United States v. Buchalter, 88 F.2d 625 (2d Cir. 1937)

Circuit Court of Appeals, Second Circuit, No. 295, decided March 8, 1937, before Judges Manton, Augustus N. Hand and Chase; opinion by Judge Chase. J. Arthur Adler appeared for the appellants; Assistant Attorney General Robert H. Jackson and others for the United States. A note records that certiorari was denied as to Shapiro, 57 S.Ct. 942.

The appellants, “with eleven other individuals and twenty corporations, were indicted under the Sherman Anti-Trust Act” on four counts: conspiring to restrain, conspiring to monopolize, attempting to monopolize, and monopolizing interstate commerce in rabbit skins. Most defendants pleaded guilty, and only the two appellants were tried. The court notes that the Protective Fur Dressers Corporation was “formed and operated to enable its members to monopolize that industry” and that “Its methods included threats, violence, and other unlawful acts.” The government claimed, and both men denied, “that they were the men behind the scenes who directed the unlawful activities proved.”

On Buchalter, the court found that the only proof was telephone calls between a room in the Arlington Hotel and places he frequented, with “no proof, however, that Buchalter was ever there or that he ever participated in any of the telephone calls.” It held: “Difficulty of proof is no substitute for actuality of proof,” and “there was no substantial evidence to overcome the presumption of innocence, and so it was error to deny his motion.” On Shapiro, the court relied on the testimony of a union official who identified him at a 1932 hotel meeting as “Mr. Gurrah.” The judgment reads: “The judgment as to Buchalter is reversed, but as to Shapiro it is affirmed.”

The opinion does not use the name “Lepke.” This is the antitrust case; Buchalter’s later federal sentence of fourteen years is in United States ex rel. Buchalter v. Lowenthal.