United States v. Rice, 9832.

• Citation: 176 F.2d 373
• Decision Date: 08 August 1949
• Docket Number: No. 9832.,9832.
• Parties: UNITED STATES v. RICE.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

176 F.2d 373 (1949)

UNITED STATES v. RICE.

No. 9832.

United States Court of Appeals Third Circuit.

Argued June 14, 1949.

Decided August 8, 1949.

Herbert S. Levin, Philadelphia, Pa. (Sydney Finkelstein, Philadelphia, Pa., on the brief), for appellant.

Thomas J. Curtin, Asst. U. S. Atty., Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., Philadelphia, Pa., on the brief), for respondent.

Before BIGGS, Chief Judge, and McLAUGHLIN and O'CONNELL, Circuit Judges.

BIGGS, Chief Judge.

The appeal at bar is from an order of the court below filed October 27, 1948 in accordance with its opinion filed July 22, 1948,¹ denying a petition filed by the United States Attorney to return to the appellant, Rice,² the sum of $1,020 of $1,950 held in the registry of the court below. The petition requests that the balance, viz., $930, be paid to the treasurer of the United States. The parties saw fit to present to the court below and to bring to this court a record deficient in many respects but we believe that enough appears therefrom, as supplemented by stipulation filed by the direction of this court, to permit disposition of the issues presented. The pertinent facts follow.

On November 26, 1946 an information was filed by the United States Attorney against Rice charging him with violations of the Emergency Price Control Act of 1942, as amended, and of the Price Control Extension Act of 1946, 50 U.S.C.A.Appendix, War, § 901 et seq., in that Rice sold and delivered to Barsin kegs of "cement finish" nails in excess of the maximum price permitted by Revised Price Schedule 49, Section 1306.159(h), as amended, 11 F. R. 8085. Put to his trial Rice was found guilty but, on a motion filed by him for judgment of acquittal, the court below directed such a judgment to be entered upon the ground, as was indeed the case, that the United States had failed to prove the corpus delicti.

On March 5, 1947 there was delivered by Moldawer, Associate Regional Enforcement Executive of the Office of Temporary Price Controls, to the clerk of the United States District Court for the Eastern District of Pennsylvania, an envelope, containing inter alia $1,950 in cash, for safekeeping with the provision that it was not to be opened by the clerk nor its contents verified so that proof of Rice's offense might be facilitated when the money was offered in evidence at his trial. The foregoing appears from a memorandum dated May 7, 1947³ from Moldawer to Shapira, Chief of the Review and disposition Section of the Office of Temporary Price Controls. The memorandum contains the following statement, "Upon disposition of the case wherever said monies⁴ were held as evidence, the monies were to be disposed of as directed by the Court."

Rice's criminal trial commenced on March 12, 1947, and was concluded the same day, Rice being found guilty. It appeared from the evidence that on or about October 23, 1946, Barsin, an employee of the Office of Price Administration, bought the kegs of nails from Rice, paying him in cash $1,950.⁵ Rice was then arrested; the money, consisting of $1,950 in bills as we have stated, was taken from Rice's person and the information on which he was subsequently tried was filed against him. The $1,950 given to Rice in payment for the nails had been advanced by Johnson of the Philadelphia Home Builders Association. It appears that the nails were turned over to Johnson who subsequently made use of a large part of them in veterans' housing projects. The alleged ceiling price of the nails was $1,020. Rice after his arrest made a statement in which he said that the nails belonged to one Parmentier and that he was selling them for him on commission and, in effect, he reiterated this position at his trial.

On May 2, 1947, according to the stipulation filed by the parties, the Philadelphia Office of the Price Administration was closed. On May 8, 1947, the following order was filed in the case: "Order Directing Clerk to Take Custody of Certain Evidence. It appearing that the Office of Price Administration has in its possession certain monies which are to be offered in evidence in the trial of the above-entitled case, and it further appearing that the said Office of Price Administration desires to turn the said monies over to the Clerk of this Court to be kept by him and produced at the trial of the case, the Clerk of the Court having been authorized by the Administrator to rent a safety deposit box for the safekeeping of the said evidence, it is ordered that the Clerk of this Court be and he is hereby authorized and directed to take into his custody the sum of One Thousand Nine Hundred Fifty and no/100 ($1,950.) Dollars and hold the same pending the further order of the Court." On July 25, 1947 the court below granted a judgment of acquittal for reasons already stated.

It appears from the stipulation to which we have referred that the clerk of the court below kept the money, the actual bills or cash which Barsin had paid to Rice, in a safe deposit box until it seemed that the money was no longer needed as evidence.⁶ The petition of the United States Attorney was filed on January 27, 1948 and on October 27, 1948, the petition was denied on the ground that Rice's statements showed that he was not entitled to the money since he was not the owner of the nails.

On February 28, 1949⁷ the United States Attorney filed a petition to the court below requesting that the $1,950 be turned over by the clerk of the court below "to the registry" of the court "pending any further claims as to ownership". The court below entered an order on this petition as follows: "And now, to wit: this 28th day of February, A.D., 1948 sic, it is in consideration of the within going petition, ordered and decreed that the sum of Nineteen Hundred and Fifty Dollars ($1,950.00), held by the Clerk of the United States District Court as custodian, be turned over to the registry of the United States District Court."

The order appealed from is that which was filed on October 27, 1948 denying the petition of the United States Attorney to return $1,020 to Rice and to pay the balance, $930, to the treasurer of the United States.

In our opinion the court below was without the jurisdiction or power to make this order or to adjudicate...