United States v. M. Kraus & Bros.

• Decision Date: 14 May 1945
• Docket Number: No. 162.,162.
• Citation: 149 F.2d 773
• Parties: UNITED STATES v. M. KRAUS & BROS., Inc. (two cases).
• Court: U.S. Court of Appeals — Second Circuit

149 F.2d 773 (1945)

UNITED STATES v. M. KRAUS & BROS., Inc. (two cases).

No. 162.

Circuit Court of Appeals, Second Circuit.

May 14, 1945.

John F. X. McGohey, of New York City (Harold J. McAuley, of New York City, of counsel), for plaintiff-appellee.

Milton E. Sahn, of New York City (Alfred C. McKenzie, of Brooklyn, N. Y., of counsel), for defendant-appellant.

Before EVANS and CHASE, Circuit Judges, and HINCKS, District Judge.

EVANS, Circuit Judge.

Appellant corporation was fined $2,500 on each of nine counts^* for violating Revised Maximum Price Regulation No. 269, Sec. 1429.5, announced pursuant to Title 50, U.S.C.A. § 901, et seq. It required purchasers of poultry, so it is charged, to buy unwanted commodities, i.e., chicken feet and chicken skin, in order to obtain regular poultry. The jury found the individual defendant not guilty and the corporation, guilty.

The fines were assessed at the rate of $2,500 for each of the nine counts on which the defendant corporation was found guilty. There was some evidence that $22,500 fine bore a relation to the total amount of income derived by the corporation from the sale of these extra commodities of chicken feet and skin.

There was evidence which supports the statement that when retail butchers placed their orders for poultry at the Thanks-giving Holiday Season in 1943 with defendant, they were told they would receive their share of poultry and to pick it up. When they came to the wholesale store of the defendant corporation the luggers would place the barrels of poultry on the retailer's truck, and would also place separate barrels or boxes of chicken skin, feet or gizzards. These added items had not been ordered by the retailers nor were they particularly wanted by them. Separate bills were rendered the retailers, one for the poultry, and the other for the unordered feet, etc. There is some evidence that some of these feet were actually sold at the price the retailer paid for them, but the great part of them were given to the "fat" collector, to charitable institutions, or as gratuities to customers.

We have no doubt that the jury was justified in finding that the device of selling these unwanted items, supplementary to the sale of poultry, was a plain device to circumvent the ceiling price on poultry.

Defendant presents five alleged errors:

(1) No count of either information defines a crime under Sec. 1429.5 of Reg. No. 269.

(2) The regulation, which is the basis of the charge is unconstitutional.

(3) Failure of evidence to establish guilt.

(4) The court committed prejudicial error in characterization of certain of defendant's evidence as claptrap and poppycock and in stating that gizzards, chicken feet, and chicken skin were utterly useless to the purchaser.

(5) Errors as to admission of evidence.

We pass without extended discussion points 1, 2, and 3. They are, in our opinion, clearly without merit. The informations were sufficiently detailed to apprise the defendants of the illegal acts with which they were charged, and enabled them to defend themselves against the charges. They so clearly follow the wording of the Regulations that they must stand or fall with the validity of the Regulations.

That the Maximum Price Regulations No. 269, Sec. 1429.5, covering a case (disclosed by the evidence here) where butchers who were eagerly seeking to acquire poultry to fill their Thanksgiving trade, paid ceiling prices for the poultry, and also were required to purchase and pay for unwanted articles of little or no market value and pay for them prices in excess of their value, are valid, has been the uniform holding of the courts. Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892; Brown v. Banana Distributors, D.C., 52 F.Supp. 804; United States v. Armour & Co., D.C., 50 F.Supp. 347; Rottenburg v. United States, 1 Cir., 137 F.2d 850; Rosensweig v. United States, 9 Cir., 144 F.2d 30.

Ruling of Trial Court in Refusing Defense Permission to Examine Prior Affidavits of Witness. Witnesses Braverman and Moskowitz had executed affidavits for the District Attorney and for O. P. A. investigators, in preparation for the trial. On the witness stand these affidavits were used by government counsel to refresh these hostile witnesses' memories, the witnesses having given answers which were contrary to their statements in the affidavits. Defendants' attorney asked permission of the court to examine these affidavits and was denied such use. Claim is here made that such denial constitutes prejudicial error.

We unhesitatingly say that the more orderly procedure would be to let defense counsel see these affidavits. See Wigmore on Evidence, Secs. 734-765. The Supreme Court rather recently discussed this problem at length. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 231-237, 60 S.Ct. 811, 84 L.Ed. 1129. More need not be written.

The documents there being used were statements made by witnesses before the grand jury. The Court of Appeals held the use of such statements on about 90 occasions was prejudicial error. The Supreme Court held the contrary:

"Use of grand jury testimony for the purpose of refreshing the recollection of a witness rests in the sound discretion of the trial judge and no iron-clad rule requires that opposing counsel be shown the grand jury transcript where it is not shown the witness and where some appropriate procedure is adopted to prevent its improper use. * * *

"Permission to use grand jury testimony to refresh the memories of witnesses in a criminal case is not ground for a new trial, even if erroneous, where it was clearly not prejudicial and did not affect substantial rights of the defendant."

The court however guarded its holding by saying,

"Normally, of course, the material so used must be shown to opposing counsel upon demand, if it is handed to the witness. * * * And the reasons are that only in that way can opposing counsel avoid the risks of imposition on and improper communication with the witness, and `detect circumstances not appearing on the surface' and `expose all that detracts from the weight of testimony.' * * * If the record showed that the refreshing material was deliberately used for purposes not material to the issues but to arouse the passions of the jurors, so that an objective appraisal of the evidence was unlikely, there would be reversible error. Likewise there would be error where under the pretext of refreshing a witness' recollection, the prior testimony was introduced as evidence. * * * In addition, it clearly appears that the use of this material was not prejudicial."

"The record minus that testimony clearly establishes all the facts necessary for proof of the illegal conspiracy. * * * Hence, the situation is vastly different from those cases where essential ingredients of the crime were dependent on testimony elicited in that manner or where the evidence of guilt hung in delicate balance if that testimony was deleted. * * * Hence assuming arguendo, that there was error in the use of the prior testimony, to order a new trial would be to violate the standards of § 269 of the Judicial Code, 28 U.S.C.A. § 391, since the `substantial rights' of respondents were not affected. There are no vested individual rights in the ordinary rules of evidence; their observance should not be reduced to an idle ceremony."

We can not conceive how defendant suffered by reason of the court's refusal to direct Government counsel to let defendant's counsel see the affidavits.

The ruling was within the court's discretion. Wigmore, Sec. 765. There is nothing in the record to demonstrate any abuse of this judicial discretion. If counsel desired to predicate a claim of error upon the ruling he should have asked to have the affidavits marked for identification and have taken appropriate steps to include them in the record herein. Certainly without knowledge of their entire content, this court...