Allen and extended credit knowing full well that other credit had been extended therewith so that the total amount of credit in connection with the sale exceeded 75% of the sale price of the machine in violation of the Act and Regulation, to which reference has been made.
The fourth count in the information charged that the appellants conspired to violate the Act and Regulations by making the sale of the sewing machine to Evelyn Allen as alleged in count three of the information.
Appellants do not challenge the sufficiency of the three substantive counts to state an offense. It is suggested however that the conspiracy count fails to state the requisite overt act, and appellants excepted to the court's instruction that the overt act consisted of the sale of the machine to Evelyn Allen. The point is not included in the statement of points relied upon, nor is it argued in the briefs. But since it does go to the validity of the count, we notice it only to say that the conspiracy charge was restricted to the sale of one machine to Evelyn Allen and that sale necessarily constituted the overt act. The court accordingly instructed the jury, and we think correctly so.
Each of the appellants challenges the sufficiency of the evidence to support the verdict of guilty on any and all of the counts in the information.
There was substantial and creditable evidence to the effect that appellants Gordon and Tempkin were engaged in the business of selling new and used sewing machines as a partnership under the name of the National Stores; that they first opened a store in Los Angeles, California and later one in Salt Lake City, Utah, where the sales laid in the information were made; that in the operation of that business they engaged salesmen who sold the machines to customers answering newspaper and radio advertisements offering the sale of rebuilt Singer sewing machines. The sales were made on the installment basis, the salesmen retaining a certain percentage of the sale price, depending upon the amount received for a particular machine.
In support of counts one and two, there was evidence that a Mr. Tempkin sold Mrs. Colley a sewing machine for a total sale price of $149.95. The conditional sales agreement signed on the date of the sale showed a down payment of $38.95, but the Colleys actually paid Tempkin the sum of $1.00 to hold the machine until the next pay day, at which time Mr. Colley paid the sum of $15.00 and the machine was delivered to him. Thereafter he made additional payments on the down payment at the store for which he was given receipts. He received "dunning" notices from the National Stores showing the balances due on the down payment and soliciting additional payments. A total of $22.95 was paid on the down payment.
In support of count three there was evidence that about the time laid in the information a salesman for the National Stores sold Evelyn Allen a sewing machine for $149.95; that upon delivery of the machine the salesman was paid the sum of $13.00 on the required down payment of $38.95. At the same time Evelyn Allen signed three "I.O.U's" each promising to pay $6.50, to be remitted in envelopes addressed to the company with the salesman's name on the inside. Three American Express Company checks made payable to the salesman or to the National Stores were mailed in the company envelopes left with her for that purpose. The other payment was personally solicited and collected by the salesman. There was evidence to show that the obligation for the balance of the down payment was to the salesman alone.
There was evidence of a number of other sales of sewing machines in which less than 25% of the sale price was paid down and "I.O.U's" taken for the balance of the down payment. One salesman testified that he made about fifty sales and that in about 80% of them he took "I.O.U's" for the down payment; that these "I.O.U's" were turned into the company office and treated as cash as far as the company was concerned; that he was paid the full amount of his commissions irrespective of the down payments. He testified that the salesmen were told to procure the 25% down payment but to accept an "I.O.U." for it if they could not get it otherwise. The evidence of these transactions was offered and received to show a course of conduct or design and purpose to commit the offenses charged in the information.
The record shows that the appellant Deverich was at one time manager of the Salt Lake City store and that a "Burt D." sold a sewing machine to Mrs. Elda Evans for which less than the required down payment was received. The government contends that appellant Deverich made the sale.
There was also evidence to the effect that appellant Stone was at one time manager of the Salt Lake City store, and while acting as such manager, he attempted to enforce the collection of the balance of a down payment on a sewing machine sold to a Mrs. Thelma C. Maxwell. But the information does not charge a sale of a sewing machine to either Evans or Maxwell, and there is nothing in the record tending to show that either Deverich or Stone was manager of the store when either of the sales laid in the information was made, that they were connected with the company, or in any way participated in or had knowledge of such sales. It follows that the judgment of the court as to those appellants must be reversed.
Appellant Eli Tempkin was never identified as the Tempkin who sold the machine to Mrs. Colley named in the first and second counts of the information. The receipt for the $1.00 deposit made by Mrs. Colley on the...
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United States v. Flynn
...authorized or knowingly ratified, as in the instance of substantive crimes and derelictions such as were involved in Gordon v. United States, 10 Cir., 1953, 203 F.2d 248, reversed and remanded to District Court, 1954, 347 U.S. 909, 74 S.Ct. 473; United States v. Hall, 2 Cir., 1952, 198 F.2d......