Rose v. United States

• Citation: 149 F.2d 755
• Decision Date: 04 June 1945
• Docket Number: No. 10445.,10445.
• Parties: ROSE et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

149 F.2d 755 (1945)

ROSE et al. v. UNITED STATES.

No. 10445.

Circuit Court of Appeals, Ninth Circuit.

June 4, 1945.

COPYRIGHT MATERIAL OMITTED

Morris Lavine and Benjamin J. Goodman, both of Los Angeles, Cal., for appellants.

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

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

STEPHENS, Circuit Judge.

Benjamin Rose, Louis Vitagliano, and three others were tried and convicted in the district court of violating § 88, Title 18 U.S.C.A. The indictment alleged that they "unlawfully, wilfully, knowingly, corruptly, fraudulently and feloniously" engaged in a conspiracy, beginning about December 12, 1941, and continuing until the return of the indictment, "to commit offenses against the United States, that is to say, to sell, trade, lease, ship and transfer new rubber tires, casings, and tubes to consumers and other persons in violation of the statute, executive orders, regulations and directives hereinbefore referred to." The indictment was filed January 27, 1943. After sentence was pronounced, Rose and Vitagliano appealed. The trial court upon stipulation ordered that the appeals be tried together and that one bill of exceptions be filed for both.

The indictment mentions several statutes under which the rationing of rubber products has been authorized. The first, entitled "An Act to expedite national defense, and for other purposes," was adopted June 28, 1940, Public Law 671, 76th Cong., 3rd Sess., 54 Stat. 676, and was amended May 31, 1941, Public Law 89, 77th Cong., Ch. 157, 1st Sess., H.R. 4534, 55 Stat. 236. Subsequently on March 27, 1942, it was amended by Title III, § 301, of the Second War Powers Act, 50 U.S.C.A.Appendix, § 633.¹

Also listed in the indictment are relevant orders, directives, and regulations. The Office of Production Management issued three orders between December 10 and December 27, 1941. The orders prohibited with some exceptions the sale in the United States of new rubber tires and tubes, established regulations, and authorized the Office of Price Administration (OPA) to enforce the regulations and to issue regulations of its own. That Office immediately adopted certain regulations on December 30, 1941. Thereafter, two executive orders (No. 9024 and No. 9040) created the War Production Board (WPB) and transferred to it the powers and duties of the Office of Production Management. The WPB issued Directive No. 1 authorizing the OPA to exercise the powers and duties conferred upon the President to ration materials, including rubber products. Then on February 11, 1942, the OPA issued regulations superseding those of the previous December and prohibiting the transfer of new rubber tires and tubes without certificates of local rationing boards except as otherwise provided in the regulations.

Appellants complain that the district court erred in overruling their demurrers to the indictment because, they insist, the indictment fails adequately to state an offense against the laws of the United States. They claim the indictment defective in charging a conspiracy commencing December 12, 1941, to violate the Second War Powers Act, which was not adopted until March 27, 1942. The claim is unfounded as the conspiracy was unlawful under previous statutes named in the indictment and continued to be unlawful under the subsequently enacted statutes.

According to appellants' view the indictment is vague and indefinite because it fails to specify what acts were to be done under the conspiracy and therefore to apprise them of the precise offense with which they are charged, and because it fails to identify the offense with sufficient definiteness to protect them from double jeopardy. They cite cases following the principle that an offense must be stated with greater particularity than is found in a statutory definition too general in terms to identify the crime charged. Keck v. United States, 1899, 172 U.S. 434, 437, 19 S.Ct. 254, 43 L.Ed. 505; United States v. Hess, 1888, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516; United States v. Carll, 1881, 105 U.S. 611, 612, 26 L.Ed. 1135; Jarl v. United States, 8 Cir., 1927, 19 F.2d 891, 893; Foster v. United States, 9 Cir., 1918, 253 F. 481, 482. The rule stated by appellants is accurate, but the indictment herein is not subject to the frailties mentioned in the cited cases.

The sufficiency of an indictment must be determined on the basis of practical rather than technical considerations. Hopper v. United States, 9 Cir., 1944, 142 F.2d 181, 184; Martin v. United States, 4 Cir., 1924, 299 F. 287, 288. It is not the law that to charge conspiracy to commit an offense, all the elements need be precisely alleged. Wong Tai v. United States, 1927, 273 U.S. 77, 81, 47 S.Ct. 300, 71 L.Ed. 545; Williamson v. United States, 1908, 207 U.S. 425, 447, 28 S.Ct. 163, 52 L.Ed. 278. This court has held that: "The essence of the crime of conspiracy is the unlawful combination, and if the object of the conspiracy is the accomplishment of some unlawful act, the means by which the unlawful act is to be accomplished need not be set forth in the indictment." Proffitt v. United States, 9 Cir., 1920, 264 F. 299, 302. In the instant case a fraudulent conspiracy to transfer rubber tires and tubes in violation of rationing regulations is charged, the terms of the applicable regulations are mentioned in the indictment, and overt acts in furtherance of the object of the conspiracy are therein set forth. These allegations are sufficient.

We note the argument that since the tire rationing regulations contain exceptions permitting transfers in certain circumstances by retailers and since appellants were authorized dealers in tires, the language of the indictment charged no public offense. The conclusion does not follow from the stated facts. It is the unlawful scheme to prepare for and accomplish the act of commercially handling tires and tubes contrary to and not in accord with the wartime regulation that constitutes the criminal conspiracy in this case. It is in such a case that exceptions need not be negatived in the indictment. Davis v. United States, 9 Cir., 1921, 274 F. 928; Hockett v. United States, 9 Cir., 1920, 265 F. 588.

Enough is stated in the indictment to reveal the offense to be met and to protect against double jeopardy. The indictment is adequate.

Appellants contend that the district court erred in denying their motions for bills of particulars. They had demanded particulars as to what statute and what provisions of the tire rationing regulations they had conspired to violate and how conspiring to violate such provisions constituted an offense. The indictment referred specifically to the regulations and the statutes involved. The purpose of a bill of particulars is to secure facts, not legal theories. The district court did not abuse its discretion in denying the bills. Wong Tai v. United States, 1927, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545.

After the government's opening statement at the trial appellants moved the court to dismiss the action on the ground that the facts stated by counsel for the government do not constitute a conspiracy. The district court denied the motion and ruled that the government could make a further opening statement and could voice therein its intention to prove all the allegations of the indictment. The court committed no error.

The purpose of an opening statement is merely to advise the jury of the questions and facts involved in the matter before them. The court is justified in terminating a case after the opening statement of plaintiff's counsel only when the statement affirmatively shows that plaintiff has no right to recover, and only when the opportunity to correct or embellish it has been given plaintiff subsequent to defendant's motion to dismiss or to direct a verdict. Best v. District of Columbia, 1934, 291 U.S. 411, 415, 54 S.Ct. 487, 78 L.Ed. 882; Oscanyan v. Arms Co., 1880, 103 U.S. 261, 264, 26 L.Ed. 539; Lucas v. Hamilton Realty Corporation, 1939, 70 App.D.C. 277, 105 F.2d 800, 803; Stuthman v. United States, 8 Cir., 1933, 67 F.2d 521, 523; McGovern v. Hitt, 1933, 62 App.D.C. 33, 64 F.2d 156, 157.

The point is made that the evidence adduced at the trial was not sufficient to justify the verdicts of guilty. It is appellants' theory that each of the defendants mentioned in the indictment held a retail dealers' sales license, operated a bona fide place of business, and with respect to the overt acts listed dealt with others similarly situated, that the overt acts were therefore innocent and not competent, relevant, or material as proof of guilt, and that without proof of at least...