United States v. Berger, 34.

• Decision Date: 26 February 1945
• Docket Number: No. 34.,34.
• Citation: 145 F.2d 888
• Parties: UNITED STATES v. BERGER et al.
• Court: U.S. Court of Appeals — Second Circuit

145 F.2d 888 (1944)

UNITED STATES v. BERGER et al.

No. 34.

Circuit Court of Appeals, Second Circuit.

December 5, 1944.

Writ of Certiorari Denied February 26, 1945.

Louis B. Boudin, of New York City (Louis B. Boudin and Daniel W. Meyer, both of New York City, of counsel), for appellants.

T. Vincent Quinn, U. S. Atty., and Vine Smith, Asst. U. S. Atty., both of Brooklyn, N. Y., Douglas B. Maggs, Sol., and Archibald Cox, Associate Sol., both of Washington, D. C., Irving Rozen, Regional Atty., of New York City, and Albert A. Spiegel, Atty., U. S. Department of Labor, of McKeesport, Pa., for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

Writ of Certiorari Denied February 26, 1945. See 65 S.Ct. 685.

CHASE, Circuit Judge.

The order from which this appeal was taken was made by the District Court for the Eastern District of New York in probation proceedings which followed the suspension by that court of the imposition of a sentence upon appellants Berger and Kaminsky. It was made to compel appellant Cohn to sign checks which required his signature for the distribution of a fund which had been deposited by Berger and Kaminsky in a special account in a bank in his name and that of another that it might be available for distribution in accordance with the terms of the probation order.

This deposit had been made by appellants Berger and Kaminsky under the following circumstances. An information in thirteen counts had been filed in the above court charging Promenade Clothes, Inc., a New York corporation engaged in interstate commerce, Kaminsky, its president, and Berger, its secretary and treasurer, with violations of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Among the violations charged were the failure to keep accurate records, the willful keeping of false records of the hours worked and wages due to named employees of the corporation, the failure to pay such employees for overtime work as required by the statute and regulations, and more generally the willful failure to make, keep and preserve a record of the wages paid to and the hours worked each workday and each workweek by each person employed by the defendants, all as required by the statute and regulations. The corporation pleaded guilty on all counts and was sentenced to pay a fine of $500 upon each of them. Appellants Berger and Kaminsky each made the same plea but the imposition of sentence upon them was suspended and each of them was placed upon probation for a period of eighteen months beginning November 10, 1941.

Among the terms of their probation¹ was one under the heading "Other conditions," which read as follows: "(b) Restitution of wages due by the defendants or the Corporation herein specifically named, to industrial workers under the Fair Labor Standards Act of 1938, shall be made by the defendants jointly and severally, in the sum of $27,094.08, in quarterly payments of $6,773.52, commencing March 10, 1942, and on each and every quarter thereafter until the full sum of restitution has been paid; allocation of the said restitution among the said industrial workers and the amount to be paid to each is to be determined by the Director of the New York Regional Office of the Wage and Hour Division of the United States Department of Labor or under his direction."

An order to show cause why their probation should not be revoked was served upon Berger and Kaminsky after they failed to make the first two quarterly payments when due. They then appeared in court by appellant Cohn, their attorney, and offered to pay the entire $27,094.08 into the registry of the court. The judge declined to permit that to be done, and under his direction the amount was deposited in a special account in the Brooklyn Trust Company in the names of Arthur E. Reyman, who was then regional attorney for the United States Department of Labor, and appellant Cohn. It was to be distributed by means of checks signed by both of them to those persons who should be designated as the recipients in accordance with the probation order. Thereafter the probation of appellants Berger and Kaminsky was upon motion terminated by the court before the eighteen months expired, and they were discharged.

There was considerable difficulty in allocating the deposit among the employees, but the amount to be paid to each was finally determined by, or under the direction of, the regional director of the Wage and Hour Division of the Department of Labor. Cohn claimed not only that he was entitled to have accountants of his choice certify that the allocation had been correctly made but that it was his duty not to sign any checks for distributing the fund until he was satisfied that the allocation was correct. The director took the position that the allocation was to be made solely by him or under his direction and he refused to permit Cohn's accountants to take part in it or to have access to the data upon which it was made. This led to the refusal of Cohn to sign the checks to distribute the fund in accordance with the determination as made by the director alone. This refusal was followed by the service upon Cohn of an order to show cause, which resulted in the order from which Cohn, Berger and Kaminsky have appealed. This order required Cohn within ten days "after service upon him of the order herein, to sign and issue checks, with Arthur E. Reyman, Esq., to the employees of the defendants in accordance with the schedules" which showed the determination of the regional director.

The appellants now contend that the probation order was invalid (1) because no probation may be ordered except in cases where a sentence of imprisonment may be imposed and (2) because this was not a case in which restitution could be made a condition of probation. They also argue that the court had no jurisdiction over Cohn when the order appealed from was made and that the latter was unconstitutional in that it disposed of property belonging to Berger and Kaminsky without due process and in violation of their right to a trial by jury.

Much of the supposed trouble with the order from which the appeal has been...