Freedman v. United States

MORTON, Circuit Judge.

The defendant and eight others were indicted for a conspiracy to violate sed ion 10 (3) of the Interstate Commerce Act, 49 USCA § 10 (3), by obtaining transportation in interstate commerce of carloads of grapes at less than the established rates by means of false and fraudulent claims for damage to the goods while in transit. It was alleged that the conspiracy was made in New York on August 15, 1930, and continued until the indictment, and that it extended into the District of Massachusetts. Three overt acts were alleged; the first two were ruled out by the trial judge and have become immaterial; the other was that the defendant, Freedman, ,on or about June 25, 1933, in furtherance of the conspiracy, consulted with officials of the New York, New Haven & Hartford Railroad Company at Boston. The jury convicted Freedman, and he has appealed.

The first question is whether the indictment alleges an offense under the statute above referred to. Section 10 comprises four subsections, each of considerable length. The general purpose of the section as a whole is to penalize, on the one hand, the granting of favors or rebates by the railroad and the obtaining or acceptance of them by the shipper, under whatever form or guise such unlawful action may take; and, on the other hand, to protect the carriers against frauds perpetrated on them by misrepresentation as to the character, amount, weight, etc., of the goods transported, or by fraudulent claims for damages. Subsection 3, for conspiracy to violate which the defendant was indicted, relates to the latter aspect of the statute. It makes criminal attempts to cheat the carrier by false billing, classification, weights, or contents, and by false and fraudulent damage claims. United States v. Union Mfg. Co., 240 U. S. 605, 36 S. Ct. 420, 60 L. Ed. 822.

It is contended for the defendant in an addenda to his brief that the two clauses of this subsection denounce different crimes, and that the present indictment is not good under either. No exception or assignment of error raises this issue, and the ease was tried on the theory that the means employed in obtaining transportation at less than the established rates'were those described in the second clause of paragraph (3). The court so instructed the jury, and no exception was taken to this part of his charge. It is well settled that the allegations' respecting the purpose of a conspiracy need only be sufficient to show that it was of criminal character, and to describe it with sufficient certainty so that the record will bar a second prosecution for the same offense. Frohwerk v. United States, 249 U. S. 204, 209, 39 S. Ct. 249, 63 L. Ed. 561; Hogan v. United States, 48 F.(2d) 516 (C. C. A. 5); McDonnell v. United States, 19 F.(2d) 801 (C. C. A. 1); Wong Tai v. United States, 273 U. S. 77, 81, 47 S. Ct. 300, 71 L. Ed. 545. The purpose of the conspiracy charged, as stated in the indictment, was “wilfully and knowingly to obtain transportation in interstate commerce by railroad of numerous carloads of grapes at less than the lawful transportation rates by means of false damage claims,” etc. Such a conspiracy is clearly criminal under the statute ; and it is unnecessary to decide whether, as a matter of strict criminal pleading, subsection 3 creates two independent crimes, or, as we incline to think, a single crime which may be committed in various ways.

The next question is whether the evidence warranted a conviction. It is raised by the defendant’s exception to the refusal of the trial judge to direct a verdict of not guilty. The government’s evidence showed that the defendant Freedman corrupted the defendant Gordon, a freight agent of the New York, New Haven & Hartford Railroad at West Farms, N. Y., by arranging with Gordon that he should make false notations of damage in transit, on carloads of grapes which would be shipped to West Farms on the procurement of Freedman, and that Freedman would pay him 10 per cent, of the amount for which the damage claims based on such-notations were adjusted. Following this agreement, there was an enormous increase in the number of carloads of grapes shipped to West Farms station during the fall of 1930. Full freight was paid on them when they arrived. Gordon made false notations of damage; and Freedman undertook to collect on the false claims against the New York, New Haven & Hartford Railroad Company. In connection with that effort he came to Boston in June, 1931, to confer with the railroad officials — the conduct which is alleged as an overt act in the indictment.

There is no direct testimony that the conspiring parties regarded the. expected receipts from false damage claims as reductions on transportation charges, but — on the evidence —they certainly made false claims for damages. Moreover, the jury might well believe that ears controlled by the conspirators were consigned to West Farms, out of the ordinary course of business, in order to obtain an advantage through false damage claims which would cut down the net transportation cost and .thereby make it advantageous to do business in that way. We think the trial judge was right in submitting the ease to the jury.

It is earnestly contended for the defendant that the single overt act above referred to, proof of which was essential to the conviction, could not be considered, because it to'ok place after the transportation had been fully completed and the charges for it paid, and after the conspiracy was terminated. This is an erroneous view of the matter. The purpose of the conspiracy was by no means complete when the grapes were delivered and the freight was paid. The vital part of it, the presentation and collection of false damage claims, was still to come. It was in furtherance of that very object that Freedman came to Boston.

The other exceptions have been examined and considered. They seem to us clearly unfounded and not to require discussion. The ease was submited to the jury under a charge which was unusually full, fair, and able.

The judgment of the District Court is affirmed.