UNITED STATES v. ROSENBERG et al.
No. 8.
Circuit Court of Appeals, Second Circuit.
July 17, 1945.
Writ of Certiorari Denied Oct. 15, 1945. See 66 S.Ct. 90.
The proper construction of the statute was brought home to the court, since it was the most stressed legal point in the case; and three requests to charge in particular asked for a statement that Friedman had no “right and privilege” to drive without regard to speed and the safety of persons on the highway, or in a dangerous, reckless, or wanton manner, or at a rate of speed in excess of that which was reasonable and proper under the conditions, and further that nothing contained in the direction to him to report promptly to the Sparkhill headquarters granted him such right and privilege. True, on the theory here stated these requests did not express the full rule of law, since even if he lacked the privilege his good faith might excuse him. But I think they, as well as the general arguments as to the statute, put the court on warning of the necessary interpretation; and in a case of this novel importance and serious consequence, a meticulously framed exegesis of the law was not to be required of plaintiffs for the preservation of their appellate rights. The court made thorоughly clear its different interpretation of the statute, both in its charge and later in its opinion denying the motion to set aside the verdict. D.C.S.D.N.Y., 57 F.Supp. 52.
No other case goes as far as this in extending the statutory exemption. Our previous Gaglio case, cited in the opinion, supra, was one not of reckless conduct during an air raid drill, but of compliance by the elevated railway with normal regulations of the black-out period. The state case of Lofaro v. Bee Cab Corporation, 180 Misc. 756, 43 N.Y.S.2d 737, quite properly and pointedly suggests that the statute does not provide a blanket immunity frоm liability to all motorists using public highways at night in accordance with wartime regulations, a suggestion repeated in the advice that insurance coverage was needed for a state military ambulance. Aug. 29, 1944, Ops. N. Y. Att‘y Gen. The case of Jones v. Gray, cited in the opinion, supra, too shows that an air raid warden may be held for collision and, by its contrast, perhaps the more emphasizes the dangers of a rule allowing a living defendant‘s statement of his own subjective intent so extensive a scope as here. For in that case the air raid warden was deceased, and the court allowed the jury to infer absence of good faith from the circumstances there present. Here the circumstances certainly tended to show an absence of good faith on the part of Friedman in intending to comply with the order to drive at a speed reasonable under the prevailing conditions, and that issue should not have been removed from the jury.
Henry G. Singer, of Brooklyn, N. Y. (Sol L. Firstenberg, of New York City, on the brief), for appellant Rosenberg.
M. M. Kreindler, of New York City (Abraham S. Robinson and Sol L. Firstenberg, both of Nеw York City, and Harry Silver, of Brooklyn, N. Y., on the brief), for appellant Freier.
M. M. Kreindler, of New York City (Sol L. Firstenberg, of New York City, on the brief), for appellants Ferenc Weisz, Ernest Weiss, and Irene Weisz.
Sol L. Firstenberg, of New York City (M. M. Kreindler, of New York City, on the brief), for appellant Friedman.
Harry E. Kreindler, of New York City (M. M. Kreindler and Sol L. Firstenberg, both of New York City, on the brief), for appellant Eisler.
Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y. (Milo F. McDonald, U. S. Atty., of Brooklyn, N. Y., on the brief), for appellee.
Before SWAN, CHASE, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
The seven defendants herein were convicted under the usual conspiracy statute,
Before considering the claimed errors at the trial, we shall dispose of the important issues of law stated above. The constitutional objection is based upon the grant of authority to the President to prohibit the export of munitions or supplies of war whenever he “determines that it is necessary in the interest of national defense” to do so.1 Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446, stated limits to the power of Congress to delegate its legislative powers to the President; and A. L. A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, and United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, held unconstitutional grants of authority to the executive to formulate both policy and the applicable standard. There is some thought that these preсedents have lost vigor of recent years; be that as it may, we are clear that they do not apply here, for the statute does itself define policy and set a definite standard. This was part of an extensive statute “to expedite the strengthening of the national defense,” 54 Stat. 712, passed just after the fall of France, when the invasion of England appeared imminent. Those were days of fear and stress for us, as well as for our later allies; that Congress, having defined the policy of prohibiting or curtailing supplies neеded for defense, could not leave to the Chief Executive, the Commander in Chief of the Army and Navy, the time and detail of its execution would surely seem a harsh, impractical rule, and one more strict than the precedents support. Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 102, 103, 63 S.Ct. 1375, 87 L.Ed. 1774; National Broadcasting Co. v. United States, 319 U.S. 190, 216, 63 S.Ct. 997, 87 L.Ed. 1344; United States v. Randall, 2 Cir., 140 F.2d 70; United States v. Von Clemm, 2 Cir., 136 F.2d 968, 970, certiorari denied 320 U.S. 769, 64 S.Ct. 81, 88 L.Ed. 459. Moreover, the delegation of authority may be upheld on another ground, that of the traditional dominance of the Executive in the conduct of foreign affairs. The statutes involved in the Schechter and Butler cases dealt with purely internаl affairs, while the statute here in issue provided for “national defense” by regulating “exportation” of war munitions, and thus concerned very vitally this country‘s relations with foreign nations. In fact the leading case which points out the President‘s greater power over the conduct of international affairs and freedom from restriction to an extent not permitted in internal matters, United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 322, 57 S.Ct. 216, 81 L.Ed. 255, cited as examples of such power the early acts of 1794 and 1795, 1 Stat. 372, 401, 444, authorizing the President to lay, regulate, and rеvoke embargoes and to permit the exportation of arms and military stores, notwithstanding statutory prohibitions. See also Id., 293 U.S. 388, 422; United States v. Bareno, D.C.Md., 50 F.Supp. 520, 522, 523; United States v. Kertess, 2 Cir., 139 F.2d 923, certiorari denied 321 U.S. 795, 64 S.Ct. 847, 88 L.Ed. 1084; McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy, 54 Yale L. J. 181, 244-255, 1945. We do not doubt the validity of the statute.
Next as to the claim that all prose-
tend that Congress, in extending the scope of the Act, meant those who violated the earlier, more limited statute to escape prosecution. True, the later statute also specifically designated the Board of Economic Warfare as the agency of control. But this, too, was neither new nor repugnant to the earlier statute. For the President as early as September 15, 1941, had instructed the Board to “exercise and perform all powers and functions * * * under section 6 of the act of July 2, 1940.” Executive Order 8900, 3 CFR, Cum.Supp., 1009; see United States v. Bareno, supra.3 Actually the 1942 Act simply continued the then existing system of administration. It must be read as postponing the date of expiration of the 1940 Act and as authorizing the present prosecution. This was the conclusion not only of the learned judge below, but also of Judge Kennerly in United States v. 251 Ladies Dresses, D.C.S.D. Tex., 53 F. Supp. 772, and United States v. 8 Automobiles, D.C.S.D. Tex., 53 F.Supp. 775.4
The claimed errors at the trial require consideration of the evidence for the prosecution. On February 1, 1941, defendants Rosenberg and Freier met with the coconspirators Hersch Neumann, Abe Neumann, and Arnold Weisz at the office of a friend
After the first shipment to Portugal, Abe Neumann, Hersch Neumann, Freier, Rosenberg, Arnold Weisz, Koppel (the defendant who pleaded guilty), and Irene Weisz met and decided to take some platinum to Canada. Thereafter Koppel, Arnold Weisz, Freier, Rosenberg, and the two Neumanns contributed funds for the purchase of 120 ounces of platinum; and Abe Neumann, Arnold Weisz, and Irene Weisz took part of the purchase to “Ernest Weiss‘s place to give it over to him,” where it was pаcked by Ferenc Weisz in a suitcase with a double bottom.5 Ernest Weiss then took the platinum to Canada, but brought it back without making a sale there because he was afraid to sell. Thereafter Ferenc returned the platinum to the others, who later shipped it to Portugal.
About May, 1941, Arnold Weisz undertook to send further parcels to Lisbon by
Defendants attack the sufficiency of the proof to convict; but in addition, each vigorously asserts the prejudicial effect upon his case of a variance from the charge of a single conspiracy to the proof of three separate and distinct conspiracies: the boat shipments, the trip to Canada, and the shipments by clipper. This claim, not at all unusuаl in a conspiracy case, is here developed with such earnestness as to constitute, with the legal issues considered above, the chief grounds of this appeal. There can be no doubt, however, that at least the Canadian transaction was closely tied to the scheme to ship platinum to Portugal. For the most part the same parties were involved; the trip to Canada occurred in the interim between the first and second shipments by boat; the platinum used was part of a larger purchase and wаs finally sent to Portugal. Nor is the cry of variance justified with respect to the proof of shipments by airplane. Though these are somewhat more disconnected from the other transactions, so far as the proof shows, we may not usurp the place of the jury to view them as entirely separate matters. The United States did show that Arnold Weisz, one of the chief conspirators, participated in all the transactions; that he had at some time discussed the possibility of airplane shipments with Hersch Neumann; and that
these shipments were started at about the time of the last shipment by boat. This was sufficient to justify the jury, in the light of the careful instructions it received from the court, in finding a close interrelation between this and the other transactions. United States v. Valenti, 2 Cir., 134 F.2d 362, certiorari denied Valenti v. United States, 319 U.S. 761, 63 S.Ct. 1317, 87 L.Ed. 1712; United States v. Cohen, 2 Cir., 145 F.2d 82, certiorari denied Cohen v. United States, 323 U.S. 799, 65 S.Ct. 553.
But even were we to conclude that the airplane scheme was not connected with other transactions, the objection is not of serious consequence in the present setting. For as this court pointed out in the Cohen case, supra, 145 F.2d 82, 88, 89, per L. Hand, J., “it comes to no more than that, instead of being triеd upon a single ‘scheme,’ the accused were tried upon three ‘schemes’ at the same time. As variance, it would not have mattered if the prosecution had wholly failed to prove any joint ‘scheme’ at all; but had only proved the two local ones. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, definitively held that the question in each case was whether any practical prejudice resulted to the accused from such a variance.” Here no such prejudice appears. Just as in the Cohen case, all the transactions аre crimes of the same kind and could have been joined and pleaded in separate counts, even though the confederates were not the same in all.
Passing this objection of variance, therefore, the evidence against these defendants appears clearly sufficient to go to the jury. Thus Rosenberg and Freier were at the very heart and center of the conspiracy. Ferenc Weisz, in addition to his connection with the Canadian transaction already noted, was shown to have acted as agent for his brother Arnold in receiving in the latter‘s behalf part of the proceeds from one of the shipments by boat. He also typed an insurance policy whereby Freier guaranteed his associates against lоss. Irene Weisz, in addition to her activities already discussed, carried the platinum which Ernest Weiss had returned from Canada, and which Ferenc Weisz had brought back to the office of the Neumann brothers, from that office to the office of her brother Arnold, for the purpose of transferring it to Silva, an officer of the ship “Pero d‘Aleriquer,” for transmission to Lisbon. She was also present at a meeting which discussed a further shipment to Portugal on the ship “Guine” and obtained passes in the name of her brother Ernest to go aboard that vessеl for the purpose of interviewing a member of the crew. Again she brought to the Neumanns’ office money which Arnold Weisz owed to the conspirators as his contribution to one of the boat shipments. In addition to Ernest Weiss‘s activities in connection with the Canadian transaction, the evidence showed a payment to his bank account from the Chase National Bank of $8,943; and the jury was not limited in the inferences it might draw by his own testimony that he knew no more than that this money belonged to his brother Arnold and that he paid it all to Arnold.
Possibly somewhat more doubt may exist as to the defendants Friedman and Eisler; but, if so, it was a doubt to be resolved by the jury. Thus Friedman, who rode in the taxi with Arnold Weisz when the latter delivered the platinum to Mezenen, denied any knowledge prior to Arnold‘s delivery of
As to Eisler, the prosecution showed that in order to accomplish the first boat shipment of platinum, Rosenberg, carrying platinum in his pocket, and accompanied by Hersch Neumann, went to Eisler‘s office. Rosenberg entered the office while Neumann waited outside. After ten minutes Neumann went into the office and found Rosenberg and Eisler engaged in a conversation. When Rosenberg came out he did not have the platinum with him. Since the platinum was later received in Lisbon, and since Eisler admitted that he knew the first officer of the “Concalho Velho,” the jury could properly infer that Eisler engineered the final stages of the shipment. Even though this may not show Eisler‘s dirеct knowledge of the full nature of the scheme and of the participation of other conspirators, the complicated nature of the transaction was sufficient in itself to tell him that Rosenberg had not been acting alone; this was clearly sufficient to make him a coconspirator with the others. United States v. Compagna, supra, 2 Cir., 146 F.2d 524, 536; United States v. Liss, supra, 2 Cir., 137 F.2d 995, 1000, 1001. And as we have pointed out above, under the circumstances here shown, Eisler would have been properly convicted even had he thought Rosenberg the only coconspirator and even had this particular transaction in fact been separate and distinct from the others.
The trial was long and was fairly conducted. Most of the errors assigned as to it depend on the contention discussed above that the proof showed three separate and distinct conspiracies, instead of the single one charged. We need note further only certain of the objections to the admission of evidence. The court properly allowed testimony to the effect that Freier entered into а written agreement with Arnold Weisz and Rosenberg insuring their interest against loss in case the United States entered the war. Whatever Freier did to induce or make attractive the continuance of his confederates in the illicit business was probative against him. And, once the conspiracy was established, it was relevant as against the others as incidental to the transactions effectuating the illegal scheme. The court also committed no reversible error in admitting a statement of Friedman‘s bank account, showing large deрosits during the period here involved, as well as the platinum which was taken from Mezenen. Both these exhibits were certainly relevant as against Friedman. Again they became relevant against the other defendants, once the conspiracy was shown (as indeed the court stated in making its rulings). Even had the defendants’ theory of separate and distinct conspiracies been accepted, none of this evidence had enough connection with separate conspirators to suggest prejudice. Freier‘s agreement implicated himself and his promisees only; Friedman‘s access of wealth had little bearing on remote conspirators; while the admission of the platinum, even though it was the only production of “the valuable metal for all to behold,” as defendants say, can hardly have been so dazzling in view of the convincing evidence of the other extensive dealings in platinum. The necessity of weighing the evidence separately as to each accused was brought home to the jury by the court‘s detailed charge and statement as to each one.
Affirmed.
CHASE, Circuit Judge (concurring).
I concur but, as I believe that the delegation of power to the President found in