United States v. Buchalter

• Citation: 88 F.2d 625
• Decision Date: 08 March 1937
• Docket Number: No. 295.,295.
• Parties: UNITED STATES v. BUCHALTER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

88 F.2d 625 (1937)

UNITED STATES v. BUCHALTER et al.^*

No. 295.

Circuit Court of Appeals, Second Circuit.

March 8, 1937.

J. Arthur Adler and Schwartz & Frolich, all of New York City (I. Maurice Wormser and J. Arthur Adler, both of New York City, of counsel), for appellants.

Robert H. Jackson, Asst. Atty. Gen., Lamar Hardy, U. S. Atty., of New York City, John Harlan Amen, Albert J. Law, and Joseph A. Barrett, Sp. Assts. to Atty. Gen., and Moses M. Lewis, of New York City, for the United States.

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

CHASE, Circuit Judge.

The appellants, with eleven other individuals and twenty corporations, were indicted under the Sherman Anti-Trust Act (15 U.S.C.A. § 1 et seq.). They were charged in the first count with conspiring to restrain interstate commerce in rabbit skins; in the second with conspiring to monopolize interstate commerce in such skins; in the third with attempting to monopolize such commerce; and in the fourth with monopolizing it. Before the trial most of the defendants pleaded guilty and as to others there was either severance or dismissal, leaving only the two appellants as defendants when the action was tried. They were both convicted and sentenced on all counts.

As neither of the appellants now question the sufficiency of the proof of the violation by others of the Sherman Anti-Trust Act as alleged in the indictment, it will be neither necessary nor useful to state what was proved in detail. It is enough for present purposes to know that one of the defendants indicted, the Protective Fur Dressers Corporation, had in its membership most of the persons and corporations engaged in the business of dressing rabbit skins in New York and New Jersey and was formed and operated to enable its members to monopolize that industry there. Its methods included threats, violence, and other unlawful acts. It was enabled to carry on its unlawful business with the aid of a so-called Left Wing Union known as the Needle Trades Workers Industrial Union and of a so-called Right Wing Union known as the Lamb and Rabbit Workers Union. Each of these unions controlled the labor in certain shops in the industry and were in some respects antagonistic to each other while co-operating with the Protective Association in furtherance of its unlawful schemes.

It is also claimed by the government, and denied by both appellants, that they were the men behind the scenes who directed the unlawful activities proved. At the close of the government's case neither appellant introduced any evidence but moved to dismiss on the ground that as to them the proof was insufficient to support a conviction. Their motions were overruled after the government had been permitted to reopen the case and introduce further evidence. Then the cause was submitted to the jury with the result above stated.

All that can be, or is, claimed to be proof of any connection of appellant Buchalter with the violations of the Sherman Anti-Trust Act alleged and proved is evidence of numerous calls to and from a room in the Arlington Hotel in New York City which was shown to have been a gathering place used by the conspirators from which at one time an armed attack was made on the headquarters of the Left Wing Union. There was no proof, however, that Buchalter was ever there or that he ever participated in any of the telephone calls. Nothing was shown of what was said or who did talk at any time. The most that can be said about them is that they were fairly numerous and were made to or from the hotel room and various places Buchalter frequented and from some of which he telephoned somewhere. At one time a message was received at one of the places for Buchalter and soon after it was delivered someone called the Arlington Hotel room but it was not shown that it was Buchalter. We are urged to treat this as circumstantial evidence of Buchalter's participation in the conspiracy, it being suggested that other proof is impossible. Even so, the suggestion merely points to a fact requiring the granting of his motion to dismiss. Difficulty of proof is no substitute for actuality of proof and an accused is presumed to be innocent and entitled to be acquitted until proved guilty as charged beyond a reasonable doubt. Here there were, indeed, many suspicious circumstances to lead to the conclusion that Buchalter was guilty, but there was no substantial evidence to overcome the presumption of innocence, and so it was error to deny his motion. Nosowitz v. United States, 282 F. 575 (C.C.A.2); Reed v. United States (C. C.A.) 51 F.(2d) 941; Graceffo v. United States (C.C.A.) 46 F.(2d) 852; Karchmer v. United States (C.C.A.) 61 F.(2d) 623.

Not so, however, in respect to Shapiro. Not only did the government prove the suspicious circumstances of the telephone calls of which a few were made to his home and to the offices of a firm of which he was a member, though it is but fair to say that this so-called evidence in general was no more potent proof as to him than it was as to Buchalter, but there was direct evidence to connect him with the conspiracy and the unlawful acts charged and proved. One Potash, who was the secretary of the New York branch of the so-called Left Wing Union, testified both before the grand jury and at the trial. Rather reluctantly, though positively, he testified at the trial that he gave before the grand jury the testimony below quoted in part and that it was true. He had a conference at the Governor Clinton Hotel in New York City in September, 1932, with one Mittelman, then president of the Protective Corporation, regarding a dispute as to the amount to be paid by the Protective Corporation to the unemployment fund of the Left Wing Union. Of course, this was a part of the unlawful scheme being carried out. The following partial quotation from the testimony of Potash speaks for itself;

"I recall the meeting in the Governor Clinton Hotel in September, 1932. I was called on the phone at that time by Mr. Mittelman, who told me that he had certain matters to discuss with me in connection with the conditions of dispute that he had with a representative of the union and he asked me to be at the Governor Clinton Hotel and we would discuss the matter there.

"Pursuant to that appointment I went to the Governor Clinton Hotel and met Mr. Mittelman and another gentleman in the lobby of the hotel. I cannot recall the time. That was about four years ago. The other gentleman is known as Mr. Gurrah. His correct name is, I think, Shapiro, I am not certain.

"Q. Do you see him here? Yes, I see him; the gentleman, the first gentleman sitting there (witness indicates defendant Shapiro). I had a conversation with those two gentlemen at that time, very brief.

"As I recall, Mr. Mittelman introduced me to Mr. Shapiro. I asked him why that introduction, what Mr. Shapiro had to do with the conference to which he called me. He said, `Well, we will meet together' something to that effect. I can not recall the words. If I recall he said, `We will sit down and take up that matter' he wanted to take up with me. I said I would have nothing to...