*4 1, February to about Sixteen overt 1945. Paul, (Jer- Minn. Blanchard, of St. O. A. acts were indictment. set out The Hoffmann, ome Burns Walter A. and John gravamen charges of the was that the de- Minn., Paul, Ray Ryan, of T. all St. and G. fendants, purposes intent thwart the Moonan, Waseca, Minn., brief), of on the provisions rationing regulations, and appellants. conspired, among and with themselves Giblin, Murphy William and P. J. James persons unknown, obtain mono- other Attys., Paul, Minn., U. Asst. S. both St. of poly on stocks accumulated used-tire the. (Victor Anderson, Atty., E. S. of St. U. inspection throughout at stations Minn- tire Paul, Minn., appellee. brief), esota; delivery and to effect the release THOMAS, Before RID- JOHNSEN (con- such tires to of defendant DICK, Judges. Circuit (plead guilty); Reed victed) defendant Peters and have such tires released to JOHNSEN, Judge. Circuit inspection proper by Reed OPA without Appellants by were jury, examiners; un secure the tire inclusion convicted 88,1 conspired der 18 having U.S.C.A. of such tires of tires and tires § re-usable to defraud the proper repaired recapped; of United States which could or administration of regulations relating purchase its permit or such Reed rationing regula rubber prices might of tires.2 The at such arbitrar- tires had been promulgated by fix; tions the Office or Reed sell ily have Peters of Price Emerg recapping them; Administration tires or after before ency Price Control 1942 Act all of defendants in some to allow Second Act, 1942, War Powers profit both as manner and measure to these amended.3 operations. (Criminal Code, 1 18 9160, U.S.C.A. § 88 ister as amended. sections 37): persons regulation section “If two or more the order or which the Gov- conspiro any says pertinent either to commit offense ernment here are § are 1313.201(a) (34), 1315.301(b), States, United or to defraud § § 1315.- any 63, the United States manner or 307—Amendment 1315.307 —Amend- § any purpose, 79, | 63, and one or more of such ment § 1315.308—Amendment parties object 79, do act to effect 1315.308—Amendment § 1315.603— conspiracy, parties 63, 1315.610(h) each Amendment § —Amend- conspiracy 63, 1315.610(b) 79, such shall be not more ment § fined —Amendment $10,000, imprisoned 79, than or not more § 1315.701—Amendment 1315.702 § years, 79, 1315.704(a) than two —Amendment § both.” —Amend- statute, 79, 28, Under ment § the term “defraud 1315.801—Amendment § 1315.804(c) 38, depriving States” § United includes 1315.804 —Amendment (k) by 49, (2) 1315.806(g) the Government dishonest means § —Amendment proper —Amendment 32. These various administration law or States, sections appear 9160, 6735,
function.
Braatelien
7 F.R.
8 F.R.
v. United
Cir.,
888;
7660, 9767, 12013,
Langer
16894,
8
F.2d
147
9
v. United
F.R. 8059.
3
States,
Cir.,
U.S.C.A.Appendix,
817,
seq.,
8
76
50
§ 901 et
F.2d
824.
See
Id.,
respectively.
States,
also
Hammerschmidt
v. United
4
years
juvenile,
265 U.S.
old
A
S.Ct.
L.
time
968;
compare
offense,
Ed.
one
who was
United States v.
Gov
Manton,
Cir.,
principal
which were scrap- of his established life of one sources of tires, many exhausted, tires, letter, of old had been sought get as- operator regulations charged The the central truck authorized inspection making inspections. tire station would his tire derive revenue from the fees the OPA had to he was January the Duluth office held, who OPA official from the promptly refused. discharged. it, request was his issued letter part and Monson’s that Peters’ also, Monson made use .Peters have been reasonably could played (and deputy-tire-examiner their letters play) expected to to be jury found to release and obtain tires. central Rockner by the remark is illustrated inspection operated truck station customers, previous one his naturally Fruehauf became one of tires batch a certain could not have Lechnyr supply. sources Defendant to take going OPA man is
'“because the (convicted), Fruehauf had hired to whom Rockner further testified them.” inspection work handle the and certification unable period he was during time station, ac- previous at the central was a whatever scrap tires to buy quaintance of The central station Peters. Phelps regular Defendant sources. former general passen- took on inspecting (convict- Hicks (convicted) defendant tires, ger-car reinspecting to its in addition positions had succeeded ed), who testimony does truck tires. While the during acquitted officials two of used show that the accumulations conspiracy part alleged the latter Walker, over by tires released and taken Peters had of whom (and to both gen- Monson from the outstate them rate to enable interest loans at low inspection contained eral us- stations to here- estate, as referred real purchase hardly jury could (though able tires remain letter to after), permitted Peters’ the three believe effect. money-motived quest tires was in their making much examinations concerned about office St. Paul that the Prior the time regulations being certain to within the letter, deputy-tire-examiner gave Peters his was, tires), as to only scrap release (plead Walker defendant induced he had station, by the the central direct evidence the Duluth tire-examiner guilty), condemnation, release and Government independent of St. (which office *7 disposal large had been made of numbers accompany to him to office) Paul allow of usable tires. acquire territory to in the latter’s Walker This was them. Walker released tires as Lechnyr began dealings Peters his with scrap-collection Legion while the American payment making central at the station while promoted and being plan was still Lechnyr tires for the benefit for used to donate their were asked to dealers Legion According to the fund. that Legion. testified Walker tires to Lechnyr gave the Govern- statement for in cash initially paid him.$100 Peters investigator at the time the situation ment up, with the picked thus tires which Peters broke, (as suggested soon he had Peters Walker for it was fbolish suggestion that Lechnyr Walker) might that as done with Legion money fund. in the to to turn money personally getting well dep- Later, Peters had obtained when Legion to as to turn it over the tires the St. Paul uty-tire-examiner letter from Lechnyr though on witness stand fund— Walker, office, and Walker proposed to he it was he and who testified that not Peters just as well agreed, that Walker could that proposed first in their conversation released, he up the tires which pick alone the mon- ought permitted to retain he to position, OPA of his the use through on, ey. Lechnyr from that time At rate Peters, Peters ship for which to them money from the tires that he pocketed operated pay him ton. Walker $10 import, he more serious also dis- sold. Of and, time, ac- manner for some in this obligation inspector regarded his tire as testimony, pay- made Peters cording his himself whether not concern with did cash, $300, totalling around him in ments inspec- brought station for the tires Walker seems activities. Thereafter for his reinspection were entitled to re- tion Peters, by diverting double-crossed to have many attempted grab placement but another outlet. When Walker’s possible. tires to He far tires as went so usable relationships even, tires for rein- became known when were submitted activities and point Lechnyr concerns which intended in his relations with spection by thirty-day Lechnyr an up the end of the unsecured “loan” of pick at $1500 them (whose month), all the usable salary as to remove holding period, was $190 “I.Q.U.”, scrap Lechnyr simple for them. which gave tires him a tires and substitute part defendant with the gave understanding instructions to that of the He further Government), amount (dismissed by paid at least should be in tires Norris station; Lechnyr’s scope hired on the central and that whom Fruehauf had part of of during the latter Peters’ recommendations usuable-tire activities was such alleged conspiracy, operate paid (in he had a recapping firm manner, among acquitted Norris which one of telling same OPA officials out for me things, interested), peri- “You these tires during sort a six-months repairables, od, take according I can for recapping to the work done on tires cooperation, you.” And for this dealing, $20,000 care of which he sum of paid (and Norris from time to time various price awas discounted one be- cash, which Norris volume). sums estimated cause of the up aggregated the trial had Nor- $200. Phelps On confederation of defendant however, conscience, to have ris’ seems (the and defendant Hicks two convicted him, bothered and after had been work- officials) misdoings in the cen- ing for some months he went to Fruehauf’s station, tral the record shows that both going manager and the latter what was told were on such terms in their disclosure, in- As a on. result of this an official relations with him they made, jury ex- vestigation grand visitors on occasions in various home. situation, present amined indict- them, indicated, Neither of has returned. ment was any steps ever took dep- revoke Peters’ participation going letter, uty-tire-exarniner what was after came clearly central occupy on at the station is shown positions originally held are Among acquitted a number facts. these the two OPA officials who had Peters, previously mentioned, had issued letter. Each had direct turn persuaded Lechnyr or agreed charge with him that staff examiners pocket money Lechnyr should all office, district the evidence of in- sold; brought frequency tires defendant examination at central (plead guilty) station, Reed central station despite prox- the station’s relative Lechnyr, him imity introduce to assist the heavy order the office and volume of *8 buy, Lechnyr sell, Reed to and reinspection inspection to usable and work in which (Reed engaged,8 thereafter purchasing tires it was known to was such that Lechnyr jury, light situation, several hundred truck tires and a in the the whole tires, several passenger-car regular hundred sending which could find that of tire shipped he and resold to tire dealers with- examiners to central station in- was having any repaired True, out of them tentionally being re- avoided. the staff ; Peters, capped) after his hoot examiners and tire in the office was shown along, opened reliner up man-power,short- was well business to be small because of the a Phelps second (in name), age, another’s establishment and and Hicks ascribed both tires, deal in procured usable having and us- this for not reason had more able station, tires from the at central station for the examinations made on hut purpose of reselling; Peters at one all circumstances9 relations10 in- 8 Thus, station, manager, kept Fruchauf’s who did lie central had been Leehnyr’s not know of the time Peters’ most of office, though drawing on clerical work in the activities, Phelps had called Ilicks his tire-examiner’s Phelps salary. from time to in some time order to have and Hicks testified that shortage scrap accumulations tires re this been done because of a premises. help.
moved from the Fruehauf in office , personal As an illustration of circumstanc relations of The social jury Phelps pre es which the was Peters view in and Ilicks with entitled context, viously tire examiner Their one from the alluded to. financial dis been subsequently trict office testified on a while relátions are few discussed. go he had been occasions directed accept question cleared. required to wait until a title was jury
volved -the Peters, The explanation. mortgage given ultimately an absolute this as appears wife, signed by Phelps’ while relevance, appraising possible in Of too acknowledged validly never to have been knowingly whether'Phelps were Hicks by her.) at going oh lending assistance to what was- station, shows that the record central also time, Hicks At about this same selling (plead guilty), Reed defendant money, buy a home wanted with which he the central which obtained af tires family Minneapolis his so could move dealers, application station other purchase price to. from outstate. The transfer, for which authorizations $10,300. supplied the Peters house was - transfer of regulations $10,000, time but taking security at no another, from one dealer -usable tires furnished, however, relative- a within applications through went .these and that time, mortgage, ly short with note office, apparently with- Phelps’ or Hicks’ wife, signed by and his which Hicks where tires had any inquiry as to’ out papers provided recorded. loan obtained, part authoriz- and a same low interest rate those signed by one ations least at Phelps. record further shows (Peters seems personally. ’them other of disclosures when Hicks heard Norris’ independ- sufficiently secure or felt to have things among and that Norris had said according ent, company, that his tire so $10,000 bought Hicks evidence, bother did not even some of arranged house Hicks conference for the of transfer office, obtain authorizations Lechnyr brought to which Peters’ dealers, until after Nor- to other tires sold Norris. This was Government before exposure.) ris’ investigation. Hicks began its particularly to quizzed sought Norris circumstances, general with Along these impress holding that Peters him as- pecuniary a direct had been also mortgage Plicks. In the course of the Phelps’ and Hicks’ relations both pect in Norris, however, conversation, according to terms, Peters, which, nature and with observation, ever Hicks made “If regard properly jury could setting, the out, biggest gets it will scandal be the dealing commercial reflecting mere the Northwest.” rubricate into entitled which it was significance' general position and situation, jury In considering situation. ready interested too affluence, dealings as evidenced Phelps, before Norris’ dis- months some Phelps generally perhaps closures, $5,000 pay wanted which vrith Hicks— fact that Peters com- relation to the when purchase price off balance year tire activities before menced his and his con- hotel that he wife had small necessary get buy. A bank in town where it for him to some- had been tracted located, completely purchase handling to finance the hotel was one *9 vendor, equipment, particular- offered make the initial but the to more the matter for ly loan, Phelps he in relation and Hicks’ Phelps’ declared that doubtless to but the current knowledge financial condi- money a of his get could the certain he naively (they tion both testified that friend, very a low rate of interest “with Peters them the promptly all.” Peters reason maybe at loans none looking investments). $5,000, security On taking no that he was furnished jury hardly money Phelps personally, over to turned he when expected much to have doubt as mortgage no to the receiving from be note and and purpose and the loans. several later —after basis When until months Phelps early were The in- was asked conversation disclosures with Norris’ made.. investigator whether he for in the Government’s note and provided rate terest Phelps if and that at have made loans lower than which the would mortgage was officials, not willing been OPA had to make Hicks had loan. had been bank received, replied declaration (his that the execution and de- (Phelps claimed course, himself); papers only against “What do the loan had been allowed livery
867
you
Well,
think
the Hicks’
they
$10,000
I am?
wanted
case a
$10,300
loan on a
purchase
money
they
my business.
and
had control of
price), was
and accepted
intended
operating
regulations11
I am
under
a
cooperation;
reward for their
and
I
needed
and
the occasion
when
picture
arose
entire
pro-
was such as to
assistance
able
call
their
I wanted
they
duce the conviction that
had an under-
Peters,
them for
And he later standing
favor.”
with
express
either
added,
buying up
implied,
“I have been
Government
and
parties
thus had been
men all my life.”
evidence also conspiracy.
There was
clearly
understanding
showing Lechnyr’s
It is unnecessary
go beyond
with
point,
Peters on
for Norris tes-
misdoings
at
central station
their
that, in a
he had
tified
conversation which
attending circumstances to sustain the pres
Lechnyr
with
course of the ac-
during the
ent verdict. We do not
tomean
imply that
station, Lechnyr
at the
had
tivities
central
the Government
prove
did not
con
made reference
Peters’ relations with
spiracy
greater scope,
but
evi
Hicks and had said
that Peters “had
all
dence in
relation
the central
is
station
up”
kept
fixed
but that this was
“mum”
to establish
sufficient
conspiracy
within
anyone.
to be mentioned to
the charges of the indictment as against all
reversal,
Turning to
the contentions
whom
jury
defendants
convicted,
argued
it is first
that the
is in-
evidence
is
go
and that
as we
as far
need
in testing
support
sufficient
conviction as to
the verdict. Cf. Moss v.
States,
United
defendants,
of the
and that the trial court
Cir.,
875, 878;
6
132 F.2d
Safarik v.
sustaining
erred in not
motion
of each
Cir.,
States,
United
892, 896, 897,
62 F.2d
acquittal.
for a
them
directed verdict
rehearing
Cir.,
denied 8
tions.
868 though however, an,d context, produced him without had been
weight in position only slight. placed under oath requiring they may seem he abstraction Cir., production. States, 80 F.2d their 8 Cf. Galatas v. United Cir., 86 24; States, 8 15, Marx v. United 922 50 (a) (c) Section of U.S.C.A. And, 245, a defendant F.2d 250. Appendix, part Emergency Price may conspiracy any time join can at amended, Control Act as authorizes when, with knowl so be found to have done things among Price Administrator other existence, undertaken has edge of its such nec- obtain information as he deems v. United design. to further its Thomas essary ad- proper to assist or him the 897, 912, Cir., C.C.A. States, F. 84 8 156 of the Act ministration and enforcement 720; 477, United L.R.A.,N.S., Allen v. 17 any person purpose require and for this ; v. Cir., 688, States, Parnell 4 F.2d 7. testify 691 by subpoena appear ap- or to 324, Cir., States, F.2d 327. 64 United 10 documents, pear produce It is or both. provided further that “No (g) subsection principles general These and person complying from shall be excused need applicable are familiar law and any requirements section under with this them, the basis restated. On further be privilege against self-in- because of his however, right no to hold other we crimination, immunity provisions but the evidence sufficient to en than that Testimony Compulsory Act Feb- guilty jury to verdict of title the return a 11, edition, ruary (U.S.C., 1934 title convicted defendants. each 49, 46) apply respect shall with sec. us, appeal from con not for on an It is specifically priv- claims individual who facts, viction, conflicting weigh the ilege.” and inferences the trial circumstances Compulsory Testimony The Act of Feb- only consider whether proceedings, but 11, 1893, 443, ruary 49 U.S.C.A. Stat. aspect § its most favorable evidencé 46, following language: contained capable legally Government is person attending “No excused from shall be jury persuaded allowing a become books, producing or testifying States, Cir., v. United guilt. Miller tariffs, contracts, papers, agreements, and 259; States, Braatelien v. United F.2d before documents the .Interstate Commerce Cir., 147F.2d Commission, or in obedience sub- contention, , has second that is made * * * commission, poena of on the It' application to defendant Peters. testimony ground for the reason that or U.S.C.A.Appendix, urged under 50 evidence, otherwise, documentary or re- or immunity entitled (g), Peters was him, quired him may tend criminate prosecution trial and that the court * * prosecuted person *. But shall be no refusing to accordingly sustain erred * * * of any or on account trans- on ground to dismiss at his motion action, thing, concerning which matter or Government’s case and his close evidence, testify, produce documen- may verdict equivalent motion a directed otherwise, commission, before said tary of all the basis evidence. close ** subpoena to its obedience immunity was that- he had his claim Co.,& 142 F. subpoenas, States Armour In United v. been served administrative Humphrey the District Judge Court disclosures, requiring after Norris’ Illinois con- for the Northern District of his boot production the records of.both Testimony Act Compulsory separate strued reliner business and. business; provide immunity intended .that he had furnished request, records; furnishing, investigator on the Government’s with these that the might part incrimina- of information had used of the records Government tive, documentary, produced proceeding; oral present whether evidence in subpoena Strong compelled or not. produce oath he thus *11 evidence, records, immediately criticism arose of this construc- himself. The against sufficiently 12 valid, satisfying Act as the Commission v. Interstate Commerce S.Ct, guaranty Baird, 563, 24 5th Amendment 48 the , 194 U.S. L. 25 Testimony Compulsory involuntary 860, self-incrimination. Ed. held the
869 appear. language history overextending legislative From the the tion as language body the swiftly to used in the title and “Acting the statute. purpose decision, 389, purpose of Act Armour Public Law No. error correct legislative plainly express the that ‘the Con- con was the President recommended immunity cept scope provisions act’ aside declaratory to set of the gress pass a Compulsory misconception of con- of Feb Humphrey’s Testimony Act of Judge jn Message 11, 1893,14 purpose. ruary gressional order to eliminate April 18, States, possibility any further misconstruction President the United Sess., 706, 1906, Cong., 1st or extension as made Doc. No. 59th had been in H. attempt doing, Theodore In Armour There no p. President case. so advice acting upon change language in Roosevelt was statute way; (soon become a Attorney simply General Mr. declaration made of Jus- * ** immunity tice) Moody. Congress what that the believed [recommend- responsive provisions Testimony Gov- legislation Compulsory in the ed] position, by Attorney Act always implied. stated meant and A ernment’s Moody: ‘Upon regard these tlie facts court lan General could thereafter [in greater guage Armour the Government contended Act having case] immunity implication, con- statutory certainly could be have no and it * * subpoenaed only persons repeat basis or excuse ferred the misconstruc testimony might subsequently give who tion made in Armour case. (in legal terms) sense of evidence those yet asking And Peters is here us to do * * 706, Cong., H. Doc. No. 59th 1st *. just argues that. He he was entitled to Sess., p. dissenting opinion (From 7.” immunity though even the records which he in United of Mr. Frankfurter Justice investigator the OPA furnished to 424, 437, 438, Monia, States v. U.S. not produced under oath. As we have 409, 415, 376.) S.Ct. L.Ed. pointed out, 389, Public Law 34 Stat. No. approximately after Within three months 798, 48, 49 U.S.C.A. declares that Con- Congress case, in the Armour decision gress immunity provided meant for in passed approved President and the Public Testimony Compulsory February Act of Law Stat. No. U.S.C.A. § 11, 1893, only “extend per- natural Defining was entitled “An Act who, subpoena, gives son in obedience to right immunity under witnesses evidence, produces testimony under oath ‘An the Act Act in entitled relation tes- otherwise, documentary or oath”. under timony before the Interstate Commerce reemphasize leg- Thus—-to matter of —as Commission,’ forth, approved and so Feb- islative intention no is foundation eleventh, ruary eighteen hundred and nine- Compul- for a of immunity claim under the * * ty-three The body of the Act person sory Testimony produces Act provided immunity provi- “That under the incriminating evidence, documents or other sions entitled ‘An Act Act in relation subpoenaed be requiring without that he testimony before Com- the Interstate placed oath under con- Commission,’ forth, approved merce and so require- production. nection eleventh, February eighteen hundred ment cannot be said to restrictive so * * *13 ninety-three, immunity shall invalid, and unreasonable its who, person extend a natural wisdom, course, is not a matter for our gives testimony subpoena, obedience to a possible among consideration. It evidence, produces oath or documen- Congress things, may other have intended otherwise, tary or under oath.” by person insistence be sworn producing documents or other evidence Congressional intention hardly flag investigation, definitely made in administrative more as a 13 The definition the Sherman Anti-Trust Act. declaration See 34 applicable
Act was also to similar Stat. 798. compulsory testimony provi- And, the similar or evidence statutes statutes, sions certain Footnote such as referred which have quotation. been omitted
870 and cau- text of section 46 the reference prejudicing some the inadvertent avoid Thus, of this rights on a tion “See section 48 title.” agency of Government’s the slighest basis to con- con- there even the aspect, without due is not possible criminal ref- selecting its or the that either the reference in tend codification sideration Act Emergency Control erence in the Price course. sought in to 46 the codification section fully state perhaps more But we should section 46 any way section to divorce pres- argument the basis of Peters’ the And, 48, possible. if been thing a had should that we He contends ent situation. any in codification mechanical divorce here, because ignore Public Law No. would might have reference which occurred separate section has been it to any a court permitted not event have (49 Code U.S.C.A. § United States the of the Com- return to the misconstruction init the to 48) reference is-made and no Armour Testimony made in the pulsory Act 922(g)), U.S.C.A.Appendix, (50 section case. immunity provisions incorporates which not en Compulsory Testimony Act into hold that Peters We provi immunity Act. Section titled claim under the Emergency Price Control to quoted, Act, as Compulsory Testimony sions previously has 922(g), which against Emergency incorporated in Price Con self- privilege provides Act, anyone any documents from trol basis of excuse incrimination shall he to investi which furnished the OPA evidence information or furnishing Act, gator, “but the because Emergency Control Price Compulsory placed producing be doc provisions under oath immunity 11, (U.S. 189'3 February uments. Testimony ofAct apply 49, 46), shall C., edition, sec. title urged Government has specifi- who respect any individual to why reasons also was not entitled Peters simple privilege.” The cally claims such immunity. Most of documents fur to “(U.S.C., 1934 reference parenthetical investigator by Peters nished mention edition, 46)”,-without title sec. re- appear have boot and related soundly be hardly can of 49 U.S.C.A. § subpoena liner business. issued Congress intended -to have been said against ran not these Peters documents section the latter exclude consideration Manu against “Greta O. Peters dba Island immunity meaning in relation Company”. Manufactur Island facturing Testimony Compulsory provisions ing Company trade name under was the specific reference without Act. With or boot reliner business believe that we do not 49 U.S.C.A. § being operated, certifi trade-name emphasized, court, already have any as we Minnesota, cate, filed under statutes of declaration, congressional would after the Peters, Greta purported to declare that O. construe right situation have wife, the sole owner who was Peters’ Compulsory immunity provisions of pro immunity Under the business. Ar- meaning what Testimony Act as Compulsory Testimony Act visions mean— them assumed mour case Emergency incorporation their asking which, repeat, what is we Act, clearly Control Price could here. to do us immunity producing claim no docu ments, produced documents unless the may the reference also It be added personal compulsion sub Act Price Control to under the Emergency subpoena “U.S.C., poena. A codification, O. Greta particular any legal hardly compulsion create 46”, might sec. otherwise edition, title Peters, furnishing sig- against and his docu exclusionary some argued relating ments the boot reliner busi nificance, further is to noted ness, subpoena, point because of there took occasion themselves codifiers for a him basis claim of inescapable fore not afford relationship between out immunity Compulsory Testimony under the section title section codification, by inserting under the Act. their *13 identification, only in subpoena hardly The directed it would be reason- through business personally expect again page used-tire able us related to the Cloyce 3400-page pos- merely record ran to “Greta O. to see if it Henry Peters, as Nelson sible doing figure business tous out and locate what them Company”. particular It Tire commanded in may exhibits counsel have had produce argument. all records of mind in their business 1, January Company Tire Nelson Government contends further 1943, “including 29, 1945, January produced that the documents which Peters ledgers, journals, books, cancelled check compulsion under his tire-business checks, statements, books, in- bank stock subpoena were all records law which the records ventory and all other books and required keep privilege him to that invoices, records, lading, purchase bills of against self-incrimination therefore invoices, delivery receipts, sales tickets and not at all be in production. their claimed paid receipts showing and records cash out course, against Of privilege self-in correspondence copies all to or from crimination cannot in pro be claimed Appellants’ your buyers.” sellers brief documents re duction of which the law identify us exhibit number does quires kept regul public to be a matter of as 41-B, documents, 41-A more than two ation.15 States, Wilson v. Cf. United having produced been this sub- as under 361, 381, 538, U.S. 31 S.Ct. 55 L.Ed. poena, is- and these were checks cancelled 1912D, 558; Ann. Cas. Bowles v. Glick payment recapping sued in work done Co., Cir., Lumber Brothers F.2d brief, to- discussing tires. The in usable 570, 571; Mueller, Cir., Porter v. 156 F. gether produced documents two 2d however, regulation, No Peters, businesses of identifies total has been called to our attention that neces five their numbers documents exhibit’ sarily bring the two them checks speaks and then “various generally of selves, 41-A 41-B, Exhibits in issued bills, freight lading bills of rec- payment recapping done, (which, work ords that were evidence at the received indicated, we have only are the two trial”, but it not tell these does us whether specifically documents identified for us relate boot to the and reliner business having produced been from the files and business, the tire and it not assist us does records business) of the tire re within the identify them giving their exhibit quired-records But doctrine. it is unneces pages numbers the record where sary explore further, the matter in view they occur. immunity holding right of our that the cannot event here be claimed fact, aAs matter of in order to save ex- exist. appeal, pense apparently on the not all the copied into exhibits tran- Government argued that, has also script, presumably might accounts for the Peters otherwise even have been reference immunity brief indefinite to “various entitled to provisions under the bills, freight lading bills of Compulsory and other Act, rec- of Testimony proceedings. the trial ords” of The Gov- right by waived failing that to make such says generally ernment’s brief assertion his privilege against an self- freight lading bills of bills and relate incrimination time documents boot to the and reliner business. While produced by 50 U.S. point importance, C.A.Appendix, is not 922(g). view of our section, This holding Peters is in making immunity event not provisions of immunity provisions entitled to under Compulsory Testimony applicable Act Act, Compulsory Testimony because Price Emergency Act, Control require placed he did not thereby preventing the price- stymying of producing any documents, may oath investigations through control a claim of help not be amiss add privilege against without some self-incrimination, hardly necessary scope It investigating subpoena should to re an required-records doctrine, merely applicability privi- mind to the relationship lege has no self-incrimination. *14 872 communicative, ed, apply sufficiently or that shall qualification
adds the privilege the who an assertion any individual constitute respect to only “with self-incrimination, the re- against In under specifically privilege.”16 claims such privi- quirement 922(g) that the Emergency Price section words, the under other lege at least immunity specifically be claimed is must Act, one Control to entitle court did have Since the trial documents, must debatable. he producing any finding, basis of Peters’ compul- make on the the produced the documents credibility other circumstances re- have must subpoena sion of he had situation, whether statement under oath quired placed that he made, expression on any by fact been Com- provided as production, their statement, if found regarded whether 11, it February Testimony Act of pulsory specific made, sufficiently to have been this, time at the 1893, beyond must he situation, we particular, and since in the specifically production, have also Peters’ reasons have held that for other against privilege self-incrim- claimed his rec- immunity to be is entitled claim of ination. resolve ognized, undertake to we shall not the Govern- testified when question posed by Government’s him his sub- investigator handed ment’s contention. attorney on the tele- poena, he his called latter, phone, talking with the and, after relate Appellants’ contentions next investigator, “Mr. Smilow told rejection [the he rulings on admission and subpoenas n attorney] you me clearly advised if so Most of them are of evidence. you with thing I is furnish only can do we shall reversible substance that without for, you but ask that records books and an space to them. As discuss not take any Pe- rights.” me waive told not to complaint re illustration, of the is made bookkeeper, shown to have who was by ters’ ceiving of a letter written in evidence time, called was not present at defendants, be acquitted as not one of in- as to this upon to corroborate actually interest. against ing an admission Peters. investigator tes- The Government’s part cident. deletion of (after letter But the remember whether that he did not only against tified court) was received not, attorney telephoned his had jury defendant, and the v/as particular immunity” not “claim did that Peters again generally in the instructions that told that document connection purpose. it could considered investigator. over to turned of evi Any in the admission possible error solely specific de against a dence, received prescribed is, no There case, conspiracy generally is fendant in a claiming the crystalized formula immaterial, is ac where defendant privilege self-incrimination. against States, quitted. Hyde 225 U.S. United v. U.S.C.A.Appendix, 922 provision 50 1114, 378, 381, 32 S.Ct. 56 L.Ed. statutes)17 that recent in other (g), (and Ann.Cas.l914A, 614. privilege self-incrimination claimed, “specifically” seem must be testimony The admission on however, must some imply, investigator part of the Government’s directly of the inten expression indicative with defendant Pe as to conversation his privilege, particular claim the tion to contents of a regarding letter writ ters possible rights, distinguished from attorney (which Peters of ten fact reasonably communicative produced time, had at the own his accord done. is that this what express is purported to his attor and which ney’s on his deal with de views financial to the inves- Peters’ statement Whether Phelps), and Peters’ comments lawyer fendant told made, tigator, letter, complained re- of. court rights” intend- “not waive him statutes, a reference to these For absence of the As to the effect dissenting opinion United Compulsory qualification see Tes- in the this timony Monia, supra. itself, v. States see United v. States Act Monia, U.S. S.Ct. L.Ed. time Bryon incom- Houston. Houston for fused admit the letter itself Under-Secretary of re- been petent statements but held that Peters’ detailed part and, during serve in on it War to and his comments garding the letter alleged con- period competent against A clearly him. covered *15 spiracy, national competent office always served in the party’s are statements rationing. Deputy they charge Director in of fall with- against him unless evidence him relate sought The have special exclusionary rule. defendants some Where to many problems operations. OPA they evidence, of have been received things there may only among rele- He they fact remote testified other that that have appointments deputy tire ground had been made being tried is not of vance to the issue country, though reversal, they throughout are examiners such as unless are express provision for them in clearly jury’s have there was no apt confused the to explained swayed regulations, that improperly but he later or to have its mind appointment judgment. Peoples Investment Co. these letters of were issued Loan & Co., any people peculiar necessary Cir., “to of or v. Travelers Ins. F.2d Supreme said, private As skills that we had to borrow from 440. Court has life to carry program.” “much to the on the could (It discretion is trial court left conspiracy case], hardly ruling and contended here its that [in [on any “borrowing” Peters.) been the admission will such be sus- of evidence] testimony practices He made tained if the which is admitted reference other also to remotely regulations. even that were not tends establish the ulti- covered mate States, fact.” Clune v. United attempted then Defendants further 590, 592, 593, 125, 126, 16 S.Ct. U.S. him have relate what had said in a Here, 269. L.Ed. statements and speech made him in December 1943 at attorney’s on his letter comments at least St. Paul OPA to the district staff. The regarded showed he had not that the loan testimony. court this excluded Defendants Phelps constituting ordinary an com- thereupon prove offered that “this wit- transaction. mercial speech] ness instructed staff [in * * * and District Office comments of that no statements Peters, having program been after rationing the con such undertaken could spiracy up, not, course, by any policies was broken fixed or rules admin- have against any successfully nationally, admitted istered they. defendants, pattern, nor were expres- Cf. such a the witness’ Fiswick v. use States, 224, 227; sion, United changed S.Ct. be varied Am. have to and Jur., Conspiracy, 41, p. peculiar While, in to meet local conditions repeated ruling parts on one objections emergencies and various defendants, country; duty the court inadver and that it and the seems tently point, to have said one obligation rationing “The evi of such local execu- may be admissible as when dence to the executives confronted defend tives and Phelps”, Peters, ant situation, regardless instead it with such to meet it had made it previously clear in receiving part regulations regardless of thereto- and practice existing interpretations, evidence that it admitted fore solely against Peters, and the use common instructions and that should sense again emphasized it, meeting solving to the jury that “the their regulations statements made Peters were rules or did cover received the sit- uation, fact; as evidence against disregard him only if the regulations practice other six defendants.” In this rules and thereto- situation, we do not any existing prohibited, believe that im fore or at that time proper prejudice disregard regulations confusion or legiti can such rules mately put practice books, be claimed to have and to rule aside the resulted as to any regulation book, other defendant. the rule and solve practical common sense it on basis.” ruling on evidence most stren uously argued prove is the attacked exclusion of this went in- some It is testimony part superior subordinates, witness Colonel structions his
S74 Lechnyr dealing which all of the OPA officials Peters were defendant follow, rightfully But would be it there- bound to and that condemned tires. remote, fore bearing speculative was evidence the issue of corroboration was for the criminal But the did not bulletin did the estimated intent. witness not ascribe and, repeal result con- governing could not the OPA standards regulations demnation “pep” itinerant talk at it could said than more Paul, St. he authorize to have or could it to the self-interest nor did ascribed anyone inspections, or in- responsibility making official dealers in throw into equipment competency That basket. common sense and lack of waste practical inspection stations, judgment failure to be ex- or to the *16 by examiners. And generally dealing ercised OPA re-checks made with tire else, the the problems, general regulation anything who as with no one standard was, indicated, that a experience has as we tire was had in the court can room “capable replaced if of And be was jury doubt that would it understand. repaired being used,' jury capable that had thus understood situa- of the the or is, think, acquittal for use” tion indicated the owner. we of the who been re- two OPA officials had Again, VVV-2, was a which Exhibit sponsible the formulation of the Ameri- memorandum from the the Tire Chief of scrap plan, can establishing of Legion Rationing Branch the national of re-inspection station, and the central office, it “It of duty stated: appointment of of Peters’ letter issuance every repair every recapper tire man and “pep” deputy tire examiner. The talk get possible of every out tire every mile sufficiently of Colonel Houston remote that comes The limit of to his attention. conspira- the issue any relevance on of repair any recapper of size that or question’of that admis- torial intent its repair entirely depends man fix on his can one for wholly sion or exclusion Standards, ability as a mechanic. court. discretion of trial Price up set Administra- Office tion, repairable which are state that tires Complaint is also made of. the ex recappable they if do have more bulletins clusion of and communica various repairs, than two sectional the cuts Chicago regional tions from office more or breaks are not than three inches dealing national office rationing with length, only are meant to serve aas problems. similarly These were of such repair guide. All men cannot asked to trial court remoteness that was entitled defects; repair all kinds of breaks exercise admitting its discretion or therefore, had we to be conservative in n excludingthem. Two illustrations will suf our limits. We know that are hun- fice demonstrate.- repair many who can men dreds of do RRR, In a bulletin Exhibit addressed get many more things a tire miles rationing regional district executives it, why limit wear out so when them office, rationing Chicago executive work? suggest are able to We do the 9, 1943, of November a 7-page under date you encourage men that field re- made discussion was situation possible pair everything men to make do generally, in occurred following mileage longer if the tires run received statement: “The Grade III that tires repair.” expense justifies the dealers’ going into stocks are now are the argues The brief that “This sales of communica- tires traded in Grade I that, shows the OPA is estimated tion that themselves tires. It sale were fact that (100) tires, cognizant tires which hundred Grade each one I regulations within III are been condemned forty (40) Grade tires made avail repaired.” nevertheless But the able distribution from those tires could turned simply argued that memorandum calls in.” It is this attention to the constituted cor appellants’ general designed tests fact that the roboration of contention that to cover standards, usability minimum examined and were properly tires condemned un intended were repairable included to cover tires deemed to be regulations that be- der the yond hence of the skill and facilities of ordinary the fact re-usable tires that tire-repairer, there ground injustice, notwithstand- of manifest repair special who ing skill men of except. the failure to might get be able a tire to “things do on the contentions many more it” miles of wear out of instruc- requested give court’s refusal to if it was encouraged that should be instructions tions involve such tendered justified by expense. sugges- How this as these: no Office “That there is tion could constitute corroboration im- regulation Price Administration Lechnyr and Peters not dealt tires posed upon representa- rationing a district condemned, improperly it is diffi- executive tive or a district rationing cult see. be said to have But if duty releasing personalty examining corroboration, any way it was suf- tires”, turn-in “That the mere ficiently remote that the admission or so fact has defendant or defendants exclusion memorandum was mat- an- an isolated transaction with business ter for the trial court’s discretion. making other defendant in the form Appellants’ series next of contentions loan, itself, receiving standing is not involve given by instructions the court and alone, sufficient to constitute make requested instructions All of the refused. *17 person conspirator con- guilty a or of contentions have been examined and none spiracy meaning within the of statute ,of appellants them is such as to entitle charged or indictment.” The as Only a reversal. a few them will of requests hardly for refusal these calls on, commented because of the already too- any There no con- elucidation was here. length opinion. of this extended Phelps tention that or Hicks owed the tires; examining duty personalty
Complaint is made because the jury which elements jury that neither court instructed the order to entitle it to convict find any other defendants Lechnyr nor fully general covered the cou'rt’s were right the tires to sell had title to or instructions. by Lechnyr and Peters. This disposed of Lechnyr given because instruction requested one There was instruc testimony that felt that remarked his following: tion which contained “That suggestion right. is he had such charged the defendants in case are this Lechnyr could have ac made here that having agreement entered into an quired the tires abandonment. title to by corrupt United States defraud the ad however, That, simply attempt is an to ministering procuring corrupt admin theory appeal. into this
brood a mechanical Officeof Price istration Administra that, on the evidence are convinced We regulations tion relating to rationing of instructions, jury fully under Therefore, and the you tires. find from should practical question stood the of title which the evidence that said defendants or two or presented in the situation relation to the more of conspired said defendants to com sepa of criminal matter intent. And the a different or mit disconnected conspiracy for each of the conspiracies rate counsel several de other alleged than in the indictment, also to fendants seem have understood it it will duty be your in such have been satisfied at the time with find the case to guilty defendants not as it, they charged court’s submission of herein.” The court’s instructions any no instruction on claim fully tendered of title had informed jury of what was necessary they did any abandonment nor take establish the conspiracy part exception charge joinder charged or a conspiracy, in that as any they complain. against now We not the defendants, need and had fur argument point on “If notice the ther added that further. Government has es States, Cir., United Joyce beyond v. Cf. F. these tablished facts a reasonable 364, same argu doubt, 368. The is true of the you 2d return should a verdict of guilty parts on ments court’s the defendant or defendants who which similarly excep no instructions were members of the conspiracy and who were taken. None intent”, tions such sub criminal acted with but that “If consideration, as to stance command did on the defendant not become a member of Re- indictment, istration”; 1315.1258 and Section alleged in the conspiracy as provided: your Price Schedule No. should vised to such defendant verdict as sales Every person making the “Records: guilty”, finding not and “A subject scrap conspiracy purchases of rubber participated defendant by the inspection keep convinces schedule shall must based on evidence long for so Price you and not Office of Administration beyond reasonable doubt Act Emergency all Control conjecture.” think as the Price speculation We effect, amended, com- jury remains sufficiently clear to this made it single con- each such plete records of that it could convict accurate date, sale, charged, showing spiracy, purchase indictment such seller, buyer whom it convicted name and address of and that defendant scrap not rub- party quantity grade to that and of each found be a must be conspiracies. sold, price.” Under separate purchased or and the ber some other or circumstances, not the court was these Company Tire Since the Nelson requested instruction. required to give pro- company these checks indicated, evi- previously As we voluntarily or in re- him either duced support find- here was sufficient dence subpoena him. sponse served within the conspiracy, single of a ing because he If the latter reason was indictment, part on the in the charge made pertaining were records knew This is defendants. of all' the convicted is the tube business. Whichever case, v. United Kotteakos entitled to explanation, true he was 750, 768, States, 328 66 S.Ct. U.S. or the immunity under either the statute where, L.Ed. as to con- im- privilege Amendment. Fifth *18 defendants, “The be said that it can victed munity against self-incrimination does found, upon possibly have jury could not public office apply public documents evidence, only one alone; applies equally any records it conspiracy.” in reference “trans- giving information subjects appropriate which are the appellants’ assign- actions numerous None of regulation, any and the en- governmental of of of error entitles them ments validly estab- forcement of restrictions reversal, each of judgment and the as to States, 221 United U.S. Wilson v. lished.” is affirmed. them 538, 771, 380, 544, 361, 55 31 S.Ct. L.Ed. 1912D, 558; Davis United THOMAS, Judge.- v. Circuit Ann.Cas. 1256; 582, 590, 66 States, U.S. S.Ct. 328 opinion prepared by I in the concur Cir., Shapiro, 2 159 F.2d v. United States case; respect Judge but in Johnsen cases, think, I sustain the These 890. he is Peters’ contention that of defendant denying claim to order court’s under 50 immunity U.S.C.A. entitled immunity. 922(g), persuaded I Appendix, am § required point is covered rec RIDDICK, Judge (dissenting Circuit only pro The documents ords doctrine. part). response subpoena duced him States, 13,110, Phelps v. United In No. about there could him which served States, Lechnyr 13,112, v. No. United slightest question were -exhibits 41-A States, con- 13,113, I v. United Hicks exhibits were two Nelson No. These and 41-B. cur the result. Company to cash checks endorsed: Tire recapping tires.” repairing “for concur in the conclusions I unable to am 13,111, United 1-A, Tires, in No. Peters v. 1011 of Ration Order reached Section immunity from States, question of Tubes, (7 9160), Recapping, etc. F.R. re- 202 granted by section of prosecution1 relating “All quires records tires Act, 50 U.S.C.A. Emergency Price Control all times at tubes shall' available 922. Appendix, Office Price Admin- inspection § 890; Shapiro, Cir., 1 Only 2d 159 F.2d States v. deal with two cases F.Supp. D.C., Hoffman, here, question precisa 68 involved In re opposite results. See United reach 877 knowledge deliberately so Act, 50 U.S.C.A. and with full 202(b) section By “required is records and of 922(b), Administrator doctrine” Appendix, § engaged provisions different any person amendment require authorized to 1906, commodity adopted 30, the Act 49 U.S.C.A. dealing any business with June 48, limiting granted or af- immunity oath § to furnish information persons produced the natural who records and or otherwise on demand firmation and documents under oath. “It us to Administrator, keep records is not legislation Congress pre the add to what the orders documents Monia, inspection termitted.” United Administrator, States v. permit the and to 424, 430, 412, 409, kept. “The U.S. L.Ed. S.Ct. required to records immunity immunity granted and 376. The is an may oaths administer Administrator prosecution. necessary, say To that in the Act may, whenever affirmations and ap- Congress grant immunity person did which any by subpena require gives, language plainly produce be pear appear Act testify or to so, designated compelled both, any it was not documents, cause do but Congress U.S.C.A.Ap- saying should 202(g), way another place.” Section provides: person granted which immunity “No not have endix, 922(g), legis complying granted, with to invade has thus excused shall be this section because lative field. requirements under self-incrimination, but privilege against response subpoena in Pe- which Compulsory provisions of the immunity called not ters delivered his records 11, (U.S. Testimony February ofAct records,” “required for all all edition, 46), ap- sec. shall C., title Company Tire records Nelson spe- who ply respect to individual Manufacturing Company Island and the privilege.” claims such cifically inspection by the subject or not whether Among records which Administrator. Compulsory Testimony Feb- Act of keep required to ruary Peters was not provides 49 U.S.C.A. § agent received were a person Administrator’s no shall be excused from the Manufacturing production Com- of the Island check records and documents *19 charged a member Dolcrno, also as response pany to subpoena commanding to a their records of conspiracy, the
production records, of ground on the that the Phelps Hicks, con- produced, if transactions may tend to liim incriminate conspiracy. subject as members the forfeiture, or penalty or victed him a person prosecuted but that “no shall or subpoenas That the were addressed subjected any penalty or forfeiture for Tire Company Nelson the Island Man- transaction, or account of on matter ufacturing significance Company is of no thing, concerning testify, which he may question immunity. on of Peters’ NeJ- produce evidence, documentary other- companies ther the so-called was a cor- wise,” subpoena in obedience to a issued poration. Their titles were trade names If, authority. appellant lawful Peters under Peters on his which carried business asserts, exemp- he claimed specifically operations, case of the Nelson Tire provided by February tion the Act of Company selling the business of tires may deny we not his claim of im- tubes, in the case of the Island Manu- munity prosecution because he facturing Company the business of manu- “required not sworn or because of the rec- facturing and reliners. Min- boots Under doctrine”, ords unless into we read the Act (Minn. law St. 1945 nesota and M.S.A. § Congress something put that declined to person seq.) any conducting .333.01 et it. business in under a trade name Minnesota file presumed It must be is in the of the clerk conclusively that office Congress referring district court of specifically in which county Compulsory is conducted Testimony Act of the business a certificate set- February adopted providing provisions ting that forth the tradename and the person apply of that Act name should to claims of real conducting im- munity presented here, character Certificates business. were filed both did called-by were present Island Company and the Tire witnesses Nelson either showing Peters. One Company Peters the Government or
Manufacturing employee of Peters Tire Com- the witnesses was an the Nelson owner of the sole repre- investigator the sole owner and other was an Peters .pany Greta O. Company-. Pe- senting Manufacturing the Administrator. Whether the Island statement appellant anything said or made wife of ters is the O. Peters Greta statutes, cir- was, he how- which claimed made Minnesota he By Peters. cumstances, fact, ever, never de- “presumptive” question certificate made the business. If Peters ownership of trial. evidence of the termined agent statement to the Administrator’s case drawn indictment In this sufficiently made, com- he said he he prosecuted court in the district case he that plied requirement with the Act’s appellant theory that Peters desired immunity specifically claim operator com- of both owner and so-called of it. avail himself According to the Government’s panies. 13, in No. judgment I would reverse the ap- conspiracy began with the proof the proceedings. further remand for 111 and Deputy Ex- pointment Peters as Tire might acquire aminer, Peters so that processing monopoly business purchased from Peters
condemned tires. equipment -necessary
another the The operating
purpose of such business. en- Peters was charged that
indictment proof and the shows this business
gaged.in engaged. Among overt sowas INSTRU- v. AUTOMATIC KENYON money payments charged acts MENT CO. Dokmo, Phelps, Hicks, and Peters No. these Lechnyr. proof showed Appeals, Sixth Circuit. Is- Circuit by checks of the Court were made payments 17, 1947. March signed by Company Manufacturing land requiring pro- subpoena Peters. Manu- the Island records of duction of the upon served Company was facturing -appellant Peters. Greta O. the Island was not say To rec- Company Manufacturing its ig- is to records personal ords were not *20 ' estab- evidence which the facts nore the re- Government upon which the lished charged. of those for conviction lied
On the record in case whether Peters
specifically immunity claimed his produced response
time his records subpoenas
to the Administrator’s was a
question jury. for the Peters testified subpoenas with the served , attorney, .his and on the advice re- called response to call he
ceived told agent
Administrator’s that he com- produce required by the records
pelled subpoenas but he was not waive rights. The Administrator’s
any .of
agent had no recollection testified that by Peters, a statement but that he npt say m.ade, it was There could not