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.-.233eaforcement thatterthe General Counsel stated that the ccessilresults obtained In the instantcasecould not have been obtained without the eeUentand coeration existing beeen the staffmembers of the SEC and of the United States Attorneys officeteorkForeman of the Federal Grand Jury for the Northern District ofNorthern Division has expressed appreciation of the servCaliforniaices rendered by Assistant United States Attorney RobertWoodwardNorthern District of CaliforniaThe letter stated that MrWoodward wasbothccmzpetent attorney andgentltnan vithdeep understanding ofthe complexities of human nature and that he wasvalued factor in theexcellent work being done by the Federal District Court in SacramentoTheChief Postal Inspector has cnmended Acting United Statesand Assistant United States AttorneyAttorney CharlesEggartEdwardNorthernDistrictof Florida on their excellent workStahleyinrecent series of mail fraud trials involvinggroup of defendantswith the staging of fake automobile wrecks for the purpose ofchargedAll of the def erv1 ants who had obtained an esticollecting insurancemated 250000from insurancefirms were found guilty The letterstated that Messrs Eggart and Stahley harkled the prosecutions in anin their Interrogation ofoutstanding maimer and were very testimony in favor ofThethedefentiaitsAssistantStates Attorney ArnoldWeiner District offor his outstanding work In the recentMarylatrial offraud case in which the actualcomplicated and ingenioustrial took four months and the period of preparation preceded thetrial by many monthsThecamnendat ion statedthat Mr Weiner duringmost of the trial worked at least sixty and sometimeseighty hoursthathehadfacetofthematterin mind andcomplexper weekeverythat he was able to present it inmanner worthy of the most experienced trial lawyerhasUnitedbeencndedIF0RMANCEUnited States Attorney WilliamWest III Northern Districthas expressed appreciation for the courtesy and assistanceextended by United States Attorney DonalftBrotzman and his staffDistrict of Coloradoduring Mr Weets recent trip to Denver inconnection withcriminal caseThe letter stated that asresultof the evidenceobtained in Denver and Los Angeles in the case thecourtdenied the defemiantsto prceed inapplications asking leaveforma pauperisofTexas

istant Attorney GeneralMEMOSTheORiSfollowing nioranda and orders applicableto United Stateshave been issued since the list published in BulletinneysOfficesVol.9.ORRAndrettadatedch2k SAttysiar6haiaSUBJECT10aof SectionofOrder No 175-59 Relating toRecommendationsReferred topartnent by Presidents Committeeon Equal En1oynent OpportunityAnenzinezxt-Assimentof Functionsto Presidentsx1ont214.O tunityAssistant Attorney titrust Division2i.l 6l3-29-61U.SAttys.rha1s23aFurther Aniendirnt of Sectionof Order No 175-59 AuthorizingAssistant Attorneys General toAccept21i2MEMOl931ili 6 .SAttys1sba1BJr6ha1srsha1sSUBJECTVoting AssistanceInformation Program-AbsenteeandRevisedPayroll ProceduresRevisedNondiscrimination inEnloynentGUIlE FOBin ConromiseAssignmcnt of Functions Relatingto Presidents Committeeon EqualEnloyment NCUBR EXENS1n an effort to assist all nembersof tbitedStates Attorneys andNarshalsthewith proceduresparticu1arynew enloyeesforofficesandincurring administrative litigativewitnessye haveexpenses-T-------------

235forwarded to all officesProcedural Guide dated April 12this does not includeall instancesit is intended to covereqensesfrequently incurredstItis1961OtheAlthoughtypesofassistants in each officebesuggested that the aIininfatrativestribxion ofresponsible forguide to each Assistant United StatesAttorney and for obtt-nin the cooperation of the staff in con1ying withthe regulationsIf additional copiesare neededplease forward your reAssistant Attorney General AttentionRecordsquest to the MmfnftrativeMmlntstrationOffice

236ANTITRUSTDIVISIONAssistant Attorney General tee LoevingerSHERMAN ACiMilk DistributorsIndictmentFiled Under Sectiontkdted Statesreturned on March 22P1n indictment wasAssociation Inc etin two counts viola1961 bygrand jury sitting in Baltimorechargingtiorzaof Sectionof the iernmn ActThe defendantsit was chargedfixed pricesand allocated among themselvesdistrictsestablished by localfor competitivesealed bids in the supply of milk for schoolgovernmentsMdalusedefendantsandThe indictmentnamedco-conspirator in Countbetween 1946 and 1957Count IIto bids for BaltimoreCity schoolsBaltimorerelating to bids submitted to Baltimore City and to surroundingAlso indictedCounty for the 1959-60 schoolyear named thirteen defendantswere fivewho are charged with key roles in the conspiracyindividua.arelatingestablished by theCountdistrictscharged that the eight schoolfor bidMng purposes were allocated each year among theCity of Baltimorebreak price was established eachyeardefendantsand co-conspiratorthe break price by thoseso that losing bids could be Submitted abovenot allocated the district withoutinterfering with the bid below thebreak price which was submitted by the designated winnerCountseriestheV1result of an agreementreached throughBaltimores Sheraton-BelvedereHotel and atof Sealtestthe bids for the eightone of the defendantsdistrictsand ten County schoolareas were allocated amongIIchargedthatof meetings heldofficesasatCity schoolthe defendant dairies and theirprice was established for thatco-conspiratorscharged thatCounty contractssubmit new bids at fixed pricesintors would win on the 9591960schoolOncemorebreakyearmet the situation ofconspiratorsin November of 1959 by conspiring tosuchinnner that each of the conspirathe area won in the origi nl bidding intheyearThe dollar volume 550000CountyinTheadvertisingwereof schoolmilk amountsannually to approximatelyin BaltimoreCity of Baltimore and approximately 650000schoolmilk business is extremely desirablebØauseof itsthevalueThe case has been assigned to Chief Judge Thomsen and arraignmentsheld April lii 1961 when all defendantspleaded not guiltyStaffPaulA0Ovens LewisDivisionAntitrustRivlin and JacobSilverman

237ClAYTONFALSECLADISand 4A of Clayton Act and FalseComplaints Filed Under SectionAct United States and Tennessee Valley AuthorityWestiniouseElectric Corp etUnited States and Tennessee ValleyE.DGeneral Electric Company etAuthorityEODUnited Statesand Tennessee Valley AuthorityWestouse Electric CoetUnited StatesGeneral Electric CompanyEODOetE.DUnited StatesI-T-E Circuit Breaker StatesCutler-lTnimierettE.D Pa.On April 11 l96I thefiled six more civil oomplai nts se1cFig to recoverDepartment of Justicefrom the manufacturers of heavy electrical eauipnent who werediznagesinvolved as defendants in corresponding indictmentsreturned during theThe products involved are power svitchgear assemearly portion of 1960distribution transformersblies turbine generatorspower transformerslow voltage power circuit breakers and low voltagedistribution eujpeentThe complaints allege that beginning as early as 1956 defendantcompanies engaged in conspiracies to fix prices to allocate governmentalbusiness and to submit rigged bids to governmental organizations andIt is alleged that asresult of the conspiraciesagenciesgovernmental organizations and agencies purchased the electrical equipuentinvolved at high and artificial pricesThe Department has not ccmxpletedits Analysis of government purchase data80 the complaints do notincludeclaim for specificdmge theory nordamagesIn three of the cases the United States is the plaintiffIn theother three cases the United States and the Tennessee Valley AuthorityTvA filed suit jointlyThe joint complaints contain five countseachIn CountstheTVA is seeking treble tiRnuiges under Sectionof the Clayton ActUnderCounts II the United Statesseeks double dmmges plus forfeitures onpurchases by the Faders agenciesexcluding TVA under the False ClaiinAct Counts III are alternative to Counts II and seek single dnangesunder Section hA of the Clayton ActCountsIV are alternative toCountsand ask for doubledunges plus forfeitures under the FalseCl-aimRAct in connection with TVA purchasesCountsare furtherand seek single tlmngesalternatives to Countsunder Section lA ofthe Clayton Act with respect to purchases by TVAIiThe other three complaints contain two counts eachUnder CountsUnited States is seeking dOuble duges plus forfeituresunder theFalse ClaiActCounts II are alternative to Countsand seek singleunder Section 1A of the Clayton ActdlunRgestheIn three of the earlier criminal casesgeneratorspower transformers and turbinepower switchgear assembliesthedefendantcompanies

238pleadediiltycrtminiitotheindicntsTh the other threedistribution transformers low voltageand low volage power circuit breaMrs theentered pleas of onaldDevanydistributiondefendantTurnage RobertRalper LewisOttavianiJohnCrowley HerbertSchoepkeMartinBaithis MortonFine JohnSarbaui WalterStewartHolmesMiller lewis l4arkusFloydand CharlesIIcorresponinJre1ppieAntitrustDivision

CIVIL DIVISIONAs sistant Attorney Genera Wi1llmcoursOrrickJrOF APPEALSCARRIERSCaxnack Amendment to Interstate Coerce ActThat UnitedStiilationStates 1s Entitled to Recover for D1nRge to Perishable Goods Only if CarrierRed Duty to Re-ice Under Applicable Tariff Held Tantanuntto StipulationThat Carrier Red Not Been Guilty of NegligenceCarrier Liable for DamageOccasioned by Perishability of Goods Only if It Failed to Exercise Reasonable.ACareUited StatesMarch 25 1961Three carRea5ing Ccmrpanytermi na becauseoffailureloads of Government beef spoiled in defendantsWhen sued forto re-ice the cars while they were awaiting further shipiientthe resulting iinge defendant carrier relied ontariff provision whichexcused it from its normal duty of re-icing under these particular circumstancesThe United States argued that the exculpatoytariff provisionwas void under the Caick fimndjnnt to the Interstate Cierce Act 149U.S.C1420UIts comun law duty asas an Illegal attenWt to escapecarrierThe district court held that the Carmackenmtit was inapplicablebecausethe loss was caused not by the carrier but by the Governmentsfailure to provide for re-icingThird Circuit affirmedbut ondifferent groundThe courtTheindicated that It agreed with the Government that the CarnEck AmeiiiimntsituationIt held however thatapplied to suchstipulation enteredInto In the district court which provided that the Governmcnt was entitledto recover only if defendant hadduty under the applicable tariff proof excluding the Caxckvision to re-ice at the terminAl had the effectAmendment asbasis for recoveryThe Court concluded tiat the stipu.ation was desigued to precludeand thatrecovery based on neg3.igenceunder the Carmack Amendmentwhich codified the comn law of carriercarrier was liable for the spoilageof perishables only uponliabilityThe Court declared that the stipulation was nottheory of negligencebeing enloyed to determine the controlng law rather it was merelylini nAteintended by the parties i.etoaUbeing given the effectbases for recovery other than the tariffStaffHarold Bigbsn Civil DivisionCOJIIALlAWStatutory Provision Limiting Working Hours of Crews on Tugs NavigatingGreat lakes Held Constitutional as Reasonable Legislative ClassificationUnited StatesMarch 21 1961The 1938Buckeye Steamship Co C.Aamendmnt tothe Act of March Ii 1915 16 U.S.C 673 prow dee In subno licensed officer orin thestance that with certain exceptionsdeck or engine department of any tug documnted under the laws of the Unitedsen

2140Statesht11 be required or permitted tonavigating the Great Lakeswork more than eight hours In one day except in case of extraordinaryemergency affecting the safety of the vessel and/or life or propertyDefendant admitted that it had violated this provisionbut contendedthat the statutediscrimnates arbitrarily against the operation ofGreat Lakes tugs and in favor of the operation of tugs elsewhere inviolation of the due process clauseof the Fifth .AnendmentThe United States brought mitt to recover the statutory penaltyThe districtcourtentered sumnBry judgment for the Government holdingthat the legislationwas valid.183 F. Supp 614 N.D OhioTheCourt of Appeals affirmedIt agreed with the district courtthathasbroad discretion in establishingCongresslegislative classifications and that Congress had not acted withoutrational basis inmki ng this regulat ry provision applicableonly to tugs on the GreatjjlakesStaffMarkJoelsoncivii DivisionGOVET CRACTSProvision in Government ContractThat Title to AU Materials UsedContractual UndertkftgVests in GovernmentUpon Making of PartialPayment Held Binding on Subcontractor NotwithstandingInconsistent Piovision in SubcontractShepard Engineering CoUnited StatesC.AMarch 16 1961The Governmen contractedwith Diamond Building ProductsinCorporationthebombscontractprime contractorfor the productionof aluminum napalmprovided for subcontractsto be sbject to the termsof the prime contractDiamond entered intosubcontract with defendantfor the production of certain componentparts and in which Diamond agreedto furnish the materials to be usedthe prime contractSubsequentlywasamended to provide that upon the mRkng of any paztial paymenttitleto all parts materialsyork in processinventoriesshiulforthwith vest in the governmentand-title tO all like property thereafterTheshall vest in the governmentacquiredDiamond ordered alaminum circles from Kaiser Aluminum Company and had them sent to defendantswarehouse.- The Governmentmade partial paymentsto Diamond prior to thedatethat it was adjudicated -a bankruptthe GovernmentThereafterbrought suit to recover the value of the aluminum circles in defendantspossessionrnmeThe districtcourtgranted the Gomotion for sumnaryIt held thatjudgmentthe Government had title to the alimi ninn circlesbecause of the partial payments it had made and that the athendinenttothe prime contractwas binding upon defendantregardless of any agreementbetween defendant and the prime contractorThe Court of Appeals affirmedIt first rejected defendantsargument that the Government lacked the authority to make the amendmentto the prime contractdefendant10 U.S.Cbecauseasserted2307 andU.S.CO255 which werereted onlyupon by the gotiated contractshad been awarded on bidMngthe prime contractCourt then staed itswhereasTheinr-u

23courts view that the mnded prime contractagreement with the districtwas binding on defendant and erseded any aeement beeen defendantand thecontractor whereby defendant puorted to purchase the alaminun circlespeStaffUnited States Attorney WilliamE WebsterFrancis thrreUAssistant United States AttorneyE.D 14oWNGSBORANDHARBORWORIRSCONSDTIACTFinding of Deputy Commissioner That Claimint Had Permanent PartialatEvenHe Returned to His Former Job AfterInjuryDisabilityThoughTravelers Insurance CompanyMCIUftnsigher Salary Upheld on ReviewMarchClaimant21 1961injured his backDeputy Commissioner C.AAfterofhisin the courseundergoing partially successfulemploymenthereturnedtothesameremedial surgeryjob and athigher salaryClaiimiit then filedclnmbecause ofingeneral antunderActhearingDeputyfound that c1aiits post-injury earnings were notto 33 U.S.Ctruly representative of his earning capacity and awarded him compensationThe district court emphasizing claimfor permanent partial disabilityants increased earnings set aside this award.908hThe Court of Appeals reversedholding that the award was supportedTheCourtin the recordsubstantialevidencewasimpressed by evidencebythat clai1Tnt now needed assistance to perform many tasks which he coulddo alone prior to his injury and medical testimony that his continuingdisabilityimpairment and occupation were incompatible and that seriousThe Court noted that if laiiitwere obligedin the future could resultbecame aggravated before he could fileto wait until his conditionclaim22 of the Act 33he might well find the one-year limitation in dHarold BighmnCivil DivisionOBSCiirfPost Office Determination That Magazines Were Non-Mailable asObscene Because They Aroused Prurient Interest in Homosexuals Upheld onManual EnteiprisesIncReviewC.A D.C March 23 1961In April 1960 postal officialsdetermined that plaintiffsmagazinesinformation as to where obscenematter mightwere obscene and conveyedbe obtainedand that these magazines were therefore non-mailable under18 U.S.C 11161Shortly thereafter an administrative hearing was conAt this hearing psychiatrists testified that the poses of theductedthe clothingnearly nude male models appearing In plMntiffsmagazines1and chains used in somethat they did wear and certainobjects swordsof the pictures were designed to arouse prurient interest in hrnnrsexualsadverThere was also testimony that one could obtain from plaintiffsand that investigations at thetisers even more lasciviousphotographs

V-.---2i2studiosof theseadvertisersresulted in the discovery of what wastermed hard core pOrnOgraphyThe hearing resulted indecisionadverse to plaintiffsThey then brought suit in the district courtSummary juginent was entered in favor of the GovernmentV4TheCourt of Appeals affirmedIt concluded that the psychiatrictestimony constitutedsubstantial evidencein the record to supporttheadministrativefinding that the magazines were intended for homosexualsThe Court rejectedplktntlffsbased on RothargumentsUnited States3511U.S 1176 that the effect on the average person in the cornmrn1tywould not be adverseThe Court noted that the average perso

227 UNITED STAS ATTORNEYS BULLETIN Vol.9 April2l1961 No.8 _ NWAPPOm The nninkt ions of the follawing United States Attorneys have been _ confirmed by the Se ate _ California Southern Francis Whelan Jr Mr Whelan was born December 11 1907 at ONeill Nebraska is mar ned and has two children He attended San Diego State College from 1925 to 1928 and received his LL.B degree from the .