decided: October 3, 1949; As Amended October 7, 1949.
Before BIGGS, Chief Judge, and McLAUGHLIN and O'CONNELL, Circuit Judges.
Stefanowicz was brought to trial in the United States District Court for the Eastern District of Pennsylvania for alleged violations of the Second War Power Act of 1942, 50 U.S.C.A.Appendix, § 633 et seq. and General Order No. 8 (OPA Rationing Regulations, 8 F.R. 3783). The information contained eleven counts. Counts 1, 3, 5, 7 and 9 charged him with willfully and unlawfully transferring counterfeited sugar stamps to one O'Neill on specified dates during November and December, 1945. Counts 2, 4, 6, 8 and 10 charged Stefanowicz with willfully and unlawfully transferring the same number of stamps having the same value at the same times in a way and for a purpose not permitted by any rationing order. The remaining count charged a sale of sugar on December 14, 1945 at a price higher than the maximum permitted by Price Regulation No. 421, 10 F.R. 1492.
The jury found the defendant guilty on counts 1, 3, 5, 7 and 9 and not guilty on counts 2, 4, 6, 8, 10 and 11.That is to say: Stefanowicz was found guilty in respect to those counts charging willful and unlawful transfer of counterfeited ration stamps but not guilty as to the counts charging the passing of ration currency in an illegal manner or of selling sugar at a price above the ceiling price.
At the appropriate times the defendant moved for a judgment of acquittal and for a new trial basing his motion in part on the contention that the United States had failed to prove the passing of counterfeit stamps at the times alleged and also had failed to prove the defendant's connection with that crime. The trial judge denied the motions. See D.C., 81 F.Supp. 974.
On appeal Stefanowicz contends that the trial judge erred in denying his motion for judgment of acquittal inasmuch as no counterfeited ration documents were presented in evidence as having been transferred or caused to be transferred by him. A brief review of the evidence presented below is therefore necessary.
The pertinent OPA practices were succinctly outlined by a witness who was the former head of the Sugar Division of the OPA for the Philadelphia area. The individual purchased sugar from a retailer by surrendering ration stamps. The retailer attached all the stamps he received to sheets upon which the retailer placed his name as if endorsing a check. These sheets were deposited with the wholesaler who issued in return an equivalent poundage of sugar. The wholesaler deposited the sheets in his rationing bank account from which he could draw checks for sugar from the refinery. The banks sent the ration stamps to a verification center which in turn sent counterfeit stamps back to local OPA offices for investigation.
Swartley testified that he was a former OPA employee trained in detecting counterfeit ration stamps. He said that counterfeit stamps on sheets signed with O'Neill's name had been returned to the Philadelphia office by the OPA verification center.
O'Neill testified that during 1945 he was a retail grocer in Philadelphia and a member of the Richmond Grocery Association of which Stefanowicz was president; that he, O'Neill, purchased sugar stamps from Stefanowicz at certain times in November and December, 1945, which he returned to the Richmond Grocery in the usual manner in return for sugar. O'Neill also identified checks signed by him and made payable to Stefanowicz or to cash, bearing Stefanowicz' endorsements for amounts O'Neill said he paid defendant for stamps. On cross-examination O'Neill was handed 260 counterfeit stamps on sheets which the government had marked as an exhibit for identification. Asked whether these were the same stamps he had gotten from the defendant, O'Neill answered, "I couldn't just identify the stamps, because the stamps all look alike to me but they look like the same stamps." O'Neill was then asked: "Then you can't identify the stamps you got from Mr. Stefanowicz?" He answered, "No, I couldn't say I could identify them." He was next asked: "You don't know whether these are the stamps that you obtained from him?" He replied: "No. I couldn't say that." He also testified that he obtained sugar stamps from two individuals other than the defendant and that he never bought any counterfeit stamps.
It is apparent that there was evidence upon which the jury could base a finding that Stefanowicz illegally sold ration stamps to O'Neill. There was also testimony that O'Neill had negotiated counterfeit ration stamps. The evidence also would have sustained a charge that Stefanowicz knowingly deposited or uttered counterfeit stamps received from O'Neill in the Richmond Grocery Association's account at a bank. The stamps which the defendant sold to O'Neill may or may not have been counterfeit. But no connection was established between the stamps which the defendant illegally sold to O'Neill and the counterfeit stamps which O'Neill had used for the purchase of sugar and which were offered in evidence. The testimony established only that O'Neill had illegally purchased stamps, had unlawfully purchased sugar and had turned counterfeit stamps over to the defendant who endorsing O'Neill's name and writing "Clem"*fn1 on the sheets to which the stamps were attached, deposited them. As we have stated there was a verdict of not guilty as to those counts which charged improper sale of ration documents. But the verdict of guilty was obtained on counts charging Stefanowicz with transfer of counterfeit stamps. The language of the information used in these counts charged that the defendant "* * * willfully and unlawfully transferred and caused to be transferred to Gerard O'Neill counterfeited ration documents * * * having reason to believe that the said documents were counterfeited * * *."
There is literally no evidence that the counterfeit stamps offered in evidence or any other counterfeit stamps were transferred by Stefanowicz to O'Neill. Since an essential link is missing, the United States has failed to establish its case as to the only counts on which a verdict of guilty was returned. There is strong probability that Stefanowicz was guilty but the guilt of a defendant must be proved, not merely vehemently suspected in order to sustain a conviction. The cases cited by the learned trial judge in his opinion, 81 F.Supp. at page 975, viz. Petrilli v. United States, 8 Cir., 129 F.2d 101 and United States v. Adelman, 2 Cir., 107 F.2d 497 can, we think, be adequately distinguished.
The other points raised by Stefanowicz are without merit.
The judgment of conviction will be reversed and the cause will be remanded to the District Court with the direction to ...