Stillman v. United States, 11381.

• Decision Date: 28 November 1949
• Docket Number: No. 11381.,11381.
• Parties: STILLMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

177 F.2d 607 (1949)

STILLMAN et al. v. UNITED STATES.

No. 11381.

United States Court of Appeals Ninth Circuit.

October 27, 1949.

Rehearing Denied November 28, 1949.

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Morris Lavine, Los Angeles, Cal., for appellant.

James M. Carter, U. S. Atty., Ernest A. Tolin, Chief Asst. U. S. Atty., Norman W. Neukom, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before Denman, Chief Judge, BONE and Orr, Circuit Judges.

BONE, Circuit Judge.

Appellants, who were partners in a wholesale meat business, appeal from a judgment of conviction upon the verdict of a jury under an indictment (filed March 11, 1946) containing 50 counts, the first of which charged a conspiracy¹ to violate the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq. (hereafter referred to as the Act). To the conspiracy count was appended a long list of claimed overt acts alleged as substantive offenses committed in furtherance and to effectuate the purposes and objects of the conspiracy. This count also referred to certain Maximum Price Regulations pertaining to the sale of meat, the most important of which was Regulation No. 169 pertaining to beef and veal.

The remaining 49 counts in the indictment charged substantive offenses of two types, i. e., willful charges in excess of the lawful maximum price allowed, and willful falsification of entries and documents required to be kept under the provisions of the Act and applicable Regulations. Regulations here involved were promulgated under the Act and included Maximum Price Regulations Nos. 148, 165, 169 and 239.

Twenty-seven counts charging substantive offenses were withdrawn, and as to these the court granted appellants' motion for judgment of acquittal.

Appellants were convicted on Count One and on the remaining (22) counts. Eleven of these counts charged sales of meat items at over-ceiling prices on specific dates from about August, 1944, through March, 1945, (under Regulation No. 169) and the remaining eleven counts charged false entries or falsification of records in a material respect, these offenses being committed from about September, 1944, through March, 1945, (under Regulations Nos. 148, 169 and 239).

Appellants attack their conviction on a broad front, presenting fifteen lengthy specifications of error. Their length forbids a verbatim repetition but the material issues they raise are considered in the light of arguments presented to support them.

The first assails the validity of the indictment. It is said to be void because of certain language appearing in the caption which reads as follows:

"Indictment Filed: Mar. 11, 1946 Bond No. 18,366

"Viol: United States Code, Title 18, Section 88

"United States Code, Title 50, App. Section 901 et seq.

"Conspiracy to commit offenses against the United States.

"Violations of the Emergency Price Control Act of 1942.

"In the District Court of the Southern District of California, ss.:

"The Grand Jurors of the United States of America, being duly impanelled, sworn and charged in the District Court for the Southern District of California, Central Division, in the September, 1945, Term of this Court, having begun but not finished during the said September Term of Court, among other things the matter of the investigations charged in this indictment, and having continued to sit by the order of this Court in and for the said District during the February, 1945 term to complete inquiries begun, but not finished, at the original term, and inquiring for that District, upon their oaths find and present as follows:" (The body of Count One follows.)

We italicize the caption language emphasized by appellants. It is claimed that this language shows an absence of jurisdiction of the grand jury because the term of the court under which the indictment was brought commenced on the second Monday of September, 1945, consequently this term could not have ended during February, 1945.²

It is clear that the mistake in dates was a typographical error. Such an error is not a fatal defect in an indictment and the overwhelming weight of authority so holds. This doctrine loses none of its force or authority by reason of the rule that Federal courts lack authority to permit amendments of or changes in the charging allegations appearing in the body of an indictment. Carney v. United States, 9 Cir., 163 F.2d 784, and cases there cited, certiorari denied 332 U.S. 824, 68 S.Ct. 165, 92 L.Ed. 400. Ex parte Bain, 121 U. S. 1, 7 S.Ct. 781, 30 L.Ed. 849 does not hold to the contrary. The cases make clear that the caption is not a controlling factor and that erroneous recitals therein do not vitiate an indictment; furthermore, that a distinction must be drawn between the body (the charging part) and its caption.³

The date of February, 1945 appearing in the caption should have been February, 1946. See Note 2. The record wholly fails to indicate that appellants suffered prejudice by reason of this mistake of dates. We agree with appellee that this posture of the case presents a situation coming fairly within the spirit of 18 U.S.C.A. § 556,^3a pertaining to defects of form in indictments.

The leading contention of appellants embraces several issues of the same general character and they are considered together. One of the charges is that the indictment failed to properly inform appellants of the elements of the offense intended to be charged; that in legal effect the trial of appellants on the counts laid in the indictment was a denial of due process of law guaranteed by the Fifth Amendment. In support of this contention appellants make plain that they rely upon the manner in which the Act, and the regulations thereunder are cited in the indictment. The emphasis is upon the fact that each count charges a violation of the "Emergency Price Control Act of 1942" and "Maximum Price Regulations Nos. 148, 165, 169 and 239 thereunder."

The basic argument is that cast in this form, the indictment fails to charge a crime because: (1) The "Emergency Price Control Act of 1942," by its terms, expired on June 30, 1943, (2) Maximum Price Regulation No. 169 was promulgated July, 1942 (7 Fed.Reg. 653) under a Congressional mandate which required that the Administrator state the reasons for any regulation under the Act, (3) The indictment omitted the use of the term "As Amended" when referring to the "Emergency Price Control Act of 1942," (4) The indictment omitted the term "Revised" with reference to Regulation No. 169.⁴

Appellants clarify their position in the form of a question. They ask: (May appellants be tried) "upon an indictment setting out as a fact that the prosecution was under an emergency statute, which by its very terms expired in one year, 1943, and pursuant to regulations issued thereunder, which had no application to the case at bar; and whether such procedure and proceedings are totally void and in violation of due process of law guaranteed by the Fifth Amendment"? (Emphasis supplied.)

This idea is further expressed in the argument that "the prosecution was commenced under a non-existent regulation (169) and a non-existent statute."

A further contention is that appellants were "prejudiced" because the indictment failed to allege that the Act became the "Stabilization Extension Act of 1944", 58 Stat. 632. For reasons stated below this contention is without merit. Reference to the last mentioned statute shows that it carries the caption — "Title I — Amendments to the Emergency Price Control Act of 1942." By this enactment Congress exercised its undoubted power to thus amend and prolong the life of the Act.

These attacks upon the indictment are predicated upon the assumption that the omission of the words "As amended" and "Revised" from the indictment completely nullified the attempt to prosecute for violations of the Act notwithstanding the fact that its effective life, and the regulations thereunder were (as hereafter noted) extended until June 30, 1947, and notwithstanding the fact that all of the substantive offenses charged in the indictment were committed prior to June 30, 1946.

That appellants recognize and apparently concede the existence of these provisions of law which extended price controls by extending the effective life of the (1942) Act, is evidenced by their statements that:

"On June 30, 1946, the Emergency Price Control Act, the amendments, thereto and the Stabilization Act of 1944 and its amendments and all regulations under any of them were all terminated"; that "all laws and regulations relating to meat had expired on June 30, 1946." (The reference to meat refers to Regulation No. 169.)

The legislative history of the Act reveals that various provisions of law extended its effective life over the entire period covered by all of the charges in the indictment.

At the outset it is to be noted that the citation in 50 U.S.C.A.Appendix, § 946 contains no language indicating a necessity to refer to the Act by adding the phrase "As Amended." The Act itself (see § 946) under the caption "Short Title" sets forth that "This Act (§§ 901-922 and 923-946 of this Appendix) may be cited as the `Emergency Price Control Act of 1942.' Jan. 30, 1942, c. 26, Title III, § 306, 56 Stat. 37."

Appellee concedes, and the legislative changes we note in the margin⁵ show that the Act (of 1942) was, by its terms, to have terminated long prior to the date of the offenses here charged. But, as appellee points out, the section of the original statute, 50 U.S.C.A.Appendix, § 901(b), dealing with extensions of the termination date, was amended from time to time, and it is our view that these various amendments had the effect of extending the effective life of the Act over the entire period covered by the charges in the indictment. (See Note 5.)

The history of extensions of the life of the Act indicates a studied Congressional intent and purpose to extend its life, its provisions, regulations, orders...