United States v. Cohen, Cr. No. 12197.

• Decision Date: 29 July 1947
• Docket Number: Cr. No. 12197.
• Parties: UNITED STATES v. COHEN.
• Court: U.S. District Court — Western District of Pennsylvania

73 F. Supp. 96

UNITED STATES v. COHEN.

Cr. No. 12197.

District Court, W. D. Pennsylvania.

July 29, 1947.

W. Wendell Stanton, Asst. U. S. Atty., of Pittsburgh, Pa., for the Government.

Joseph A. Rossi, of Pittsburgh, Pa., for defendant.

WALLACE S. GOURLEY, District Judge.

The defendant, Nathan Cohen, alias Larry Cohen, on the basis of an information filed by the Government, with approval of the Court, was tried and convicted for a violation of General Ration Order No. 8 and the Second War Powers Act as amended, 50 U.S.C.A.Appendix, § 633.

The provisions of the Second War Powers Act granting power to issue regulations making unlawful the possession of sugar ration coupons other than as prescribed in regulations did not constitute unconstitutional delegation of legislative power. Lotto v. United States, 8 Cir., 157 F.2d 623.

The defendant has filed a motion for a new trial and motion in arrest of judgment, said motions setting forth as follows:

"Motion for New Trial

And now, to-wit, this 7th day of June, 1946, comes Nathan Cohen, by his attorney, Joseph A. Rossi, Esquire, and moves the Court for a new trial in the above entitled case for the following reasons:

1. The verdict is against the evidence.

2. The verdict is against the law.

3. The verdict is against the weight of the law and the evidence.

4. The Court erred in refusing to grant instructions of acquittal at the termination of the government's case.

And for other reasons which the defendant will assign after the transcription of the testimony heard in this case."

* * * * * *

"Motion in Arrest of Judgment

And now, to-wit, this 7th day of June, 1946, comes the defendant, Nathan Cohen, by his attorney, Joseph A. Rossi, Esquire, and moves the Court to arrest the judgment in the above entitled case for the following reasons:

1. That the verdict is against the evidence.

2. That the verdict is against the law.

3. That the verdict is against the weight of the law and the evidence.

4. That the Court erred in refusing to grant instructions of `not guilty' at the termination of the government's case.

And for such additional reasons as the defendant will present after the transcription of the testimony in this case."

* * * * * *

"Additional Reasons in Support of Motion in Arrest of Judgment

And now, to-wit, this 16th day of July, 1946, comes the defendant, Nathan Cohen, by his attorney, Joseph A. Rossi, Esquire, and moves the Court to arrest the judgment in the above entitled case for the following additional reasons:

5. The Court erred in permitting introduction of testimony of alleged violations other than that of May 26, 1945, as alleged in the original information. (Testimony— pages 19, 20, 21).

6. The Court erred in permitting the instant case to be submitted to the jury in the absence of the introduction of any stamps alleged to have been possessed and transferred by the defendant to the witness Fenton.

7. The Court erred in permitting the instant case to be submitted to the jury in the absence of proof being adduced by the Government, whose burden it was, admitting that the alleged violation took place, that the defendant did not have a right to transfer said stamps; except on the testimony of one witness of the local office of the Office of Price Administration that said defendant was not a registered dealer in this particular locale, it not being incumbent upon the defendant to disprove, but being incumbent on the Government to prove."

The Information filed against the defendant with leave of the Court is as follows:

"Charles F. Uhl, United States Attorney for the Western District of Pennsylvania, who, for the said United States of America in this behalf prosecutes in his own proper person, comes into the Court on this 30th day of November, A. D. 1945, and files this Information and gives the Court to understand and be informed that:

1. Nathan Cohen, alias Larry Cohen, hereinafter referred to as the defendant, resides at 340 Craft Avenue, Pittsburgh, Pennsylvania.

2. Under the authority vested in the Administrator of the Office of Price Administration by Executive Order No. 9125, April 7, 1942, Directive No. 1 of the War Production Board and Food Directive No. 3, issued by the Secretary of Agriculture, General Ration Order No. 8 (General Prohibitions, Penalties and Conditions) was issued on March 25, 1943, effective April 15, 1943, as amended.

3. Section 2.6 of General Ration Order No. 8 provides as follows: `No person shall acquire, use, permit the use of, transfer, possess or control a ration document except the person or the agent of the person to whom such ration document was issued or by whom it was acquired in accordance with a ration order or except as otherwise provided by a ration order.'

4. On or about the 26th day of May, A. D. 1945, after the effective date of the said Regulation and while the same was in full force and effect, at Glenshaw, in the County of Allegheny, in the Western District of Pennsylvania, and within the jurisdiction of this Court, the said defendant did unlawfully, wilfully and knowingly possess, use and transfer to an agent of P. H. Butler Company Store No. 1056, located at 1107 Mt. Royal Boulevard, Glenshaw, Pennsylvania, approximately two hundred (200) loose sugar ration stamps, the said defendant not being the person or the agent of the person to whom such ration stamps were issued and not having acquired such ration stamps in accordance with a ration order or as otherwise provided by a ration order, in violation of the said General Ration Order No. 8 and the Second War Powers Act as amended; contrary to the statute and regulations in such cases made and provided and against the peace and dignity of the United States of Americaa.

Wherefore, said Attorney, in behalf of the United States, prays consideration by the Court of the foregoing Information and that due process of law may be awarded against the defendant in this behalf, to make answer to the United States touching and concerning the same."

"Order

And now, to wit, this 30th day of November, A. D. 1945, it appearing that there is probable cause therefor, leave is granted and the within Information is ordered to be filed.

By The Court"

On the basis of the charge set forth in the Information, it is the contention of the Government that on or about the 26th day of May, 1945, the defendant did unlawfully, wilfully and knowingly possess, use and transfer to an agent of P. H. Butler Company Store No. 1056, located at 1107 Mt. Royal Boulevard, Glenshaw, Pennsylvania, approximately 200 loose sugar ration stamps, said defendant not being the person or the agent of the person to whom such ration stamps were issued and not having acquired such ration stamps in accordance with a ration order or as otherwise provided by a ration order, in violation of Ration Order No. 8 and the Second War Powers Act as amended.

In support of the claim made in the Information, the Government called the Manager of the P. H. Butler Store hereinbefore referred to, who testified in substance that the defendant first came to said store in April or May of 1945, and purchased 1,000 to 1,200 pounds of sugar, and gave the Manager sufficient ration stamp coupons for the sugar purchased. The Government offered proof that the defendant had been to the store for the purpose of similar purchases on three or four occasions. The witness for the Government subsequently stated the defendant first came to said place of business a few days before Decoration Day, or on or about May 26, 1945, and returned at an interval of two or three weeks on two or three occasions. In other words, it was testified that the defendant had come to said place of business on three or four occasions, the first occasion being May 26, 1945, and the other occasions two or three weeks apart subsequent to said date. The witness could not recall how many...