United States v. J. Myer Schine

552

tioner he received income which failed America, UNITED STATES years report returns in the his Petitioner-Appellee, $2,100 1949 and in the amounts 1950 v. $24,000, respectively, sums Myer J. payable al., endorsed Respondents- checks by SCHINE et made and/or Appellants. prove petitioner he which failed paid use own him for No. were not his Docket 24722. benefit, (2) failure Appeals States Court of report fraud due to these amounts was Second Circuit. addition, with intent to evade taxes. Argued 1958. found an understatement of was $360 Decided Oct. 1946 and another of 1958. $770 has Commis- last been conceded Certiorari Denied Jan. sioner. See consideration After due sufficient there was

Court concludes that as

evidence to the decision sustain report deficiencies, failure to but that with fraud income not due to as this offense

intent to evade tax (see v. Hawkins viewed this Court Cir., 1956, F.2d Commissioner, 234 Commissioner, Cir., 359; Kashat 282; Dreiborg v. Com missioner, Cir., F.2d 216. Tax sums found gross represent to be income Court him cashed of checks amounts winnings. gambling found to be per gambling losses credit for No that the Com While we think mitted. justified probably in as

missioner deficiency sessing amount total checks, of sub in the absence

of these countervailing proof the tax

stantial knowledge us

payer, common teaches averages taxpayer, the law game, friendly con sociable

even

ceivably substantial have must think, This, we as losses.

measure

very conceded well could been taxing authority on a

credited percentage basis.

reasonable

Accordingly, of the Tax the decisions 514; F.Supp. respect See also 16 F.R.D. defi- affirmed 738; F.Supp. 1946,1949 years in ciencies fraud, reversed correction of decisions

remanded year 1947.

toas provisions a consent decree in the court

entered below lengthy proceed- 1949, after a antitrust ing involving motion Circuit picture Appellant theatres. Schine Theatres, Inc., Chain its subsidiaries Co., Inc., Schine Theatrical Lex- Schine ington Corporation, Enterprises Schine Corporation, Circuit, Inc., and Schine Chesapeake (to- Corporation Theatres gether Circuit), and its known as Schine principal Myer J. and officers May parties John A. were all the al- legedly decree. The remain- contemned ing appellants, Corporation, Hildemart Theatres, Inc., Theatres, Darnell Inc., Elmart (head Howard M. Antevil of Schine legal department), Circuit’s and Donald (president G. Schine of Darnell Thea- tres, Inc., vice-president and a director Corporation, of Hildemart an em- ployee Theatres, Inc.) of Schine Chain were not leged but are al- joined to have with the first named appellants continuing prohibited. there proceedings antitrust The were commenced Circuit August complaint filed with a charging 1 and 2 of violations §§ Act, 2. 15 U.S.C. §§ Sherman Knight and found viola- tried the case Chain v. Schine tions. United States D.C.W.D.N.Y., F.Supp. Theatres, Henry Geller, Atty., Justice, Dept. of Supreme affirmed most The Washington, Hansen, (Victor D. C. R. findings, part re- reversed Atty. Gen., and Asst. Daniel M. Fried respect further manded for Bernstein, Attys., Dept. man and Lewis order the di- the district court’s Justice, Washington, C., D. and John large number of theatres. vestiture Henderson, W.D.N.Y., Atty., O. U. S. Theatres v. United Chain Buffalo, Y., brief), petition N. on 110, 68 92 L.Ed. 1245. er-appellee. eventually proceedings culminated in Raichle, Raichle, of 1949 which the consent decree ordered Frank G. Tucker dispose Moore,Buffalo, (James Moore, all in- N. Y. the defendants O. & specified properties Raichle, Moore, Buffalo, in 39 Jr., terests Tucker & enjoined Y., brief), respondents- them in certain N. on appellants. directed that not less spects. The decree required divesti- one-third than CLARK, Judge, Before Chief 24, 1950, accomplished by June tures be Judges. MOORE, PICKETT Circuit two-thirds less than June requirements extend- These Judge. CLARK, Chief consent orders and various ed January judg nunc appeal order court is an This 17, 1951, gave contempt pro tunc December criminal of conviction ments Evidence § 1438; Wigmore to Ed.2d June the defendants until 1940). (3d order complete Ed. latter divestiture. one-third of provided least that at urged The chief at the defense disposed remaining theatres be during the trial to this two-thirds at least three-year period immediately preceding December the issuance of show cause the order to pres- industry profit movie instituted the so declined The United States peti- filing operations proceedings able existed that no market ent question. 401 for the sale of tion for an directing under U.S.C. § order although found, that, cause to show why they depressed, the market in criminal was still ex be held it isted; violating finding contempt willfully supported by de- and the this for is 10, 1954, cree. On district Government’s evidence sales March similar court order to cause. theatres dur issued an show exhibitors ing who, Judge period. urge Knight, Respondents this same Trial was had before judge that trial sub- died after case committed reversible was him, refusing error mitted to The issue but before decision. allow to Berk, their stipulated employed then witness that Burke who was as should hear ready al- their broker in on the evidence case the sale of these theatres, upon testify response evi- submitted and additional to the in question, respondents dence for “Was and rebuttal market there a for the disposition sale or evidence Government. This of said theatres?” done, error, 27, any, 1956, excluding and on December in Berk’s Findings harmless, filed statement was its Con- of Fact and for the state holding ment respond- only clusions of called Law conclusory that the and willfully ents fully had witness had violated decree. testified to the 19, 1957, On March its facts from which court entered the conclusion could judgment conviction, been and on inferred. March 26, 1957, imposed totaling $73,- it fines disobeying addition the divesti- appeals 000. These followed. requirements, ture the court found charge key respondents contempt specific in the Government’s same in group injunctive provisions continuing (1) named petition was first that in illegal arrangements willfully disobeyed pooling respondents Fostoria, in buying booking provisions Ohio, (2) pictures of the decree. divestiture and respond- they district court found these for theatres in which no finan- provisions interest, (3) acquiring divestiture ents resisted the cial interests by omitting approval, their certain from various theatres without court (4) knowingly receiving published discriminatory and offers advertisements ignoring discouraging licensing sell, by conditions, continuing in- (5) and prospective quiries from brokers in concert with remaining refusing provide respondents. purchasers, Respondents findings op- purchasers prospective (1), (2), (3) with theatre attack the as to erating figures. grounds corporations All of these inde- pendent amply supported the evidence. While Circuit carried out they these of this evidence activities all some spondents’ concerned occurred prior prior statutory period. activities the three- But the limitations, period overwhelmingly supports year statute of of the evidence properly independent as to conclusion that the admitted relevant so-called it respondents concerning corporations (Hildemart, Darnell, of the the intent Elmart) actually purported attempts then and later owned and con- respondents City that, although v. United trolled sell. Kansas Star Co. States, Cir., F.2d the initial acts 240 certiorari of the decree prior statutory 1 L. period, S.Ct. occurred U.S. denied competitors. “illegal” creat to Schine Circuit’s basis which (a) respondents’ order While conduct up of the the date ed continued decree, might seems spirit it violate what cause and resulted show way Here, practicable only “continuing contempts.” to have been the be called States, compliance with them to insure their Gompers 233 U. unlike v. United so- another section of the 604, 610, 58 L.Ed. 34 S.Ct. S. Provision, called Product Limitation specific acts of misconduct where charged licensing Pendergast prohibited them contempts, speci- 419-420, first-run exhibition than more States, major percentages distributors’ fied where 87 L.Ed. ap charge feature films. Since there is no evidence was authorized actively sought in- statute, plicable maintenance it privilege first on the exclusive sisted of conditions violation negotiation totality any dis- respond as to the which is films, tributor’s feature it follows ents. Cf. Bramblett v. United U.S.App.D.C. advantage particular competitive did Similarly evi- violate decree. denied 350 certiorari lacking key aspects (b) McGregor dence is on of 658, 874; United 100 L.Ed. v. (c). showing There is no 583, 584; States, Cir., 4 F.2d 206 182, Circuit received or “terms “test” Franklin, Cir., v. States 187; 7 except Cir., later” licenses films Guertler, on same United States v. offered on that theatre basis to other 796, 797, denied F.2d certiorari operators. Although there is sufficient 879, 1553, 89 L.Ed. U.S. finding support evidence to that, Respondents while contend per- Circuit received alternative licenses enjoined from them the consent decree mitting the of films in either exhibition directly buying booking pictures for an “A” a “B” these theatre and that no financial theatres in which competing licenses were refused interest, prevent not it did them operators, showing the record is bare using accomplish Darnell and Elmart to receipt by any of Schine Circuit of of The result. bald statement same period licenses within the of the statute is its refutation. this contention own limitations. of suggested Respondents’ of construction ignores totally its intent and decree finding, however, The that all purpose. respondents, of the both those who original parties to the consent decree and appears to us district court origi not, those who were ruling charge (4) continued the on to have erred its conspiracy certainly justified by nal is is, however, noted above. the evidence and is free importance, from other at and the error minor tack. The evidence shows justify upsetting not isolated en not does fines violation, instances of conscious respondents. low tered continuous scheme to respondents thwart that the vio er found Respondents urge court’s decree. against knowingly injunction lated receiving, conspiracy charge here, licensing films, in a criminal in the dis contempt proceeding, represents an un criminatory not available to expansion warranted respects: the use competitors (a) by in three charge. original negotiate But having opportunity con first specifically enjoined sent decree pictures top every de offered all ma continuing any distributor; by licensing (b) pic fendants there “[f]rom jor contract, conspiracy, or combination alternative licenses which with under tures person each other or with other not available to all of Schine Cir purpose licensing (c) by which has competitors; effect of main cuit’s taining monopo the exhibition or theatre “test” or “terms later” ba pictures on a equal lies defendants.” And on an while we were not available sis Moreover, An- question. dangers withdrew his inherent are mindful authority clearly over- tevil’s is so judicial extensions unwarranted concurring by testimony whelmingly in- established conspiracy, see doctrine of opinion “ruling”— disputed in Krulewitch troduced after Jackson Justice 445-458, including 440, of Antevil himself—that States, 336 U.S. v. United clearly compelled 790, respondents in we would be hold 716, 93 L.Ed. 69 S.Ct. finding so was not erroneous a that he proceeding in criminal this may Finally, por authorized. there is question the breadth slightest record that indication order issued “[A]n of the decree. respondents court’s misconstrued the the sub jurisdiction over a court “ruling” and, relying it, in- obeyed failed to ject person must be matter and by troduce relevant evidence. is reversed until it orderly proper proceedings.” United urge Respondents vigorously Amer Mine Workers States v. United 22, January the consent order of ica, 67 S.Ct. 330 U.S. pro nunc tunc December Searls, also Worden 91 L.Ed. See forgiveness implicit contained an 853; 30 L.Ed. 7 S.Ct. contempts of decree and Range Co., Gompers & v. Buck’s Stove judicata against res Government 55 L.Ed. this action. The its ac face L.R.A.,N.S., 797, 34 complishes no more than extend the of error claims The several during respondents time which the could all without raised necessary make the sales still be petition for an The Government’s merit. compliance with the decree. While such adequately states cause to show order through reopened a decree constituting the facts essential “the mistake, inadvertence, does or fraud it charged” An- contempt criminal fully correspond underlying not F.R.Cr.P. Schine. G. Donald tevil and agreement parties, between the until that respond- any doubts these 42(b). And is done the court’s order is limited to spe- the may as to entertained have ents the of terms the decree. Utah Power & charges against them the nature of cific Light States, Co. v. United 42 F.2d Government’s soon clarified were 308-309, And, 70 Ct.Cl. 391. since the particulars. of its bill in disclosures purpose proceeding in con criminal conspiracy wording of While tempt is to authority vindicate of slight- petition deviate in court, Gompers v. Buck’s Stove & wording ly of the section of from the Range Co., supra, enjoined the consent decree L.Ed. even if Justice illegal respondents’ con- of continuance Department pri officials entered into a spiracy, no between variance there is agreement vate respondents settlement charged petition in the allege, agreement op such an does not court; proven the lower and that before erate as a defense to this action. O’Mal petition gave respect, also, the in this ley Cir., required respondents notice 676, 685, reversed grounds, on other 42(b). Respondents that claim F.R.Cr.P. L.Ed. during ruling in court the lower urged testimony of certain heat the trial great points on court with this force and hearsay also ruled and inadmissible sincerity. But we are constrained to act to Antevil was authorized say appear issues to us to be in to divest- reference for Schine Circuit nature, Judge factual ing question Burke’s certain theatres. But the are accord with the evidence. authority not relevant of Antevil’s evidentiary then matter before to Convictions affirmed. no means clear And it the court. ruling MOORE, any (dissenting definitive Circuit that the court made matter, respondents’ part). counsel since purpose practices im- to my opinion presents main In its case large respect portant questions secure divestiture of number of law with “the providing field. theatres antitrust consent decrees dispose many in- of all of suits recent times of such defendants shall any government the defend- stituted interest each or have been following per- properties type Fre- ants in concluded quently of decree. pic- vitally will motion con- sons who use them as the decree affects years from duct of ture theatres within three of the defendants. business judgment.” operate entry corporation But through the date of of this can required employees The defendants further its who were officers and purchase actions; responsible “entertain offers for the are for its so also government. Disposition such theatres at time.” “consent” The term acquiescence the theatres to be one-third of connotes year accomplished usually within and the certain one stated IV(A), documents, years (Decree within written balance two document. Such 24, 1949). always immune ambiguity. arises, When this situation provided expressly if The decree is, how is it to be resolved? A decree the defendants “unable sell on effect, in garded. a contract and be so might apply for reasonable terms” ambiguity To resolve permission (Decree IV lease evidentiary principles applicable same (B)). interpreted trial court so effect, apply. to contracts should What decree for he de- found that “The any, given can be the statements fendants were entitled to obtain reason- e., negotiators, the consent decree i. prices required able for the theatres representatives (Finding 35). No. be divested” interpretations the defendants? Are all of the decree and the rapid Because of a deterioration in the decisions business picture (par- business of motion theatres thereunder to be made in convic- fear of ticularly type in the class B the small question criminal if the towns where the divested compliance be close? The effect and located) sought the defendants an scope of consent decrees in this case extension of time for divestiture. the problems raise these which de- must be meantime, subsequent 1949 de- the arriving just termined in at a result. government cree, the discovered vari- provisions ous which it desired to include To reduce the facts to barest out- Accordingly, in an amendment. government, believing after line, negotiations appearing further “it group defend- referred as [the District competition if willfully stifling Court] ants were hereinafter by set forth are practices, their an business instituted complied with, competition in proceeding antitrust them in disposition and the towns by appeal 1939. An the defendants1 required disposed to be of will be Supreme facili- par- therein to the Court was disposition tated” the time for tially was ex- (Schine successful Theatres Chain 24, 1953, to June tended one-third of the undisposed then of balance gov- 1245). Although June 92 L.Ed. two-thirds December proceeded ernment could have a court given, Certain directions were decree, negotiations such as: protracted after Promptly consent signed bearing dated June entry “2. after signatures order, of counsel notify shall defendants govern- public both for defendants and real estate brokers provided ment. The decree for the elimi- that no offer reasonable will be many objectionable nation of business for the fused theatres.

1. Unless otherwise stated “defendants” are Schine defendants. contempt, with from amendments order. ly January by the ment existence and to differentiate between conduct occur- can time to been settled provisions of the decree.” is to divest of criminal defendants to divest and conduct occur- ring by counsel for the petition ary amending order. ring 1953. The Provisions Knight ants] Robert P. Patterson “[T]he tevil for the event that sonable to divest The fact theatre in offer as plus The defendants able offer.” The crucial 1951 would be considered lengthened not dispose “4. ^[*] over glossed consented to of the terms after before the statement asserting, concedes, willfully disobeyed the divestiture only by barred majority opinion government. This and endorsed “Not key affirmed was that the first named terms” (Findings 30-35), prior charges ^[*] Schine is of their theatres to June unreasonable, permitting entry profits extension defendants, defendants, to by question the extending on terms date, and, my opinion, [i. obtained this additional the 1949 decree desired any dispute as a basis for criminal ^[*] consenting shall Order, time only by ignoring by January 22, of the order e., par. have been government. unable the late the District order the Shine defend- ^[*] settlement of the extension of the defendants on willful failure since included leasing 8). signed by “The Howard recognizes January 22, if the Government’s to sell on willful refuse unequivocal- particular objected to” over time -x- a reason- to certain This themselves Honorable petitioner 1952 had convicted respond- “in the govern- offer, (Order, An-M. failure theory group ^[*] Janu- viola- order rea- fail vertisements and offers to sell” ably withholding plished ment that there been tion wording give ture theatres from their were due were discussed before the terms of the negotiate ents tion and insisted “any determination of market value inquiry. Certainly structing could have the order. Yet of placed order were created a reasonable ment or have been participated operating ment officials could into consideration in appellants’ ing arguendo government argues ableness. lations still offer real what was settled The sions Paragraphs ary 22, 1952 tions”. ed Agreements prospective purchasers Fact, to call its failure 1952”. profits court from for acts premised estate brokers willing to violations will private of is no basis for prospective purchasers” (Finding by No. purchasers most Appellee’s brief, p. capable be to list In the figures, notification either become, acceptable. since June 2 and 4 of the order settlement Concl. of refused” 24), certainty, judicial in the divestiture difficulties representative, performed parties, rise theatres” “omitting January 22, upon to extend time are order the factors discouraging prior commonplace government have divestiture accom- ? of ascertainment properties, discourage- punishing light known to factual correctness upon negotiations the aware of this situa- acts “that if determining decree so not, by condone a Law, operating that these matters time of the Janu- to January of such an order failure government prior government fail- theory, “Finally, With inference, certain curative alleged withholding only and brokers no reasonable 1951 be taken published signature Marcus, No. 3. 1952 order. “the stipulations preventing public wilful agreement knowledge demanded to divest or January Govern- have to govern- divesti- was, reason- assum- convic- figures efforts provi- to ob- viola- prob- must upon who who vio- was But bar ad- of finding 32) market litigation. par- (Finding types ed Here in all of disappear” “depressed” open not quarreling “did ties, court was but than rather assumption time, by of resort erroneous an for extension the merits by negotiations supported negotiate. that it “is the Government’s chose These govern- agreement. theatres evidence of of similar sales in an resulted during perio litigant, ment, other this same exhibitors even as be held to its agreements in the anti- d.” field, the consent

trust otherwise any principle there of law which If be completely docu- unilateral a regarded becomes it is that can as fundamental ment. every parcel property differs of real every concept behind This other. is disregard only of does Not specific performance of of the doctrine require reversal 1952 extension order Therefore, proof real estate contracts. findings, divestiture but picture exhibi- of sales other motion supported evi- are not themselves companies theatres in other cities of example, Thus, no is for there dence. different, type where the of comply proof did not that the defendants un- the sale the circumstances specified para- with known, wholly a insufficient base is January graphs 2 and 4 order finding market that “There in fact a significant highly It Sehine] for such to-be-divested [of any proof, government not offer did type 32). (Finding theatres” finding, and there is no the Sehine rejected any reasonable offer defendants only show that evidence offiered to true, this been cer- for theatre. Had a a market existed for the Sehine during period prior tainly period from 1951 was that resulting agreement Jan- order of of movie houses were effected sales government uary 22, 1952 the would exhibitors, three nationwide Loew’s It aware situation. Broadcasting-Para have been Theatres, American very simple incorpo- would have been Theatres, Stanley mount Warner in the decree or the amend- Although rate Corporation. all but one provision had to that divestiture ment required Sehine theatres be sold regardless of a be achieved reasonable “B” inferior located in small houses price. fact, possibility of but government towns, the failed to taking property unlawful lack number, any, what if show thea might process,” “due re- the decree tres sold in 1951-1954 these three give quired the giants Sehine defendants industry of the exhibition away up How- board their theatres. comparable towns, “B” it houses ever, provide. it did not so Nor could successfully attempts by blocked de judicial fiat create However, to elicit fendants this fact. buyer compete who would many, most, if not the houses owned maining Sehine theatres the economic top-flight these three exhibitors were industry justify status would not Therefore, evidence, properties. purchase. such a establishing basis sole the market houses, perhaps “B” the Sehine while majority opinion quite proceeds hardly entirely irrelevant, can be said to correctly theory the failure prove proposition beyond a reasonable contempt a to divest can constitute dou bt.3 for the or- a market existed During only period upon But it sold. then is forced dered to be which a contempt undocument- the District Court’s sustain for failure to divest can be Long Branch, Cir., 1958, review of the made to the 2 2. As The 258 F.2d “clearly Court, erron District e applies vigorously here less doctrine ous” significant government pro- It is which actual those cases were in than findings concerning posed judge no the existence ly made the who tried before for Deep Tankers, of a market the theatres nor findings. Limited v. Sea

561 10, decree was entered the defend- viz., to March based, 1952 (Appel- ants. The exhibition concedes movie the four-wall knowledge brief, p. 19) wallowing lee’s it had bottom at the was business relationship defend- three depression. of the Darnell’s Each a severe en- govern- ants it and the business in which was whom the nationwide exhibitors gaged. entry supposed After market prove a ment used to relationship nu- neither the nor the properties business obtained for the Schine changed. It that Dar- divesti- cannot said their own be merous extensions instrumentality nell houses was formed as an “B” movie ture schedules. evading competi- case the decree as to face the small towns had in Walling Reuter, Inc., in 321 television v. James V. well as drive-ins as 1001, or were, therefore, U.S. 64 88 L.Ed. vulnerable. S.Ct. most including Southport B., houses, Petroleum N. L. R. those Co. v. these Most of losing chain, money 86 L.Ed. 718. dur- S.Ct. ing literally period That con- hundreds defendants were this going opposition sider Darnell “as When out of business. purposes (Appellee’3 contrasted with decree” of financial chaos is state brief, p. 20), e., generally prosperous i. could not sell theatres the then economic it, finding conditions, does market ex- not alter Darnell’s status non-party. houses, un- The attack on is for the “B” is Darnell isted simply govern- another instance of realistic. seeking ment’s to rewrite the consent my opinion, also the District Court decree which it made with the defend- holding individuals, erred in Howard ants. Schine, Antevil and Donald and the cor- only way Antevil, in which Donald poration, Darnell, contempt in for con- Schine and Darnell held con- can be in spiring monopo- with the defendants to tempt adjudged is to be to have aided lize restrain trade in the exhibition violating and abetted the defendants in business. These two individuals and specific provisions of the decree. This Darnell were not named as defendants concept, however, is to used be with the civil action the consent utmost restraint. As Learned judgment entered in the cause in 1949 reversing Hand noted contempt con- purport to, not, did not fact could person viction of a not named as a injunctive An bind them. decree does party: operate personam in rem ignoring Regal procedural does not bind the “It whole world. injunction B., Knitwear Co. v. N. L. R. that the limitations equity may by steps L.Ed. slow 661. Therefore the District Court’s made to realize worst fears of conclusion of law (Concl. 4) judgment jealous preroga- “The those who its Mfg. binding Corp. Staff, court in Civil Action Alemite 223 was tive.” No. * * * upon respondents Cir., 1930, Donald G. ** * Schine, Antevil, Howard M. principal holding basis these * ** Theatres, Darnell Inc. at all non-parties three was Para- through times from June March graph 16, II A Section of the decree 10, 1954” is erroneous. prohibits the which defendants: continuing any corporations, contract, Nor unlike “From Hildemart Elmart, conspiracy, can or combination the claim be sustained reality ego person that Darnell was in the alter each other or with purpose has the Darnell brothers. effect of maintaining long formed in the exhibition or before the 1949 thea- 1947— rely pervasive other elected to on the willful and the more failure to conspiracy, Apparently divest. of it considered its virtually hopeless chances this issue government charged, find, that the or as monopolies defendants tre of provisions of any defendants preventing or violated of other booking, enjoining combin- competing decree block with exhibitor from film, buying ing open them, in towns any from and closed and of defendants or any making agreements. contract, any and master entering into similar event, all doubts eliminated court has conspiracy, this combination for or buying as to the of circuit purpose continuation effect by holding power not straining the defendants monopolizing trade and against receiv- have contemned the ban commerce between States.” ing licensing discriminatory condi- film sweeping merely provision is This original conspiracy no tions. Since against prohibition the defendants longer existed, impossible to hold it was engaging conspiracy. any Act in Sherman Antevil, in Donald and Darnell Schine as defend- The fact that it is valid contempt participating in it. for not enable the ants should would, conclu- I affirm the provision a device twist into contemned sions that the defendants regulating general activities business by acquiring in decree interests persons It the decree. not buying approval, and without Antevil, and be that Donald Schine booking pictures owned for theatres not provi- criminal Darnell have violated the by continuing by them, the Fostoria and so, sions of Sherman Act. If subsidiary Elmart, wholly-owned pool. day in court to con- entitled to their are (whose of Hildemart stock was owned They case. test own the merits by the wives in Schine brothers and their al- to defend their not be forced children), prin- trust for their was the leged guise antitrust violations under the cipal instrumentality perpetrating contemning against a decree entered contempts. these Since the Schine broth- persons. other unchallengeable complete ers had and non-parties Antevil, (except These Elmart, transfer in control fashioning counsel) participate did in by Darnell its theatres Jef- just the terms of consent received Corporation, ferson whose name had it, no benefits from and can be held to changed Elmart, been clear vio- was a only by have contemned it the traditional provision lation of the of the decree for- They application equitáble principles. bidding acquiring the defendants “from dragnet within (cid:127)do come operating financial or in interest sweeping injunction obey en- law except additional theatres an af- after persons. tered showing acquisition firmative that such govern unreasonably Applying principle competi- will not this restrain petition, conspiracy buy in tion.” The ment’s use of Elmart and Antevil, Donald film for the Dar book Isaac like- theatres was aiding disguised flimsily contempt flaunting nell held wise can be abetting Finding decree. the defendants is the same describes how against maintaining subject original prohibition which was the one de- proved pool fendants’ interest action and which therein. Fostoria Regardless of, proved was first, circumvented substitution action, and, then, Darnell the District Court’s Elmart for the impossible Schine Circuit. The makes it decision to find facts set forth finding, including conspiracy. misrepresenta- it was tions made to the District Chain Theatres v. United Court affi- May 1245, plainly Antevil, davits John A. L.Ed. virtually undisputed. buying power Schine, that circuit shows was the Donald Antevil, Darnell, conspiracy monopolize Hildemart (cid:127)crux of Elmart trade. Yet aided abetted the restrain the District defendants in vio- lating apparently opinion provisions the aforementioned was of the that the major had eliminated the decree should be held evil of accountable buying power for their conduct. because it did not circuit family corpora- used defendants to which tions evade the restrictions voluntarily and sub- consented

jected employment of themselves. The corporate viola- form avoids neither letter

tion of decree nor of the Antevil, spirit purpose behind and it. place using position a mem- his compliance

ber of the Bar to obtain employee as an became intra-family guiding hand in Schine’s disobey

machinations to it. While Don- tendency youth

ald Schine’s natural and to honor his father’s miti- wishes gate misconduct, his it cannot cure found, contempt since, as the below knowledge

he had actual joined peril at his the various

schemes contemn it.

Since the on the failure conclusions

to divest to restrain monopolize respond trade those

ents not named in the civil action are

unsupported, proof and since been taken as matters embraced compromised the order of Jan uary I would remand fur resentencing ther in accord procedure ance with the outlined in Yates States, v. United 75-76, 355 U.S. 2 L.Ed.2d v. Nilva Eugene Ives, Kirwan, S. Martin J. S. Irving Sulmeyer, Cal., Angeles, Los Ct. 1 L.Ed.2d 415. appellant. Laugharn, Leoni,

Hubert F. Andrew F. Potts, Jr., Angeles, Cal., Joseph S. Los appellee. FEE, Before CHAMBERS Judges. BARNES, Circuit JACKSON, Bankrupt, Cecil Appellant, M. MENICK, Bankrutcy

A. S. Trustee FEE, Judge. ALGER JAMES Circuit Jackson, Bankrupt, Appellee. Cecil M. duly adjudicated M. Jackson Cecil No. 15826. bankrupt. appointed Menick A. S. Thereafter, Trustee. the Trustee re- Appeals Court of United States exempt property real fused to certain Ninth Circuit. ground that Declaration of Home- improper description that no stead property is contained therein. property exempt declared Referee bankrupt. The District Court re- upon review, holding

versed the Referee Declaration of Homestead invalid. order, appeals Bankrupt from the latter

Case Details

Case Name: United States v. J. Myer Schine

Court Name: Court of Appeals for the Second Circuit

Date Published: Jan 12, 1959

Citation: 260 F.2d 552

Docket Number: 24722_1

Court Abbreviation: 2d Cir.