United States v. Angelo

• Decision Date: 21 January 1946
• Docket Number: No. 8884.,8884.
• Citation: 153 F.2d 247
• Parties: UNITED STATES v. ANGELO.
• Court: U.S. Court of Appeals — Third Circuit

153 F.2d 247 (1946)

UNITED STATES v. ANGELO.

No. 8884.

Circuit Court of Appeals, Third Circuit.

Argued November 8, 1945.

Decided January 21, 1946.

Harold Simandl, of Newark, N. J., for appellant.

Edward V. Ryan, of Newark, N. J. (Edgar H. Rossbach, U. S. Atty., of Newark, N. J., on the brief), for appellee.

Before MARIS, GOODRICH, and O'CONNELL, Circuit Judges.

O'CONNELL, Circuit Judge.

Joseph Angelo appeals from the judgment of the District Court of New Jersey sentencing him following his conviction by a jury on the first of two counts of an Information.¹ This count charged that on or about January 23, 1944, at Orange, New Jersey, Joseph Angelo "did knowingly, wilfully and unlawfully acquire, possess and control certain counterfeited ration documents, to wit: counterfeited Class C-2 gasoline ration coupons purporting to represent approximately 46,000 gallons of gasoline, in violation of General Ration Order No. 8 as issued by the Office of Price Administration. * * *" We are urged to reverse the conviction on numerous grounds.

Appellant attacks the sufficiency of the Information, asserting that (a) the regulation upon which it is based is invalid; and (b) the alleged counterfeited document is not set forth in haec verba or in substance.

We are of the opinion that the questioned regulation, as applied in this particular case, is valid. General Ration Order No. 8 issued by the Price Administrator, sets forth certain prohibitions and penalties. In section 2.5 it provided: "No person shall acquire, use, permit the use of, transfer, possess or control any counterfeited or forged ration document". Section 2(a) (5) of Title III of the Second War Powers Act of 1942² provides for criminal prosecution as follows: "Any person who willfully performs any act prohibited, or willfully fails to perform any act required by, any provision of this subsection (a) or any rule, regulation, or order thereunder, whether heretofore or hereafter issued, shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than one year, or both."

Appellant concedes a proper delegation of authority to the Price Administrator to promulgate Ration Regulations³ but argues that this particular regulation, 2(5), is unconstitutional and otherwise beyond the authority of the Administrator. He contends that it is unconstitutional because it fails to attach a "willing or conscious" quality to the prohibited act of possession. The language of section 2.5 of General Ration Order No. 8 is inept in this regard.⁴ However, section 2(a) (5) of Title III of the Second War Powers Act of 1942,⁵ under which this prosecution is brought, when read with section 2.5 of General Ration Order No. 8, leaves no doubt that the element of mental awareness of the counterfeit quality of the ration documents is included in the act made criminal. The penal provisions of the basic statute are applicable only to violations of a regulation which are willful. Yakus v. United States, 1944, 321 U.S. 414, 435, 64 S.Ct. 660, 88 L.Ed. 834.⁶ Moreover, the Information clearly charges the defendant with "knowingly, wilfully and unlawfully acquiring, possessing and controlling certain counterfeited ration documents". As to the appellant, the acquisition, possession and control were charged to be with wilfullness and consciousness of the fact that the ration coupons were counterfeit. Consequently he has no basis for complaint. Baender v. Barnett, 1920, 255 U.S. 224, 41 S.Ct. 271, 65 L.Ed. 597.

We see no merit in appellant's further contention that Congress did not intend to permit a delegation of authority to the Price Administrator to prohibit the counterfeiting of ration documents or their acquisition, possession and control. Section 2(a) (5) of Title III of the Second War Powers Act of 1942 is obviously broad enough to include such powers: see Randall v. United States, 5 Cir., 1945, 148 F.2d 234, 235; cf. United States v. Randall, 2 Cir., 1944, 140 F.2d 70; Henderson v. United States, 9 Cir., 1944, 143 F.2d 681; United States v. Todaro, 2 Cir., 1944, 145 F.2d 977.

We are of the opinion that the Information is otherwise sufficient. Not readily stricken down are Indictments or Informations because of defects in draftsmanship. Since the passage of section 269 of the Judicial Code as amended⁷ the true inquiry is whether the substantial rights of the parties have been affected. The "obvious requirements" are "(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense." Berger v. United States, 1935, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314. See also Hagner v. United States, 1932, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861: "The rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded"; United States v. Fawcett, 3 Cir., 1940, 115 F.2d 764, 134 A.L.R. 404. In the record is ample demonstration that these "obvious requirements" have been met.⁸

Appellant argues that there was not sufficient proof to sustain a verdict of guilty. A review of the record refutes this argument. If believed by the jury, the testimony of the Government witnesses proved that (a) Angelo sold certain C-2 ration coupons on two occasions on the night of January 22 or 23, 1944, at Orange, New Jersey, to Victor E. Morbedelli; (b) these same C-2 ration coupons were transferred by Morbedelli to a purchaser in Bayonne, New Jersey, who returned them, claiming they were counterfeits; (c) Morbedelli attempted unsuccessfully to return all of the C-2 ration coupons to Angelo, claiming they were counterfeit; (d) Angelo never refunded the Morbedelli money but did accept for a short time certain of the same C-2 ration stamps which he later handed back to Morbedelli; (e) Morbedelli placed these same C-2 ration stamps which were part of those he had originally obtained from Angelo on January 22 or 23, 1944, in a book located in an office shared by Morbedelli and one Edythe Lichtblau; (f) shortly after the same C-2 ration stamps were put in the book, O. P. A. investigators searched the Morbedelli-Lichtblau office in the presence of Miss Lichtblau and seized these same C-2 ration stamps; (g) these same C-2 ration stamps (part of those obtained by Morbedelli from Angelo) were in fact counterfeits of genuine C-2 ration stamps; and finally, (h) Angelo had knowledge of the counterfeit quality of these ration coupons. We realize that the record contains elements contradictory of certain of the above conclusions of fact, but even if we were to disagree with the verdict of the jury we should be without power to reverse, since there was in the Government's proof sufficient evidence to go to the jury. Burton v. United States, 1906, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362; cf. Henderson v. United States, supra.

There remains for consideration appellant's argument for a reversal on the grounds ranging from asserted erroneous rulings on evidence to alleged misconduct of the trial judge and the Government counsel. The excepted rulings on the evidence will be analyzed first.

In cross examination of Miss Lichtblau and Morbedelli (who incidentally was serving a prison sentence on a guilty plea to a similar Information charging him with the same crime), defense counsel produced four documents, identified as D-1A, B, C, and D. While Morbedelli identified three of the documents as being in his handwriting, he denied that he knew what they represented or what their contents meant. Lichtblau identified one of the documents (D-1B) as being in her handwriting but claimed she was merely an amanuensis for another of her office associates who never explained to her the meaning of the words and figures she wrote. Defense counsel offered these documents in evidence to disprove the identity of the C-2 ration stamps seized in the Morbedelli-Lichtblau office by the Office of Price Administration investigators as being part of the same C-2 ration stamps which Morbedelli obtained from Angelo at Orange. The trial judge admitted the documents but only for the purpose of testing the credibility of these two Government witnesses. In view of the vague, unexplained character of these documents, we believe the trial judge was scrupulously fair to the defense in even admitting these documents into the evidence. The limitation was entirely proper under the circumstances.

In order to prove that the seized C-2 ration stamps (Exhibit G-1) were counterfeit, the Government offered in evidence a sheet of genuine C-2 ration stamps for comparison (Exhibit G-2). The authenticity of the stamps in Exhibit G-2 is not contested. However, appellant contends that Exhibit G-2 represents a sample of the product of but one of three printers who were actually printing the stamps for the Office of Price Administration at that time. The Government put on the stand Weed who qualified as a Government printing expert and testified that the stamps offered as Exhibit G-2 were genuine. Based upon his experience with Office of Price Administration ration document printing, he described the manner in which the genuine ration currency was produced: A master plate was made by the Government Printing Office. From that master plate three patterns were made. The Government Printing Office delivered one pattern to each of the three printers who made as many plates as necessary to print the quantity of stamps ordered. The process assured uniformity of product. In view of this testimony it was not error for the trial judge to admit the sheet of genuine C-2 stamps (Exhibit G-2) for comparison by the jury to determine whether the seized C-2 ration stamps (Exhibit G-1) were counterfeit....