United States v. Shapiro

• Decision Date: 01 May 1939
• Docket Number: No. 322.,322.
• Citation: 103 F.2d 775
• Parties: UNITED STATES v. SHAPIRO.
• Court: U.S. Court of Appeals — Second Circuit

103 F.2d 775 (1939)

UNITED STATES v. SHAPIRO.

No. 322.

Circuit Court of Appeals, Second Circuit.

May 1, 1939.

Vincent R. Impellitteri, of New York City (Erwin N. Schapira, of New York City, of counsel), for appellant.

Berkeley W. Henderson, Sp. Asst. to Atty. Gen. (John T. Cahill, U. S. Atty., of New York City, Thurman Arnold, Asst. Atty. Gen., and William L. McGovern, Sp. Atty., of New York City, on the brief), for the United States.

Before SWAN CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

This appeal is from a judgment of conviction upon four counts of an indictment for violation of the Sherman Anti-Trust Act, §§ 1, 2, 15 U.S.C.A. §§ 1 and 2, with respect to interstate commerce in fur skins.¹ The appeal assigned certain errors in the trial itself, as well as error in the sentence imposed upon the accused after his conviction.

The errors assigned as to the conduct of the trial do not appear to be substantial. Chief reliance is placed upon the failure of the court to declare a mistrial when the prosecutor in summation said: "I call your attention to the fact that that witness chair there has been empty of a single witness for the defense." It was claimed that the only witness who could have testified for the defense was the defendant himself, and that this remark constituted a comment upon the defendant's failure to testify in his own behalf. The court, however, promptly stated to the jury that all that had been said was "an actual fact" which they knew, but that no inference was to be drawn from it, as the defendant was not required to take the stand. Later in its charge it repeated the admonition and then charged fully that no inference was to be drawn from the failure of the accused to testify. In the restricted form in which it was made, it is not clear that the remark of the prosecutor was prejudicial (Jamail et al. v. U. S., 5 Cir., 55 F.2d 216; Lefkowitz v. U. S., 2 Cir., 273 F. 664, certiorari denied 257 U.S. 637, 42 S.Ct. 49, 66 L.Ed. 409), but in any event the prompt action of the judge in admonishing the jury to disregard it and his later charge cured the error if any existed. Robilio v. U. S., 6 Cir., 291 F. 975, 986.

The other error assigned as to the trial is the claimed inadequacy of the court's charge upon the subject of reasonable doubt. But the charge, covering as it did the presumption of innocence, the duty of the jury to acquit "if the testimony is as consistent with innocence as with guilt," and the effect of a failure of the Government to establish guilt to their satisfaction beyond a reasonable doubt, seems to us entirely adequate. Miles v. U. S., 103 U.S. 304, 312, 26 L.Ed. 481; U. S. v. Austin-Bagley Corp. et al., 2 Cir., 31 F.2d 229, 234.

The objection to the sentence imposed upon the defendant raises an important issue as to whether a conspiracy to create a monopoly is the same as, or a different offense from, the creation of the monopoly itself. Of the four counts upon which the accused was convicted, the first alleged a conspiracy to restrain trade and commerce in fur skins among the several states; the second, a conspiracy to monopolize such trade and commerce; the third, an attempt to monopolize such trade and commerce; and the fourth, that the defendant had unlawfully monopolized such trade and commerce. The facts upon which the last three counts were based were incorporated by reference from the first count. The first count rested upon § 1 of the Sherman Antitrust Act, while the second, third, and fourth counts were based upon § 2 of that Act (15 U.S.C.A. §§ 1, 2). After his conviction, the defendant was sentenced to imprisonment for one year on each count; the sentences on counts 1, 2, and 4 were to run consecutively with each other, while that on count 3 was to run concurrently with the others. He was also fined $5,000 cumulatively on each of the three counts 1, 2, and 4. In result, therefore, he was sentenced to three years' imprisonment and a fine of $15,000.

Defendant concedes that the court had power to impose consecutive sentences of imprisonment and cumulative fines on the first and second counts, based upon the first and second sections of the Act. Offenses under these sections are not identical, even though all the evidence is applicable to both counts. U. S. v. Buchalter, 2 Cir., 88 F.2d 625, certiorari denied, Shapiro v. U. S., 301 U.S. 708, 57 S.Ct. 942, 81 L.Ed. 1362; U. S. v. MacAndrews & Forbes Co., C.C., 149 F. 836. It is the defendant's contention, however, that all the counts under § 2 of the Act are but different ways of stating one offense, the penalties for which are limited to imprisonment for not more than a year or fine of not more than $5,000 or both, and hence that the sentences of imprisonment on the last three counts should have been concurrent, and not consecutive, and only one fine should have been imposed. The court below evidently concluded that the attempt to monopolize interstate commerce merged with the act of monopolizing it, since sentences on the counts making these charges were made concurrent. But it concluded otherwise as to the charges of conspiracy to monopolize and of actual monopolizing of interstate commerce.

Section 2 of the Sherman Act provides: "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding $5,000, or by...