United States v. Slobodkin, No. 16058

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: John H. Backus and Leonard Poretsky, both of Boston, Mass., for defendant B. Rottenberg Co
• Citation: 48 F. Supp. 913
• Parties: UNITED STATES v. SLOBODKIN. SAME v. J. SLOBODKIN CO. SAME v. B. ROTTENBERG CO., Inc., et al.
• Docket Number: 16059,No. 16058,16063.
• Decision Date: 02 March 1943

48 F. Supp. 913

UNITED STATES
v.
SLOBODKIN.
SAME
v.
J. SLOBODKIN CO.
SAME
v.
B. ROTTENBERG CO., Inc., et al.

Nos. 16058, 16059, 16063.

District Court, D. Massachusetts.

March 2, 1943.

48 F. Supp. 914

Edmund J. Brandon, U. S. Atty., William T. McCarthy, Asst. U. S. Atty., and Joseph J. Gottlieb, Asst. U. S. Atty., all of Boston, Mass., for plaintiff.

John W. Walsh and J. H. Wolfson, both of Boston, Mass., for defendant Slobodkin.

John H. Backus and Leonard Poretsky, both of Boston, Mass., for defendant B. Rottenberg Co.

WYZANSKI, District Judge.

Crim. No. 16058.

In United States v. Jacob Slobodkin, Crim. No. 16058, paragraph 1 of the defendant's motion to quash raises the objection that the indictment is vague. That objection is overruled because the Court finds the indictment sufficiently certain. Paragraphs 2 through 5 of the defendant's motion allege that the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., itself (not, be it observed, any specific regulation thereunder), is invalid under the United States Constitution for these reasons: in violation of Article I of the United States Constitution, Congress delegated legislative power to the Price Administrator (¶ 2); in violation of Amendment V, the Act deprives the defendant of his property and interferes with his liberty of contract (¶ 3); and, in violation of Amendment V, the Act deprives the defendant of his liberty and his property by authorizing this Court to impose a sentence of imprisonment and fines without permitting the defendant to question in this Court the validity of the Act and the regulations thereunder (¶ 4 and 5). The points made in paragraphs 2 and 3 are overruled for these reasons: first, no one denies that this Court in passing upon an indictment laid under the Emergency Price Control Act has the power to consider the validity of such statutory provisions as are applied in the indictment; and second, having the power to pass upon the validity of the statutory provisions here applied, this Court concludes that, upon the showing so far made by the defendant, those provisions do not delegate legislative power in violation of Article I of the United States Constitution and do not regulate property or contracts in violation of Amendment V. As to the points made in paragraphs 4 and 5 they are overruled on the ground that they are moot. This Court has not been presented with an issue as to the validity of any regulation. Accordingly, the motion to quash the indictment is denied. There is no need at this time to consider the defendant's motion to suppress evidence.

Crim. No. 16059.

In United States v. J. Slobodkin Company, Crim. No. 16059, the corporate defendant's motion to quash differs from the individual defendant's motion in Crim. No. 16058 only by omitting any allegation of a possible unlawful imprisonment. The motion to quash the indictment is denied.

Crim. No. 16063.

In United States v. B. Rottenberg Co., Inc., et al., Crim. No. 16063, the defendants have filed pleas in abatement and a motion to quash.

Although paragraph 4 of the corporation's plea in abatement refers to certain prices as being "unfair and inequitable", the pleas do not point with particularity to any alleged constitutional or statutory infirmity of any regulation of the Price Administrator. Instead, the pleas place particular emphasis on the two points (1) that the indictments lack the allegation that the overt act occurred in the United States and (2) that the pleaders acquired immunity from prosecution when the corporate records were, in compliance with a subpoena, produced before the grand jury. Both the first (Dealy v. United States, 152 U.S. 539, 547, 14 S.Ct. 680, 38 L.Ed. 545; Hyde v. Shine, 199 U.S. 62, 66, 77, 25 S.Ct. 760, 50 L.Ed. 90) and second (Wilson v. United States, 221 U.S. 361, 372-374, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558) points are without merit. The several pleas in abatement are overruled.

The motion to quash is a prolix document which in twenty-five numbered paragraphs challenges the indictment principally on the grounds that (1) it does not set forth sufficient facts to charge a crime or to apprize the defendant of the crime, if any,

48 F. Supp. 915

with which he is charged (¶ 1-3, 17-25); (2) it sets forth more than one crime in one count (¶ 5, 6); (3) the Emergency Price Control Act of 1942 upon which the indictment is based is invalid because it delegates legislative power in violation of Article I of the United States Constitution (¶ 7, 8, 16); and (4) the regulations upon which the indictment is based are invalid because they are exercises of legislative power, are penal in nature, are unsupported by necessary determinations of fact, and were formulated by methods of procedure which violated the Fifth Amendment (¶ 9-15). The first two grounds were disposed of from the bench during argument and the third ground falls for the reason set forth in Slobodkin's case, supra. The fourth ground challenges, albeit not concisely or with precision, the regulation on which the indictment is based. Thus the defendants have moved to quash the indictment on the ground that it is founded upon a regulation which, in view of the circumstances of its adoption (and perhaps they also mean in view of the circumstances of its application) is invalid under the Emergency Price Control Act of 1942 and is invalid under the due process clause of the Fifth Amendment to the Constitution. The Government has replied that under § 204 (d) of the Emergency Price Control Act of 1942, c. 26, 56 Stat. 23, 31, U.S.C.A. T. 50, Appendix, § 924(d), this Court is without jurisdiction at any stage in these proceedings to entertain a defense based on an asserted statutory or constitutional invalidity of the...