U.S. v. Schafer

• Decision Date: 23 May 1979
• Docket Number: No. 78-1392,78-1392
• Citation: 600 F.2d 1251
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry A. SCHAFER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1251

600 F.2d 1251

UNITED STATES of America, Plaintiff-Appellee, v. Harry A. SCHAFER, Defendant-Appellant.

No. 78-1392.

United States Court of Appeals, Ninth Circuit.

May 23, 1979.

Chris McKenna, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

Donald G. Ryan, Jr. (argued), Auburn, Wash., for defendant-appellant.

Appeal from the United States District Court for the Western District of Washington at Seattle.

Before TRASK and SNEED, Circuit Judges, and SKOPIL, ^* District Judge.

TRASK, Circuit Judge.

Appellant, Harry A. Schafer, appeals from his conviction on ten counts of criminal contempt, 18 U.S.C. § 401(3), resulting from charges that he violated a consent order dated January 6, 1975, enjoining him from providing transportation of freight over public highways in foreign or interstate commerce without authority from the Interstate Commerce Commission (ICC).

On March 22, 1974, the ICC filed a civil action against appellant d/b/a Golden West Equipment Rentals requesting an order enjoining Schafer from providing transportation for hire without authority from the Commission. Schafer had been in the trucking business for 14 years during which time he had never obtained any authority from the ICC to engage in the trucking business either as Golden West Equipment Rentals, or as Tamarack Enterprises, another of his unincorporated trucking ventures.

On January 6, 1975, after an investigation by the ICC and with advice of counsel, Schafer consented to the following judgment order:

"IT IS ORDERED, ADJUDGED, AND DECREED that the defendant, H. A. Schafer, individually, or H. A. Schafer d/b/a Golden West Equipment Rentals, or otherwise, his agents, employees, and representatives, and all entities and persons, real, fictitious or corporate, and their respective officers, agents, servants, employees, and their successors, and representatives, in active concert or participation with him, be perpetually enjoined and restrained from, in any manner, or by any device, individually, or in concert or participation with others, directly or indirectly, transporting or holding out to transport property, or arranging, providing or furnishing transportation, or holding out to arrange, provide or furnish transportation of property by motor vehicle in interstate or foreign commerce over or upon public highways for the general public for compensation unless and until such time, if at all, as there is in force and effect with respect to said defendant and said transportation a certificate of public convenience and necessity or permit or other appropriate form of authority issued by said Commission authorizing such transportation where such authority is required; . . ." C.T. at 18.

Following the entry of the consent order, Schafer incorporated Golden West Equipment Rentals, Inc. (Golden West) and Tamarack Enterprises, Inc. (Tamarack). The defendant was the president and director of each operation and later added a third corporation, Custom Carriers, Inc. (Custom), which was organized to obtain ICC approval as a contract carrier. The investigation to obtain this authority was what disclosed the other derelictions which had been continuing over the past ten years.

Twenty-five instances of transportation were found to have taken place in violation of the rules and regulations of the ICC, ten of which were included as being sufficiently clear to be a part of the evidentiary material in the hearing on contempt charges. Each of the ten instances involved transportation performed by Golden West equipment operated by drivers furnished by Tamarack. Appellant never sought modification of the consent order issued in civil proceeding or otherwise sought to reopen that matter. The trial court found:

"The activities of the defendant in this so-called leasing arrangement with Portco or Peerless, and others, was a pure sham. From the testimony stated, it was news to Portco. I guess about the only people that knew that the rental agreement was going on was the defendant, Mr. Schafer, and a couple of his drivers.

And it was done for one reason, and one reason only, to continue in the transportation business without having the permit."

R.T. at 172.

The trial below was to the court and not to a jury, the government having stated that it would not seek a jail sentence in excess of six months. At the trial, a stipulation was introduced in evidence which recited that as to each instance of transportation, the transportation was performed by Golden West equipment and operated by drivers furnished by Tamarack. Based...