United States v. Braverman

PETITIONER: United States
RESPONDENT: Braverman
LOCATION: Circuit Court of Anne Arundel County

DOCKET NO.: 506
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 373 US 405 (1963)
ARGUED: Apr 22, 1963
DECIDED: May 27, 1963

Facts of the case

Question

Media for United States v. Braverman

Audio Transcription for Oral Argument - April 22, 1963 in United States v. Braverman

Earl Warren:

Number 506, Unites States, appellant versus Jerry Braverman.

Mr. Cox?

Archibald Cox:

Mr. Chief Justice, may it please the Court.

I should like to move the admission of Mr. Frank I. Goodman, of the California and District of Columbia Bars for purposes of arguing this cause on behalf of the United States.

Earl Warren:

[Inaudible]

Frank I. Goodman:

Mr. Chief Justice may it please the Court.

This case is here on direct appeal from the dismissal of an indictment by the District Court for the Southern District of California.

The issue it presents is a simple one; whether Section 1 of the Elkins Act is violated when the transportation manager of a shipper solicits from a carrier a personal kickback not for the benefit of his employer, the shipper, but for his own personal benefit.

The facts alleged in the indictment are briefly these.

The Andrew Jergens Company manufactures and sells cosmetics and toilet articles.

It maintains a branch warehouse and distribution center in Burbank, California from which it ships its merchandise in Interstate Commerce.

Jerry Braverman, the appellee, was employed by Jergens as the transportation manager of its Burbank branch.

During the period in question here, roughly from January to March 1962, Jergens made a number of shipments to points in the Pacific Northwest, utilizing the services of Superior Fast Freight Company, a freight forwarder subject to the provisions of Part IV of the Interstate Commerce Act.

The indictment alleged that on three separate occasions during this period, Braverman, the appellee had knowingly solicited from employees of Superior, rebates and concessions, which if granted would have resulted in the transportation of Jergens' property at a rate lower than that prescribed in the official published tariff of Superior.

The first such rebate was in the amount of 2% of the freight revenues to be derived by Superior from carrying Jergens' property.

The second rebate was in the amount of $200 and the third was in the amount of $150 for every $3,000 of freight revenues, which Superior would earn from carrying Jergens' merchandise.

On the morning of the trial and before the empanelment of the jury, Judge Mathis invited Counsel to the bench and there conferred with them as to the legal merits of the indictment.

Counsel for the Government conceded that so far as this evidence showed, the rebate or concession had been solicited solely for the personal benefit of the appellee, not for Jergens' benefit.

On that ground, Judge Mathis dismissed the indictment issuing a minute order in which he said that in as much as no benefit was intended for Jergens, the indictment failed to charge a crime under the Elkins Act.

Earl Warren:

[Inaudible]

Frank I. Goodman:

So far as I know, it was not.

Earl Warren:

[Inaudible]

Frank I. Goodman:

I don't believe it would Mr. Chief Justice.

Now the statute that we are concerned --

Potter Stewart:

Does it indicate whether or not anybody else -- any fellow employee knew about this?

Frank I. Goodman:

The record doesn't show that Mr. Justice Stewart.

The statute we are concerned with is set forth on page two of the Government's brief.

The pertinent part begins about nine lines down and reads as follows.

It shall be unlawful for any person, persons or corporation to offer, grant, or give, or to solicit, accept or receive any rebate concession or discrimination in respect of the transportation of any property in Interstate or Foreign Commerce by a common carrier subject to the act, whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier.

If appellee's Counsel were represented here, I would expect him to argue two things.